What are NFA Weapons?
There are two kinds of firearms under U.S. (federal) law, title 1 firearms and title 2. Title 1 firearms are long guns (rifles and shotguns), handguns, firearm frames or receivers, and most NFA weapons are also title 1 firearms. Title 2 weapons are NFA weapons. Title 2 of the 1968 Gun Control Act is the National Firearms Act (26 USC sec. 5801 et seq.), hence NFA. Title 1 is generally called the Gun Control Act, (18 USC sec. 921 et seq.). NFA weapons are sometimes called class 3 weapons, because a class 3 SOT (see below) is needed to deal in NFA weapons.

These weapons may also be further regulated by states or localities, and while these weapons can be legally owned under federal law, some states and localities further regulate ownership or prohibit it (see below). The NFA Branch of ATF administers the National Firearms Registration and Transfer Record, which necessarily encompasses most of the NFA regulation.

NFA weapons are: machine guns, sound suppressors (a.k.a. silencers), short barreled shotguns, short barreled rifles, destructive devices and "any other weapons". A machine gun is any gun that can fire more than one shot with a single pull of the trigger, or a receiver of a machine gun, or a combination of parts for assembling a machine gun, or a part or set of parts for converting a gun into a machine gun. A silencer is any device for muffling the gunshot of a portable firearm, or any part exclusively designed or intended for such a device (see discussion below). A short barreled shotgun is any shotgun (shoulder fired, smooth bore) with a barrel of less than 18" or an overall length of less than 26", or any weapon made from a shotgun falling into the same length parameters. A short barreled rifle is a rifle (shoulder fired, rifled bore) with a barrel length of less than 16", or an overall length of less than 26", or any weapon made from a rifle falling into the same length parameters (like a pistol made from a rifle). In measuring barrel length you do it from the closed breech to the muzzle, see 27 CFR sec. 179.11. To measure overall length do so along, "the distance between the extreme ends of the weapon measured along a line parallel to the center line of the bore." 27 CFR sec. 179.11. On a folding stock weapon you measure with the stock extended, provided the stock is not readily detachable, and the weapon is meant to be fired from the shoulder. A destructive device (DD) is a explosive, incendiary or poison gas weapon, or any firearm with a bore over 1/2", with exceptions for sporting shotguns, among other things (see discussion below). Any other weapons (AOW's) are a number of things; smooth bore pistols, any pistol with more than one grip,(but see below) gadget type guns (cane gun, pen gun) and shoulder fired weapons with both rifled and smooth bore barrels between 12" and 18", that must be manually reloaded (see discussion below). These definitions are simplified, to see if a specific gun is a title 1 or 2 firearm one needs to refer to the specific definition under the statute(s), and possibly consult with the Technology Branch of ATF. There is also case law on the issue of whether a specific item falls into one of these categories.

Owning or making an NFA weapon
It is illegal for anyone to have possession of an NFA weapon that is not registered to them in the NFA Registry. It is also not possible for anyone, except government entities, to register an existing NFA weapon that is not registered, except immediately after one is made by a class 2 NFA manufacturer. An individual otherwise able to own any gun under federal law can receive and own any NFA weapon (local law permitting, ATF cannot approve a transfer where federal, state or local law would be violated by the transferee possessing the weapon in question, see 26 USC sec. 5812(a)(6)) on a Form 4, "Application for Tax Paid Transfer and Registration of Firearm". Non-FFL holders may only purchase an NFA weapon from a dealer or individual within their own state. If the weapon is located out of state it must be transferred to a class 3 dealer within the state, before transfer to the non FFL purchaser. C&R FFL holders (type 03) may purchase C&R NFA guns from out of state dealers and individuals. Type 01 FFL holders may purchase any fully transferrable (no dealer samples, see below) NFA weapon, from an out of state source. If the FFL holder is an individual he must submit fingerprints, photograph, and the law enforcement certification.

The transfer involves paying the transfer tax, which is $200 for all the NFA weapons, except AOW's for which the tax is a mere $5. Individuals also have to get one of several specified local chief law enforcement officers to sign the form (see the section on the law enforcement certification for more information), submit their fingerprints in duplicate, and attach photos of the transferee to the form. While the transfer tax is levied by law on the transferor (seller), in practice the transferee (buyer) is expected to pay the tax. Transfers to individuals tend to take at least 4 months, although subsequent transfers can be quicker.

Or you can make any NFA weapon, except for machine guns (see below), by filing a Form 1, "Application to Make and Register a Firearm", and paying the $200 making tax, which applies to all of these weapons, including AOW's. You may not make the proposed weapon until the Form 1 is returned to you approved. The law enforcement certification, photos and fingerprints also apply to Form 1's, and in fact to any transfer to an individual. Additionally the manufacturer of any NFA weapon, including an individual making one on a Form 1 must mark the receiver of the weapon with the maker's name and city and state. NFA Branch can grant exemptions from this for DD's. All types of corporations, including corporate type 01 FFL holders, need not do the certification, photo and fingerprint requirements. Any of the forms listed, and the fingerprint cards, are available for free from ATF, either in Washington, D.C. or your local office.

