You may only own a machine gun that was manufactured and registered with the BATF before May 19, 1986. Weapons manufactured after that date are restricted for Military and Law Enforcement use only. Economics 101, the law of supply and demand should start coming to mind by now. This is why these weapons are somewhat “pricey”, when compared to current production weapons. “Simply”, the reserves not being available, controlled commodities always make for an excellent investment. The price is only going one place, Up!

GENERAL INFO ON NFA WEAPONS

                      Key to Abbreviations

AOW - any other weapon
ATF - Bureau of Alcohol, Tobacco and Firearms
ATT - Alcohol and Tobacco Tax Division of the IRS, the pre-68
administrators of the NFA
C&R - curio and relic
CFR - Code of Federal Regulations
DD  - destructive device
FET - federal excise tax
FFL - federal firearms license
GCA - Gun Control Act
NFA - National Firearms Act
SOT - special (occupational) taxpayer
U.S.C. - United States Code
DEWAT - De-activated war trophy

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, silencer, and firearm frames or receivers.
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 (codified at 26 U.S.C. sec. 5801 et seq.), hence NFA.
Title 1 is generally called the Gun Control Act, (18 U.S.C. sec.
921 et seq.).  NFA weapons are also 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
taxation of the guns, and the registration of them in the National
Firearms Registration and Transfer Record.

    NFA weapons are: machine guns, sound suppressors (a.k.a.
silencers), short barreled shotguns, short barreled rifles,
destructive devices and "any other weapons".   Exactly what these
weapons are is defined in the law, as well as in court cases
interpreting the law.   Withut going into to much detail, these are
what the categories encompass:

    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 or parts exclusively designed or intended for
such a device (see discussion below). 

    A short barreled shotgun is any shotgun (which is defined as a
shoulder fired, smooth bore firearm) 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 (which is defined as a shoulder
fired, rifled bore firearm) 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) can be two basic categories of things.
It can be an explosive, incendiary or poison gas weapon, like a
bomb or grenade.  It can also be a firearm with a bore over 1/2",
with exceptions for sporting shotguns, among other things (see
discussion below).  I call the second category large bore
destructive devices.  As a general rule only this second category
is commercially available.

    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.  In addition, as
a general rule, a parts kit, i.e. all of the parts to assemble an
NFA firearm, whether a parts kit is specifically included in the
statute or not, is usually considered to be the same as the
assembled firearm.

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 within 24 hours
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 U.S.C. 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, who are not
qualified to deal in nFA weapons, that is are not SOT taxpayers
(see below) 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 below 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.  Initial 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 ATF 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 should be kept in a safe place, I
suggest a safe deposit box.  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.  Once it
is used you cannot get another.  ATF can supply a copy of the form
should you lose one, but is not unheard of for ATF to have no
record in their computer of a weapon registered to you.  Having the
paperwork can avoid a lot of hassles.  Every effort should be made
to not lose it.

    Additionally, if the gun in question is a machine gun, not having
the paperwork can lead to being charged with a violation of 18
U.S.C. sec. 922(o), the ban on possessign machine guns made after
May 19, 1986.  All four of the federal circuit courts of appeals
(U.S. v. Just, 74 F.3d 902 (CA8 1996), U.S. v. Gravenmeir, 121 F.3d
526 (CA9 1997), U.S. v. Gonzales, 121 F.3d 928 (CA5 1997) and U.S.
v. Franklyn, 157 F.3d 90 (CA2 1998)) that have addressed the issue
have ruled 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 an affirmative defense, although 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), at
least according to all the appeals courts that have considered the
question.  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 (NFRTR or Registry) is keeping track of who owes
the tax.  Taxpayer privacy laws apply to a transfer form, and ATF
may not discuss a pending transfer with anyone but the taxpayer.
They sometimes claim that the taxpayer on a tax paid transfer 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 memo re Auto
Ordnance Corp. FOIA request on my web page).  The transferee should
be entitled to the information about the status of the application
on the same basis as the transferor.  That is not ATF's usual
practice, however with pending transfers.

