Tomorrow Sarah Gervase, with the NRA is presenting a summary of the major provisions of the NFA just before my presentation of the use of Gun Trusts as we provide many lawyers with information on Gun Trusts I wanted to highlight some of the major points of her talk with some exerts from her paper.
This presentation will focus mostly on individual buyers and transferors, as many of those in attendance at the Firearms Law Seminar have more personal interest in and interaction with individuals who collect or own these arms for their own enjoyment. There will be some basic information for dealers, manufacturers, and importers, however, and a future Seminar presentation can focus on those areas if there is sufficient interest. In the meantime, readers of these materials who need more in-depth information for dealers, manufacturers, and importers are encouraged to review ATF’s website at http://www.atf.gov for the latest relevant requirements.
A quick note about holding a client’s property. Be very careful about holding any firearms owned by a client or about accepting firearms as payment for services. Here’s a horror story. An attorney represented a man accused of bank robbery. The attorney took possession of the allegedly stolen money and a sawed-off shotgun. That attorney was suspended from the practice of law for 18 months for possessing a short-barreled shotgun used in a bank robbery. It was unprofessional conduct to take the fruits and instrumentalities of the crime. In re Richard R. Ryder, 381 F.2d 713 (4th Cir. 1967).
History of the National Firearms Act (the NFA). Congress passed the National Firearms Act (the NFA) in 1934 in response to Prohibition Era violence Congress saw as frequently involving machine guns, short-barreled shotguns and rifles, and firearms silencers and mufflers. Think gangster crimes and the use of Tommy Guns at the St. Valentine’s Day Massacre in Chicago. Because of concerns that the introduced regulation of these arms would conflict with the Second Amendment and the Commerce Clause as it was then interpreted, Congress chose to base its authority on its taxing power. The Harrison Act that regulated narcotics had been upheld as a valid exercise of Congress’ taxing power, so Congress felt it was the least risky course to use the taxing power as the basis for the NFA.
The $200 tax the Act levied upon the making and transfer of most NFA arms was far more than most of these NFA items cost at the time. The tax was therefore intended to severely limit transactions of NFA arms and their possession. (This $200 tax has never been increased, even though $200 is not nearly as prohibitive now as it was in the 1930’s.)
Because the NFA is a tax statute, the NFA placed the Secretary of the Treasury in charge of its implementation. The ATF as a separate bureau was not established until 1972. Congress transferred ATF to the Department of Justice as part of the Homeland Security Act after 9/11, so it is the Attorney General who now oversees ATF and is responsible for NFA matters. Know that the original language of the NFA mentioning “the Secretary” has not been changed, but that it is the Attorney General who now has the powers and responsibilities previously assigned to the Secretary of the Treasury.
Rule of Lenity. Before examining the statute and definitions in detail, it is important to recognize that the rule of lenity applies to all definitions in the NFA if there is any ambiguity in the wording. And there is certainly much ambiguity in the NFA definitions and regulations. What the rule of lenity in these cases means is that, if there is any ambiguity in how to interpret a statute or regulation, that ambiguity must be interpreted in the defendant’s favor. If a defendant is subject to criminal penalties under an ambiguous statute, the tie essentially goes to the defendant and the court will construe the statute against the government.
This rule of lenity has been applied in two NFA cases – U.S. v. Harris, 959 F.2d 246 (D.C. Cir. 1992) and U.S. v. Thompson/Center Arms Co., 504 U.S. 505 (1992). What is especially noteworthy in the Thompson/Center Arms case is that the U.S. Supreme Court would not defer to ATF’s interpretation of a statute that the arms in question were firearms covered by the NFA. It is a therefore a good case to keep in mind not only for the future, but when reading and citing pre-Thompson/Center Arms cases in which the lower courts did give deference to ATF interpretations rather than applying the rule of lenity.
Remember the language in the general definition of a firearm, 26 U.S.C. § 5845(a) that reads: “The term ‘firearm’ shall not include an antique firearm or any device (other than a machine gun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector’s item and is not likely to be used as a weapon.” This is an invitation to arbitrariness and therefore perhaps a legal defense. In a 1979 importation case, the court wrote that it was “a classic example of agency ‘nit picking,’ and an arbitrary and capricious action” for the ATF not to remove an old pistol disguised as a pocket knife from AOW status. Davis v. Erdmann, 607 F.2d 917 (10th Cir. 1979).
There are 3 ways that NFA firearms may be removed from the NFA provisions.
1. Some NFA items may be removed as collector’s items as defined in 26 C.F.R. § 5845. Under the definition, these are items which, “although designed as a weapon,” ATF finds “by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector’s item and is not likely to be used as a weapon.” ATF alone makes this determination, and a written application is required. The application procedure here is the same as that used for requesting a destructive device determination. 27 C.F.R. §§ 479.24, 479.25.
This procedure does not work for machineguns, however, as the Attorney General does not have the authority to remove machineguns or destructive devices from the NFA. ATF will not approve those applications.
It is important to note that while a firearm may be removed from and no longer subject to the NFA regulations, the item will still be considered a firearm under the GCA and regulated by that statute. Only if an item also meets the definition of an “antique firearm” will the item no longer be defined as a firearm under federal law.
2. With the exception of firearms and silencers, some firearms are subject to the NFA because of their unique features. Short-barreled shotguns and rifles, for example, are considered NFA items because of their barrel and overall lengths. Therefore, if those unique features are modified or eliminated, the resulting firearm is no longer considered an NFA firearm.
Using the short-barreled shotguns and rifles as examples, removing the barrel entirely removes the items from under the NFA, as there is no barrel length at all anymore. So does permanently installing an extension to the barrel so that the modified barrel is sufficiently long (18″+ for shotguns, 16″+ for rifles) and the overall length as modified exceeds 26″.
The ATF’s publications described in these materials “Additional Sources” section give specific procedures to be used to remove certain types of NFA arms from under the statute. If ATF’s online publications do not provide the information on a particular NFA item, you can always contact ATF’s NFA Branch directly for assistance.
3. Remember that the definition of a machine gun includes the receiver, and the definition of a silencer includes each of the silencer’s components. The receiver of a machine gun and all the components of a silencer must therefore be destroyed in order for these firearms to be removed from the NFA.
ATF has published detailed rulings on how machine-gun receivers should be properly destroyed. These rulings are available online at the ATF’s website. Anyone attempting this type of destruction should study and follow these instructions line-by-line to make sure he does it right. Here too, the Firearms Technology Branch of the ATF is available to answer any questions.