The original of the paperwork, particularly any that have tax stamps on them (Form 1 or 4) should be kept in a safe place. ATF can demand to see the form (see below on your 4th amendment rights). On a tax paid transfer, ATF puts a tax stamp, like a postage stamp (or like the one that caused the American colonists to take up arms), on the document. You paid $200 (or $5) for it, and it is worth that. It is unwise to lose the original form. They should be kept in a safe deposit box. Tax exempt forms (Form 2, 3, 5, 6, 10) have no tax stamp, and a copy of the form from ATF, should the original be lost, will be fine. ATF can give you a new tax stamp should you lose one, but expect a hard time, and they have discretion in doing it. It is not unheard of for ATF to have no record in their computer of a weapon registered to you. The paperwork can avoid a lot of hassles. Additionally, if the gun in question is a machine gun, not having the paperwork can lead to being charged with a violation of 18 USC sec. 922(o). A federal circuit court of appeals has ruled (U.S. v. Just, 74 F.3d 902 (8th Cir. 1996)) that sec. 922(o) prohibits possessing all machine guns, and it is an affirmative defense to such a charge that the weapon was legally possessed before it took effect. It is up to the defendant to prove such a defense, but usually by a lower evidentiary standard than the government needs to prove to show a criminal violation (usually preponderance of the evidence versus beyond a reasonable doubt). It is not up to the government to prove the weapon was not registered, for a charge under sec. 922(o). If you don't have the paperwork, and it isn't in ATF's computer, (it is likely they will check, even though they don't have to prove non- registration, they don't want someone to wave a registration form in their face during a trial) you can have a serious problem.

Taxpayer privacy
The transfer paperwork is nominally a tax return; the purpose of the registration, and the National Firearms Registration and Transfer Record (Registry) is keeping track of who owes the tax. ATF takes the position that taxpayer privacy laws apply to a transfer form, and that they may not discuss a pending transfer with anyone but the taxpayer, who is the transferor (seller), as he is responsible for the tax by law. This also serves to allow ATF to refuse to discuss why a transfer is taking so long with the party who is most interested in that question, the transferee (buyer). However, in another context (releasing information under the Freedom of Information Act) ATF has decided that as to a Form 4, the tax form is a joint return between the transferor and transferee, (see 1980 Auto Ordnance Corp. memo) so in that case the transferee should be entitled to the information about the application on the same basis as the transferor. That is not the usual practice, however. The NFA also prohibits the use of Registry information obtained from natural persons (only) for any law enforcement purpose except prosecutions for making a false statement on a transfer form (26 USC sec. 5848). Other tax laws prohibit the release of transfer information, as a tax return, except for certain narrow law enforcement type circumstances. See 26 USC sec. 6103.

However, as most NFA weapons are also regulated by the GCA, purchases from a dealer require the completion of the standard 4473 yellow form, as well as dealer bound book records, and this source of information is not so similarly restricted. ATF may release this information to local law enforcement for a host of law enforcement purposes. (18 USC sec. 923(g)(1)(D)).

Tax exemptions
Law enforcement, states, and local governments are totally exempt from the making and transfer (either to or from) taxes, but must comply with the registration requirements. While the NFA only specifically provides that there is no transfer tax due when the US government is the transferee, (26 USC sec. 5852(a)), or a state governmental entity (26 USC sec. 5853(a)), ATF has made up an exemption from the transfer tax where any US or state governmental entity is the transferor, see ATF Chief Counsel Opinion numbers 20023 and 20400. Abuse of that exemption, as in transferring guns through governmental entities so as to avoid transfer taxes, has been prosecuted. See U.S. v. Fleming, 19 F.3d 1325 (10th Cir. 1994).

Federal government agencies, the military, and National Guard need not comply with the registration or tax requirements, and generally speaking NFA Branch removes weapons from the Registry once they are transferred to the federal government.

There is no tax on transfers to anyone of a weapon that is unserviceable. Making a weapon unserviceable means it is permanently altered so that it cannot work, and is not readily restorable. For example a gun can be made unserviceable by welding the chamber closed, and welding the barrel to the receiver or frame. An unserviceable weapon is sometimes called a DEWAT, for DE-activated WAr Trophy (see below).

There is no tax on a transfer to a lawful heir from the owner's estate. Lawful heir just means someone named in a will to get the weapons, or a person entitled to inherit under the applicable intestacy laws if there was no will, or the will did not apply. The heir must be able to own the weapon under state and federal laws. The heir will have to do all the other steps of a transfer to an individual. Unless the heir is a class 3 he may not inherit post-86 machine guns (and would also need the police demo letter, see below). ATF is supposedly now allowing non licensed heirs to inherit pre-86 sample guns, a change from past policy. A weapon to an heir may also be transferred interstate, if need be; the gun need not be transferred to a dealer in the heir's state, if the deceased owner resided in another state.

Special (Occupational) Taxpayers (SOT) under the NFA are exempt from some of the making or transfer taxes. All SOT holders may transfer weapons between themselves tax free. However a transfer between an individual and a SOT will require the tax. And unless one has a class 2 SOT, there is a tax on making an NFA weapon, except for making by or on behalf of a government entity. Sole proprietor SOT's need not get the law enforcement certification for any transfer, except DD's (unless they have the appropriate FFL), even for their own personal collection, although in that case they should pay the $200 transfer tax. They also need not attach a photo to the transfer paperwork, nor submit fingerprints. The Crime Bill (9/14/94) now requires these things with FFL applications, and SOT applications, however, and ATF was requiring them even before that became law, since early 1994. If one plans to engage in business in NFA weapons, one needs to be a SOT, just as one needs the FFL if they plan to engage in the business with regular firearms or ammunition.

The classes of SOT holders

• importer of NFA firearms
• manufacturer of NFA firearms
• dealer in NFA firearms

A class 1 or 2 SOT may also deal in NFA firearms. A class 3 SOT costs $500 a year, due each July 1. A class 1 or 2 SOT costs $1000 a year, except that SOT's who did less than $500,000 in gross receipts in business the previous year qualify for a reduced rate of $500 per year, also due July 1. One must also have the appropriate FFL to engage in the specific activity, as well as the SOT. This is because most NFA weapons are also title 1 weapons, and thus both the law regulating title 1 weapons (the GCA) and title 2 weapons (the NFA) must be complied with. As with the privacy of Registry information and transfer information, SOT status is also protected tax information, and ATF will not release lists of SOT holders, as they will of FFL holders.