    These taxpayer privacy restrictions do not apply to disclosure
of the form by other persons whio might have access to it, a local
LE chief who provided the certification, for example, and retained
a copy of the form.  Nor do they apply to a court ordered
disclosure by anyone who might have a copy (buyer or seller for
example), by subpoena or similar measure.

    The NFA law 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 U.S.C. sec. 5848).  Other tax laws prohibit the
release of transfer information by the Feds, as a tax return,
except for certain narrow law enforcement type circumstances.  See
26 U.S.C. sec. 6103.   The Feds may not legally disclose whether
someone has a registered NFA firearm, or not, to any state or local
law enforcement agency or personnel.

    However, as most NFA weapons are also regulated by the GCA,
purchases from a dealer in NFA weapons requires 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.  See 18 U.S.C.
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
U.S. government is the transferee, (26 U.S.C. sec. 5852(a)), or a
state governmental entity (26 U.S.C. sec. 5853(a)), ATF has made up
an exemption from the transfer tax where any U.S. or state
governmental entity is the transferor, see ATF Chief Counsel
Opinion numbers 20023 and 20400.  Opinion 20023 is on my web page -
ATF refuses to release number 20400, claiming it is privileged
attorney-client work product.  Abuses of this tax exemption, as in
transferring guns through governmental entities so as to avoid
transfer taxes, have been successfully prosecuted.  See U.S. v.
Fleming, 19 F.3d 1325 (CA10 1994).

    Federal government agencies, the military, and National Guard are
exempt from the registration or tax requirements, and generally
speaking NFA Branch removes weapons from transferrable status in
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, except that recently ATF has said they would not
require the LE certification.  Unless the heir is also a class 3
SOT he may not inherit pre-86 NFA firearms or post-86 machine guns
(and would also need the police demo letter for the post-86 machine
guns, see below).  A weapon to an heir may also be transferred
interstate directly to the heir, 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's) under the NFA are exempt
from some of the making or transfer taxes.  All SOT's may transfer
weapons between themselves tax free.  However a transfer between an
unlicensed 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 (effective 9/13/94) 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 of
dealing, making, or importing regular firearms.

The classes of SOT holders:
  Class
    1 - importer of NFA firearms
    2 - manufacturer of NFA firearms
    3 - 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 after its making by filing Form 2 with ATF.  He could also
import foreign made NFA weapons, for R&D use.  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 transfer or making
taxes on all or some of the guns.  Conceivably you could also be
prosecuted for tax evasion.

Additional regulations 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 U.S.C. 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 U.S. after the Gun Control Act took effect (end
of 1968) cannot be transferred to an individual.  See 26 U.S.C.
sec. 5844.  They  can be transferred to SOT's, although without any
written 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 to 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,
but not required, that you keep a photocopy of the registration
paperwork, whatever it is, with the gun.  Some states do require
this, state law bans all or some NFA weapons, and exempts from the
ban only 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 are you required to 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 permanently changing
residences. 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 destination state
allows the weapon in question. A licensed dealer 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
dealer 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.  A C&R FFL holder
can move C&R NFA guns interstate without a 5320.20.  See 18 U.S.C.
sec. 922(a)(4) for the statute 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 rarely used in crimes,
compared to regular handguns, rifles and shotguns.  A significant
source of NFA weapons used in crime are stolen 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 P.L. 103-322 (Crime Bill) (effective 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 P.L. 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.

Repairs to NFA weapons

    While it is illegal for anyone to have possession of an NFA
firearm that is not registered to them, ATF haas carved out an
exception for getting the guns repaired.  In two writings of
general circulation and availability, ATF has stated permission
from them is not required in this situation.  In ATF's "Federal
Firearms Regulations Reference Guide," ATF P 5300.4 (01-00), on
page 141, ATF writes:

    "(I5) May a licensed gunsmith receive an NFA firearm for purposes
of repair?"

    "Yes, for the sole purpose of repair and subsequent return to its
owner.  It is suggested that the owner receive permission from ATF
for the transfer by completing and mailing ATF Form 5 to the NFA
Branch and receive approval prior to the delivery.  The    
gunsmith should do the same prior to returning the firearm."

    "Only the face of the form need be completed in each instance.
ATF Forms 5 may be obtained from the Bureau of ATF, NFA Branch,
Washington, DC 20226, (202) 927-8330."

(Emphasis added).  This discussion was present in past editions of
this publication as well.

   

"Repair of NFA Firearms"

"February 18, 2000"

"The National Firearms Act (NFA) Branch has received numerous
questions concerning the repair of NFA firearms."

"The Bureau of Alcohol, Tobacco and Firearms (ATF) does not
consider the temporary conveyance of an NFA firearm to a gunsmith
for repair to be a "transfer" under the terms of the NFA.  Thus, an
ATF Form 5 application is not required."

"PLEASE BE AWARE THAT OTHER DISPOSITIONS, SUCH AS DEMONSTRATION OR
SALE, ARE  TRANSFERS AS DEFINED IN THE NFA AND MUST BE COVERED BY
AN APPROVED APPLICATION TO TRANSFER AND REGISTER.  TRANSFERS
WITHOUT APPROVAL ARE VIOLATIONS OF FEDERAL LAW.  ANY FIREARM
INVOLVED IS SUBJECT TO SEIZURE AND FORFEITURE AND THE PARTIES TO
THE TRANSFER ARE SUBJECT TO CRIMINAL PENALTIES OF UP TO 10 YEARS
IMPRISONMENT."

"In order to avoid any appearance that a transfer has taken place,
ATF strongly recommends that a Form 5 application be submitted for
approval prior to conveying the firearm for repair.  ATF believes
this will provide protection to the parties involved as it will
document the repair of the firearm and help ensure that a
"transfer" did not take place.  In addition, an approved Form 5
will assist Federal firearms licensees in establishing that their
possession of the firearm is lawful."

"Accordingly, Item I5 in the 'Questions and Answers' section of ATF
Publication 5300.4, Federal Firearms Regulations Reference Guide
2000, suggests that the owner obtain permission for the 'transfer'
of the NFA firearm by submitting a Form 5 application and that the
gunsmith do the same for the return of the firearm."

"Federal firearms licensees must record the acquisition and
disposition of the firearm as required by Part 179, Title 27, Code
of Federal Regulations."

    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.  When submitting an optional 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 what is to be done
with teh transfer in general terms, e.g. "The purpose of this
transfer is to have [the weapon] refinished."  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 few weeks, or a minimum wait of a month or two, to transfer
it to the 'smith and back.  There is no transfer tax due.

Penalties for NFA violations

    A conviction for a violation of the NFA will result in a felony
conviction, punishable by up to ten years in prison, and/or a
$10,000 fine.  See 26 U.S.C. sec. 5871.  The U.S. Sentencing
Guidelines ordinarily require prison time, even for a first offense
with no prior criminal record, 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.  See 26 U.S.C. 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 U.S.C.
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).  While
the GCA was amended in 1986 to legislatively repeal Eighty-Nine
Firearms (18 U.S.C. sec. 923(d)(1)), ATF has argued, and courts
have agreed, that the protections in the GCA as to forfeiture do
not apply to forfeitures of NFA weapons.  See, for example, U.S. v.
One DLO Model A/C .30-06 Machine Gun, etc., 904 F.Supp. 622, n. 10
(N.D. Ohio 1995). 

    A violation of 18 U.S.C. sec. 922(o) of the GCA can also bring
up to a ten year prison sentence, and or a $10,000 fine.  Again,
prison time is likely, even on a first offense.  Using a machine
gun or a silencer in a crime of violence or drug crime can result
in a sentencing enhancement of thirty years, even if there is no
NFA prosecution.  See 18 U.S.C. sec. 924.