A Class 2 SOT can make, tax free, machine guns, silencers, short rifles, short shotguns or AOWs. A class 2 can also have weapons transferred to him tax free, by other SOT's. He also has to have a type 07 or type 10 FFL. He does not need to ask prior permission of ATF to make a weapon, he would notify ATF of its making within 24 hours of its making by filing Form 2 with ATF. He could also import foreign made NFA weapons, for R&D use (one of each, not a bunch of each model). To import a machine gun (only) a class 2 would need a letter from a governmental entity able to own the weapon requesting a demonstration. A weapon imported for R&D must be exported or destroyed when the R&D is completed, whereas a weapon imported for sale to a government entity would be considered pre-86 dealer samples. To import for sale to government entities you need a Class 1 SOT.

A sole proprietor SOT may keep any NFA weapon he has after surrendering his SOT, as his personal property, except post-86 machine guns, discussed below. If ATF thinks, based on the number of weapons retained and the timing, that your SOT status was used to evade the transfer taxes, they may demand tax on all or some of the guns, although you will be entitled to a credit against that for your annual $500 or $1000 SOT tax. Conceivably you could also be prosecuted for tax evasion.

Special treatment of certain weapons
Destructive devices are treated differently, in terms of manufacturing or dealing. One must have a special FFL, (type 9, 10 or 11, to deal, make or import respectively) and be a SOT to make one tax free or deal in them. But anyone can make them on a Form 1, tax paid.

Machine guns are also treated differently. In 1986, as part of the Firearm Owners' Protection Act (FOPA), Congress prohibited individuals from owning machine guns, and made it an affirmative defense that the machine gun was registered before the act took effect (which was 5/19/86). See 18 USC sec. 922(o) for the law. Thus as an individual you can only legally own a machine gun that was registered before that date. Any registered after that date can only be owned by SOT's, law enforcement, and government entities. A SOT may not keep these machine guns after surrendering his SOT. In order to transfer one of these machine guns, the SOT must have a request from an agency able to own one for a demonstration. Or an order from one of those agencies to buy one. A class 2 SOT can make machine guns for research and development purposes, or for sale to dealers as samples, or for sale to government entities. These are commonly called post-86 machine guns.

On top of the FOPA machine gun restrictions, any NFA weapon imported into the US after the Gun Control Act took effect (end of 1968) cannot be transferred to an individual. See 26 USC sec. 5844. They can be transferred to SOT's, without any police demonstration request, and kept by the SOT after surrendering his SOT. These are sometimes called "pre-86 samples", or "dealer samples", although dealer sample can be used to refer to either a post-86 machine gun or any NFA weapon imported after 1968.

Transporting NFA firearms
In terms of moving the weapons around, the following applies. If you are transporting the weapons within your state, it is wise to keep a photocopy of the registration paperwork, whatever it is, (can be Form 1, 2, 3, 4, 5, or 10, as well as other more exotic forms of registration, except you probably would never have a gun on a Form 10, unless you were the police, in which case no one is likely to hassle you about a gun you might have anyway) with the gun. Federal law does not expressly require it, but it would be foolish not to have ready proof the gun is legal. Many states do require it, they ban all or some NFA weapons, and exempt from the ban those possessed in compliance with federal law. In such a state you need the federal paperwork to be legal under state law. If you were a SOT you should keep a copy of your proof of being an SOT with the paperwork when you move the guns around. But an individual who surrenders his SOT can still have weapons that will be registered on a Form 2 or Form 3 legally, so not having a copy of the SOT with such paperwork proves nothing. You need not ask ATF for permission when you move to a new address within the same state, nor must you advise them of your new address.

To move weapons between states two rules apply. An individual must get permission from ATF to move machine guns, short rifles, short shotguns or destructive devices between states (or to temporarily export them) before doing so. This includes taking them somewhere to shoot them, or when moving. There is a form called a 5320.20, and ATF will always approve them, and fairly quickly, assuming the purpose (generally stated) for the movement is legitimate, and the target state allows the weapon in question. A type 01 FFL can move weapons (except DD's) interstate at will, no permission is needed. But while most states that otherwise prohibit some or all NFA weapons have exceptions for SOT's, or FFL's, a few do not, and thus the person must make sure he will not be breaking any laws. An unlicensed individual need not ask permission to move AOW's or suppressor's interstate, again watch the laws at the target state. Having the approved 5320.20 form for a suppressor or AOW can avoid hassle while traveling. Lots of folks who think they know something about the NFA don't know you only need permission for interstate movement of some NFA weapons. ATF will approve a 5320.20 for suppressors and AOW's; they will approve a 5320.20 for an FFL also, even if he doesn't need it by law. ATF will also now approve a form 5320.20 for a period of one year, covering blanket travel to a specific location, if you travel there frequently. A C&R FFL holder can only move C&R NFA guns interstate without a 5320.20. See 18 USC sec. 922(a)(4) for the law imposing the 5320.20 requirement.

A lost or stolen NFA firearm
A lost or stolen NFA firearm can be a real problem. It can be a very expensive loss, as well as endangering the continued lawfulness of owning NFA firearms, both at a state and federal level. Contrary to what you might hear, NFA firearms, machine guns and silencers in particular, are very rare in crime. A significant source of such weapons in crime is stolen NFA firearms, from law enforcement, the military and civilian collectors. A crime spree with a stolen NFA firearm can lead to restrictive state or local legislation, as well as local law enforcement refusing to continue providing the law enforcement certification needed for transfers to individuals. Safeguarding NFA firearms is not required, but seems to me to be extremely prudent, both to preserve the firearm, as well as its continued legal ownership. Reporting the theft of an NFA weapon to law enforcement is the only way to even have a chance at recovering the gun, and preventing its use (or further use) in crime. I think reporting its theft is a good idea. Below is what is required, as opposed to what is a good idea.

ATF has made up a rule, 27 CFR sec. 179.141, that requires the owner of a lost or stolen NFA weapon to make a report "immediately upon discovery" to ATF including the name of the registered owner, kind of firearm, serial number, model, caliber, manufacturer, date and place of theft or loss and "complete statement of facts and circumstances surrounding such theft or loss." However Congress has passed no law authorizing ATF to make such a requirement, and at a 1984 Congressional hearing then ATF Director Stephen Higgins admitted there is no penalty for not complying. See "Armor Piercing Ammunition and the Criminal Misuse and Availability of Machineguns and Silencers", Hearings Before the Subcommittee on Crime of the Committee of the Judiciary House of Representatives, Ninety-Eighth Congress, Second Session, May 17, 24 and June 27, 1984, Serial No. 153, G.P.O. 1986, page 129.

However, if one is a FFL holder, one is required by law to report the theft or loss to both local law enforcement and ATF. As part of PL 103-322 (Crime Bill) (9/13/1994), 18 U.S.C. sec 923(g) was amended to require, "(6) Each licensee shall report the theft or loss of a firearm from the licensee's inventory or collection within 48 hours after the theft or loss is discovered, to the Secretary and to the appropriate local authorities."

ATF has created interim rules to implement PL 103-322, and they are a little more specific, and a little more onerous:

27 CFR Sec. 178.39a Reporting theft or loss of firearms. Each licensee shall report the theft or loss of a firearm from the licensee's inventory (including any firearm which has been transferred from the licensee's inventory to a personal collection and held as a personal firearm for at least 1 year), or from the collection of a licensed collector, within 48 hours after the theft or loss is discovered. Licensees shall report thefts or losses by telephoning 1-800-800-3855 (nationwide toll free number) and by preparing ATF Form 3310.11, Federal Firearms Licensee Theft/Loss Report, in accordance with the instructions on the form. The original of the report shall be forwarded to the office specified thereon, and Copy 1 shall be retained by the licensee as part of the licensee's permanent records. Theft or loss of any firearm shall also be reported to the appropriate local authorities. Sec. 178.129 Record retention. * * * * * (b) Firearms transaction record, statement of intent to obtain a handgun, reports of multiple sales or other disposition of pistols and revolvers, and reports of theft or loss of firearms. * * * * * * Licensees shall retain each copy of Form 3310.11 (Federal Firearms Licensee Theft/Loss Report) for a period of not less than 5 years after the date the theft or loss was reported to ATF.

This reporting requirement only applies to FFL holders, that is folks licensed by ATF to make, sell, import or collect guns. This does not include folks who just own an NFA weapon.

Repairing NFA weapons
As it is illegal for anyone to have possession of an NFA firearm that is not registered to them, getting the guns repaired, or worked on, can be a hassle. There are two choices: if the gunsmith is in the same state as the registered owner the owner can take the gun in, and wait while it is worked on. If the owner cannot wait, the gun must be transferred to the gunsmith, on a Form 5, and returned to the owner by filing a Form 5 to transfer possession back to the owner. If one wishes to have an out-of-state gunsmith work on the gun, even if the owner can wait with the gun, the owner must either transfer it to the gunsmith, or file the form 5320.20 to move it interstate to the gunsmith. One need not be an SOT to have NFA weapons transferred to him for repair. One does need to have a type 01 FFL to work as a gunsmith though. NY, in a fit of benevolence, allows licensed gunsmiths there to receive machine guns for repair, when machine gun possession there is otherwise limited to the police, and manufacturers with government contracts. When submitting a Form 5 for repair one checks the "Other" box in item 1, type of transfer, writes in "repair" next to the box, and submits a letter detailing (generally, e.g. "The purpose of this transfer is to have the [weapon] refinished.") what is to be done. The back of the form, with the certifications and photograph need not be completed. The turnaround time on Form 5's for this purpose seems to be at least a month, or a minimum wait of two months, to transfer it to the 'smith and back. There is no transfer tax.

Penalties for NFA violations
A violation of the NFA can result in a felony conviction, punishable by up to ten years in prison, and/or a $250,000 fine. See 26 USC sec. 5871. The US Sentencing Guidelines ordinarily require prison time, even for a first offense, however various mitigating and aggravating factors can raise or lower the possible sentence range for a first offense.

The statute of limitations on violations of the NFA is three years, with the possibility of extension of that time to six years for some wilful violations. See 26 USC sec. 6531. The statute of limitations does not begin to run on possession offenses until the possession stops. As long as you possess the contraband item, you are in danger of being prosecuted.

In addition any NFA weapon EVER transferred or registered in violation of the Act is subject to civil forfeiture. See 26 USC sec. 5872. A forfeiture proceeding is separate from any criminal prosecution, and a resolution of a criminal proceeding in favor of the defendant will not preclude a forfeiture action. See U.S. v. One Assortment of Eighty-Nine Firearms, 465 U.S. 354 (1984).

A violation of 18 USC sec. 922(o) of the GCA can also bring up to a ten year prison sentence, and or a $250,000 fine. Again, prison time is likely, even on a first offense. Using a machine gun or a silencer in a crime can result in a sentencing enhancement of thirty years, even if there is no NFA prosecution. See 18 USC sec. 924.

In short, these are serious penalties. NFA regs are a pain, and in my opinion, contrary to the Constitution. Ignore them, and get caught, and you will pay a very high price.

Additional info sources
One of my main sources of information is a magazine called Machine Gun News. It is quite good for sorting out the intricacies of the law, as well as info on guns, suppressors and other NFA stuff. Well worth a subscription, I think. Costs $34.95 for a 1 year subscription (12 issues) from, P.O. Box 459, Lake Hamilton AR 71951. Or call (501) 525-7514. They can take your MasterCard or Visa over the phone. They also put out a book called the "Machine Gun Dealer's Bible", by Dan Shea, for $64.95 plus $4 shipping.

Another good source of information is the ATF publication, "Federal Firearms Regulations Reference Guide" ATF P 5300.4 (10-95). It contains the GCA, NFA, and the regulations promulgated under those laws, as well as other useful information. Unlike the old "Red Book", (this has a yellow cover), this one has the Crime Bill, and Brady law in it. It also has the Brady regulations, and the interim Crime Bill regulations. ATF also publishes a compilation of state laws, "State Laws and Published Ordinances-Firearms", ATF P 5300.5 (10/94). Both are free from ATF. To get forms, or the books, you can write to ATF Distribution Center, PO Box 5950, Springfield, VA 22150-5950. Or phone them at (703) 455-7801. Or your local ATF office should be able to supply them also.

Some handy ATF phone numbers:

• NFA Branch (202) 927-8330 - This is the office that handles all transfers of NFA weapons, and maintains the Registry.
• NFA Branch FAX (202) 927-8601 - You can fax Form 2's and 3's in, Form 5 transfers for repair, 5320.20's and probably others as well. Check with NFA Branch to be sure your faxed form will be acceptable. Also see ATF Ruling 89-1.
• Technology Branch (202) 927-7910 - This is the office that makes all determinations as to whether something falls into one of the NFA categories, as well as determinations as to importability, and many other technical issues to things regulated by ATF (at least as to firearms).
• Import Branch (202) 927-8320 - This office handles permits to import firearms, parts and other related items regulated by federal law.

This certification is not really a big deal for the chief law enforcement officer (CLEO) making it, and it DOES NOT expressly make the CLEO legally responsible for the weapon or your use of it, or its theft. I have not heard of any successful case against a CLEO for signing the certification for a gun that was criminally misused. That is, in my opinion, a spurious excuse for not signing. There is even a case addressing this issue, Searcy v. City of Dayton, 38 F.3d 282 (6th Cir. 1994). The estate of a drug dealer murdered by an off duty Dayton, Ohio, police officer with his personally owned "Mac-11" machine gun sued the city that employed the cop. One of the grounds for suit was the police chief's having signed the transfer paperwork for the murder weapon. The court held that that claim should have been dismissed by the trial court; without a showing that somehow the act of signing was negligent, (under Ohio law) and led to the harm (murder) complained of, there was no cause of action. Signing the form was not negligent in itself, nor was it a reckless or wanton act, as the trial court claimed the plaintiff could try to prove at trial. Although this case is only directly binding on the area of the 6th circuit, and need not bind state courts, the court recognized what common sense, and the certification say, the person signing does not open himself up to any liability by doing so.

The case is something to which you can point a CLEO who claims to refuse to do the signoff because of liability. Incidentally Stephen Halbrook, a leading lawyer in gun rights cases, and a longtime lawyer for the NRA, as well as an author, says in a note in Machine Gun News (3/95) this case is the only instance of a registered machine gun being criminally misused by its registered owner he is aware of. And it was by a police officer.

The key to getting the LE certification is persistence.

7342. Penalty for refusal to permit entry or examination. Any owner of any building or place, or person having the agency or superintendence of the same, who refuses to admit any officer or employee of the Treasury Department acting under the authority of section 7606 (relating to entry of premises for examination of taxable articles) or refuses to permit him to examine such article or articles, shall, for every such refusal, forfeit $500.

They claims this right extends to examining your business records, and firearms. This would only apply to your NFA firearms, although they could presumably examine other guns to make sure they were not NFA firearms, and subject to the law. This is not subject to the controls found in the GCA, noted above, as the legal basis for the search is not found there. So they could claim a right to do this sort of search once a month, or once a week. I am not aware of any current abuse of the authority under this section. While the regulation made by ATF only applies this authority to SOT's, the statute itself is not so limited. At least one court case has suggested this power is available to search an FFL holder who is not an SOT. (U.S. v. Palmer, 435 F.2d 653 (1st Cir. 1970)).

As to one who is neither a FFL nor SOT, but only owns weapons regulated under the National Firearms Act, the law seems clear, but practice is a little murky. ATF may only compel you to show an agent upon request the registration paperwork, that is the Form 1, 2, 3, 4, 5 or whatever else might have been used to register the weapon. See 26 USC sec. 5841(e). They do not have any right to compel you to show them the weapon. However they apparently (I have no first hand knowledge) take the position that they can compel one to show ATF the weapon upon request, even if the owner has no FFL. As always the Fourth amendment applies, and ATF may not enter your home or other place of storage of the NFA weapon, nor seize the weapon, without a warrant, or without falling under an exception the Supreme Court has created to the operation of the Fourth amendment. They should also need a warrant to compel a non-FFL holder to show them the weapon, and I would insist upon that, myself.

Thus the question to be answered in deciding if a weapon is an AOW would be, does it fit into any of the three categories below:

• 1) Is the weapon both not a pistol or revolver, and capable of being concealed on the person?
• 2) Or is it a smooth bore pistol or revolver? Examples of this include the H&R Handy-Gun, or Ithaca Auto-Burglar gun. This does not include weapons made from a shotgun. That would be a short barreled shotgun. The receiver of a smooth bore pistol, in order to be an AOW, must not have had a shoulder stock attached to it, ever. The shoulder stock attachment deal on some H&R Handy Guns, with a stock, will make them into a short barreled shotgun.
• 3) Or is it a combination gun, a shoulder fired gun with both rifled and smooth barrels between 12" and 18" long, and which has to be manually reloaded? Examples of this include the M-6 military survival gun, with a single shot barrel in .22 Hornet, and a companion .410 shotgun barrel, as well as some models of the Marble's Game Getter.

Weapons that fit the first category above are commonly called gadget guns; pen guns, stapler guns, cane guns, alarm clock guns, flashlight guns, the list of objects is pretty long. A few have been removed from the scope of the law because their collector status makes them unlikely to be misused; original Nazi belt buckle guns for example. See the C&R list for these.

If a gun has rifled barrel(s) of less than 16", and it has never had a shoulder stock it would be a pistol, unless it either has no grip at an angle to the bore, or if it has more than one grip. ATF has made the questionable decision that a handgun with more than one grip is an AOW. This is based on the gun a) being concealable on the person, and b) not meeting the definition of a "pistol" in the regulations promulgated under the NFA, since they say a pistol has a single grip at an angle to the bore. However, at least one federal court has decided that if the grip is added later, the gun is not "originally designed" to be fired by holding in more than one grip, and thus putting a second grip on a pistol does not make it an AOW. Whether ATF will regard the decision as binding beyond that case is unknown, I would doubt it. The case is U.S. v. Davis, Crim No. 8:93-106 (S.C. 1993) (Report of Magistrate, June 21, 1993). By the same token in mid 1996, ATF decided that "wallet" holsters for small guns, from which the gun could be fired, somehow are AOW's. This would affect, for example, the North American Arms mini-revolver and the wallet holster NAA sold for the gun, as an accessory. ATF seems to be thinking that the grip has disappeared, and thus it fits into the first category. This strikes me as bizarre and stupid, and I suspect the courts will have their shot at it, given how common the wallet holsters are. What if you put the gun in a purse, from which it can be fired? A folded up newspaper? How are those different than a wallet holster?

27 CFR sec. 179.11 - "pistol. A weapon originally designed, made and intended to fire a projectile (bullet) from one or more barrels when held in one hand, and having: a) a chamber(s) as an integral part(s) of, or permanently aligned with, the bore(s); and b) a short stock designed to be gripped by one hand at an angle to and extending below the line of the bore(s). The term shall not include any gadget device, any gun altered or converted to resemble a pistol, any gun that fires more than one shot without manual reloading, by a single function of the trigger, or any small portable gun such as: Nazi belt buckle pistol, glove pistol, or a one-hand stock gun designed to fire fixed shotgun ammunition."

There is also a revolver definition, but it does not add anything except a provision for guns with revolving cylinders, rather than permanent chambers.

Note that this definition is only in the rules for the NFA, and not the GCA. It is designed to interact with the AOW definition. For example even though this definition excludes such things as the .410 T/C Contender pistol from the pistol definition, it is also not an AOW as it has a rifled bore. And it is also a handgun under the GCA. The NFA statute does not define "pistol" or "revolver". I think that excluding handguns designed to be fired when held in two hands is not necessarily justifiable. But it allowed them to declare that an HK SP-89 pistol with a K grip is an AOW. As is an M-11/9 or TEC-9 with a foregrip. The Auto Ordnance 1927-A3 pistol is apparently exempted, for historical authenticity.

Some examples of what is a DD and what is not:

• Muzzle loading cannon - NOT, as it is an antique design, unless it has some special features allowing breech loading.
• Explosive grenade - is a DD
• Molotov cocktail - is a DD
• M-79 or M-203 40mm grenade launcher - is a DD
• Smooth bore 37mm projectile launcher - not a DD. Not even a title 1 firearm. This item falls under the "not a weapon" (signaling device) exception, I believe. Generally a large bore device for which no anti-personnel ammo has ever been made will NOT be a DD. This used to be true of the 37mm guns. However, according to ATF, some folks have started making anti-personnel rounds for these guns, and ATF has ruled that possession of a 37mm launcher and a bean bag or rubber shot or similar round is possession of a DD, and at that point the launcher needs to be registered. Put another way, before you make or buy anti-personnel rounds for your 37mm launcher, register it as a DD. The rounds themselves, not being explosive, incendiary or poison gas, are not regulated in themselves either. It is just the two together. See ATF Ruling 95-3.
• 40mm grenade for an M-79 or M-203 - a DD.
• Non-explosive 40mm practice ammo - not a DD. Commercial making of it would require a type 10 FFL though, as although the ammo is not itself classified as a DD, making ammo for a DD requires the FFL.
• Non-sporting 12 gauge shotgun - is a DD, because it has a bore over 1/2", and is not exempted unless it meets the "sporting use" test. Check out the case Gilbert Equipment Co., Inc., v. Higgins, 709 F. Supp. 1071 (D. Ala. 1989) for how the sporting use test has been re-interpreted from what it meant when the law was enacted to having ATF be arbiters of what is "sport".
• Flame Thrower - not a DD, nor even a firearm. Unregulated as to possession, under federal law. Great way to clear snow off the driveway.
• Japanese Knee Mortar - A DD. Even though there is no available ammo for it, explosive or otherwise, and hasn't been since 1945, because anti-personnel ammo was made for it in the past, it is a weapon. As it has a bore over 1/2" and isn't sporting, it is a DD.

As can be seen this covers improvised sound suppressors, and component parts of a sound suppressor. There is no thresh hold level of sound reduction for something to fall under this definition. ATF used to require the device "appreciably" lower the sound (see Revenue Ruling 57-38); now the working definition seems to be anything that traps gas from the muzzle of the gun, or from porting of the barrel, is a sound suppressor. In general recoil compensators and flash hiders do not fall under this definition, but some designs could fall into the category. As with any borderline device the thing to do is to get a written opinion from the Technology Branch of ATF. It is what they exist to do.

Note that the silencer definition applies only to devices for firearms, i.e. powered by an "explosive". An air gun silencer is not covered. But if it can be used on a firearm it would be. Thus an airgun silencer permanently attached to the airgun, or too flimsy to be used on a firearm, should be exempt. If you have an interest in pursuing this line of thought submit a sample or drawings to ATF Tech. Branch. I am not aware of any airgun silencer currently made, or determined to be exempt from this definition. But clearly there is room under the definition for such a gadget. Likewise, since antique guns, as defined in the GCA are not "firearms", a silencer for such a gun is not, or should not be, covered. Perhaps one fitted permanently to a pre-1899 gun? The mind reels.

The NFA law also defines "rifle":

26 USC sec. 5845(c) "The term 'rifle' means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned or made or remade to use the energy of an explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.

Thus you can see why a machine gun is not also a short barreled rifle; it is not a rifle. And you can see why a barrel is not subject to regulation, or registration, in itself. It is a barrel, it cannot discharge a shot. A receiver alone is also not a short rifle; a short rifle is only a complete weapon that fits into the length parameters outlined.

ATF takes the position that this includes any combination of parts from which a short barreled rifle can be assembled. And they said this included a set of parts with dual uses. In the Supreme court case of Thompson/ Center Arms v. US, - U.S. - (1994) ATF said it was a set consisting of a receiver, a 16"+ barrel, a pistol grip stock, a shoulder stock, and a barrel less than 16 inches long. The idea of the kit was that you needed only one receiver, and you could have both a rifle and pistol in one gun. While making a pistol out of a rifle is making a short rifle, ATF has long approved of converting a pistol into a rifle, and then converting it back into a pistol, that was not an issue. T/C made one set on a Form 1, then sued for a tax refund, claiming the set was not a SBR, unless it actually was assembled with the shoulder stock, and short barrel, something they instructed the purchaser of the set not to do. The Supreme court disagreed with ATF, and agreed with Thompson/Center.

The court said that a set of parts was not a short barreled rifle, unless the only way to assemble the parts was into a short barreled rifle. As this set had a legitimate, legal, use for all the parts it was OK. However they also approved of lower court cases holding that the sale by one person, at the same place, of all the parts to assemble an AR-15, with a short barrel, was sale of a SBR, even if they weren't assembled together at the moment of the bust, and had in fact never been assembled. See U.S. v. Drasen, 845 F.2d 731 (7th Cir. 1988). This was because the only use for the parts was a SBR. If the person in that case also had a registered M-16, then there would be a legitimate use for the SMG barrel, and there shouldn't be a problem. And the Court agreed, of course, that a fully assembled rifle with a barrel less than 16", or an overall length of less than 26" was also subject to registration. Although it was not addressed in the case, the rule is that an otherwise short barreled rifle that is very easily restored to firing condition (readily restorable); e.g., one missing a firing pin, but for that pin one may substitute a nail or other common object, is also subject to the law.

Therefore, if one has a semi-auto HK-91, and an HK-93 converted with an auto sear, and having a barrel less than 16 inches, one may not remove the sear from the HK-93 and put it on the HK-91. That would leave the semi-auto pack from the HK-91, and the receiver/barrel combination from the HK-93; a set of parts for assembling a rifle, and said rifle would have a short barrel, and further not be registered. I think that if one disposed of all trigger packs one had, except the one the sear was in, one could legally swap it between the rifles, without having to register the HK-93 as a SBR. The leftover HK-93 receiver and barrel setup would not be capable of firing a shot, with the parts in the possession of the owner, except with the sear converted pack, and using that on it would be OK. HOWEVER, I think ATF would disagree, would probably claim the resulting half of a gun was an "unservicable" short rifle or some other non- sense, and would prosecute should such an arrangement be attempted. If someone is serious about doing this, they need to ask Technology Branch if they will go along with the reasoning outlined. If they didn't, one would need to sue, rather than have to fight it in a criminal, rather than civil, context.

		state MG  SI  SR  SG  AOW  LBDD  EXPDD  Comments 
		AK    Y   Y   Y   Y   Y    Y     Y  
		AL    Y   Y   N   N   Y    Y     ?
		AR    Y   Y   Y   Y   Y    Y     ? (state registration of pistol
		                                    cal. MG's over .30) 
		AZ    Y   Y   Y   Y   Y    Y     Y   
		CA    Y   N   Y   Y   Y    Y     Y (requires discretionary and
		                                    rarely issued permit for mg, 
		                                    lbdd or expdd from state Dept. 
		                                    of Justice; no AOW pen guns; 
		                                    C&R sg, sr only) 
		CO    Y   Y   Y   Y   Y    Y     Y (requires state permit for
		                                    expdd) 
		CT    Y   Y   Y   Y   Y    Y     ? (no select fire mg's-full
		                                    auto's only, after 1993 assault 
		                                    weapon ban, state registration of
		                                    mg's)  
		DE    N   N   Y   N   Y    Y     N (no smooth bore pistol AOW's) 
		FL    Y   Y   Y   Y   Y    Y     Y  
		GA    Y   Y   Y   Y   Y    Y     Y (no incendiary expdd's) 
		HI    N   N   N   N   N    N     N (A clean sweep!, the only
		                                    state like this)  
		IA    N   Y   Y   Y   Y    Y     Y (only si, sr, sg, lbdd and
		                                    expdd designated  as collector's 
		                                    items by the Comm'r of Public
		                                    Safety, basically the C&R list)
		ID    Y   Y   Y   Y   Y    Y     Y 
		IL    N   N   N   N   Y    ?     N   
		IN    Y   Y   Y   N   Y    Y     N  
		KS    N   N   Y   N   Y    Y     ?
		KY    Y   Y   Y   Y   Y    Y     ?
		LA    Y   Y   Y   Y   Y    Y     Y (mg's require a permit to
		                                    purchase - war relics only; mg's, 
		                                    sr, si, sg and some expdd's
		                                    require a permit to purchase)   
		MA    Y   N   Y   Y   Y    Y     N (license for mg's required)  
		MD    Y   Y   Y   Y   Y    Y     N (mg's must be registered)  
		ME    Y   Y   Y   Y   Y    Y     Y 
		MI    Y   Y   Y   Y   Y    Y     Y (apparently approved form 4
		                                    suffices for "license" for mg, si 
		                                    or some expdd (bomb) despite AG
		                                    opinion reprinted in ATF Green Book; 
		                                    no incendiary expdd; C&R sr, sg only) 
		MN    Y   N   Y   Y   Y    Y     ?  (C&R mg, sg only, registration required) 
		MO    Y   N   Y   Y   Y    N     N  (C&R mg, sr, sg only to non FFL holders, 
		                                     C&R FFL holders any mg, sr, sg)  
		MS    Y   N   Y   Y   Y    Y     Y 
		MT    Y   N   Y   Y   Y    N     N  (pistol cal. mg's over .30 must be 
		                                     registered with state) 
		NE    Y   Y   Y   Y   Y    Y     N 
		NC    Y   Y   Y   Y   Y    Y     Y  (sheriff's permit required
		                                     for mg's; must be FFL holder (including 
		                                     C&R) or must be for "scientific or 
		                                     experimental purposes" for a mg, si, sr, 
		                                     sg lbdd and expdd)   
		ND    Y   Y   Y   Y   Y    Y     Y  (fed. "licensees" required to register 
		                                     mg's, si, expdd with state when possessed 
		                                     for "protection or sale")
		NH    Y   Y   Y   Y   Y    Y     Y 
		NJ    Y   N   Y   N   Y    N     N  (mg requires discretionary and rarely 
		                                     issued permit from state court)
		NM    Y   Y   Y   Y   Y    Y     Y  
		NV    Y   Y   N   N   Y    Y     Y 
		NY    N   N   N   N   ?    Y     N (some pen guns may be allowed)
		OH    Y   Y   Y   Y   Y    Y     Y 
		OK    Y   Y   Y   Y   Y    Y     Y               
		OR    Y   Y   Y   Y   Y    Y     Y (no incendiary expdd's)
		PA    Y   Y   Y   Y   Y    Y     N  
		RI    N   N   N   N   Y    Y     ?
		SC    N   Y   N   N   Y    Y     ? 
		SD    Y   Y   Y   Y   Y    Y     Y 
		TN    Y   Y   Y   Y   Y    Y     ?                         
		TX    Y   Y   Y   Y   Y    Y     Y 
		UT    Y   Y   Y   Y   Y    Y     Y  
		VA    Y   Y   Y   Y   Y    Y     Y (state registration of all
		mg's) 
		VT    Y   N   Y   Y   Y    Y     Y 
		WA    N   Y   N   N   Y    Y     N (silencer may not be used on a gun) 
		WI    Y   Y   Y   Y   Y    Y     Y (permit required for expdd, no incendiary 
		                                    expdd's; no pistol cal mg's w/o permit)
		WV    Y   Y   Y   Y   Y    Y     ? 
		WY    Y   Y   Y   Y   Y    Y     ?  
		  ------------------------------------------------------------
		

A Note about NFA Weapons and California
As a general rule the definitions of NFA weapons, as regulated in California, track exactly the federal definitions, and categories.

Cal. Penal Code Sec. 12020(a) prohibits the possession of, among other things, AOW's (Any other Weapons) and short shotguns and short rifles. Subsection (b) lists exemptions to the application of (a).

Subsection (b)(7) of section 12020 exempts any "firearm or ammunition" lawfully possessed under federal law and on the C&R list. Subsection (b)(8), exempts ALL AOW's except pen guns. Subsection b(2) is the exemption for the movie permit for short shotguns and short rifles with the procedure for its issuance found at section 12095.

Californians can legally possess any AOW, except a pen gun, as long as it is possessed in compliance with federal law. Likewise they can possess any C&R listed short rifle or short shotgun.

Short shotguns and short rifles are defined at (c)(1) and (c)(2) respectively; the definitions are essentially the same as federal law. HOWEVER, unlike the feds, California courts have ruled that the length of a rifle with a folding stock is measured with the stock folded, not extended, as the feds do. So a gun that is not a short rifle under federal law may be one under California law. See People v. Rooney, 17 Cal.App.4th 1207 (1 Dist. 1993).

Any firearm whose possession is otherwise prohibited by subsection (a) is ok, under b(7), if the gun is a C&R one and lawfully possessed under federal law. This would not provide an exemption to the requirement for a state permit for a machine gun, as 12020(a) does