                 Additional info sources

    A good source of information is the ATF publication, "Federal
Firearms Regulations Reference Guide" ATF P 5300.4 (01-00).   It
has a green cover, and contains the text of the GCA, NFA, and the
regulations promulgated under those laws, as well as other useful
information.  As required by the GCA (18 U.S.C. section
921(a)(19)), ATF also publishes a compilation of state laws, "State
Laws and Published Ordinances-Firearms", ATF  P 5300.5.  The
current edition is #22 - 2000.  Both are free for the asking from
ATF.  To get forms, or the books, you can write to ATF Distribution
Center, P.O. Box 5950, Springfield, VA 22150-5950. Or phone them at
(703) 455-7801.  Your local ATF office may be able to supply them
also.

    There is also a magazine covering NFA weapons, which also has
information on the legalities, Small Arms Review.  See their web
page, http://www.smallarmsreview.com, or drop them a note at

sareview@aol.com This e-mail address is being protected from spam bots, you need JavaScript enabled to view it
for more info.  The author of this faq writes a
column for the magazine, Legal Side, covering firearm laws and
asnwering reader questions.

    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 and 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.

           GETTING THE LAW ENFORCEMENT CERTIFICATION

    As noted above one administratively imposed requirement for an
NFA transfer to an individual is a certification from a chief law
enforcement officer with jurisdiction over where you reside.  This
(and the cost of the gun) is what usually keep interested, and
otherwise qualified, persons from obtaining one.  This process is
what the law and ATF regulations contemplate as the way to get a
signoff, if you need one.

    Step 1:  You ask the following persons if they would sign; the
local chief of police (if any), the local sheriff, the local
district (prosecuting) attorney, the chief of the state police, and
the state Attorney General.  The CLEO can delegate the signing
duty, for his convenience, if he wishes.  Ask that they refuse in
writing, if that is what they will do.  You may be surprised, one
might sign.  That list of persons comes from 27 CFR sec. 179.85,
which is the regulation that created the law enforcement
certification requirement for Form 4's.  27 CFR sec. 179.63 is the
companion regulation for Form 1's.  The rquirement is NOT in any
statute passed by Congress.  Although not listed, and ATF will NOT
designate federal officials as also acceptable (see below) other
persons whose certification has been acceptable in the past
include; local U.S. Attorney's, local federal judges, local U.S.
Marshals,  and local supervising F.B.I. agents.  Other local
federal law enforcement agents might also work.

    It is helpful, in general, to quote the certification text for
the CLEO, or provide a copy of the form.  That way they know what
you are asking them to certify.  For a Form 4 it reads, "I certify
that I am the chief law enforcement officer of the organization
named below having jurisdiction in the area of residence of (name
of transferee).  I have no information that the transferee will use
the firearm or device described on this application for other than
lawful purposes.  I have no information indicating that the receipt
and/or possession of the firearm described in item 4 of this form
would place the transferee in violation of State or local law."

    Step 2:  Copy the refusal letters, and send the copies to the NFA
Branch of ATF.  Some CLEO's may refuse to even provide a response
in writing.  Just indicating that the CLEO refused to sign, and
also refused to provide a written response, should be sufficient.
Ask ATF to designate other persons whose signature would be
acceptable, as the ones listed in the regulation would not sign.
They are required to do this by the same regulation, it is the
'safety valve' for when none of the designated persons will sign.
ATF will almost certainly say that they will accept the
certification of a state judge who has jurisdiction over where you
live (same as the chief, D.A. and sheriff in step 1, they have to
have jurisdiction over where you live, although the regulation
doesn't say that, just the Form 4) and who is a judge of a court of
general jurisdiction, that is a trial court that can (by law) hear
any civil or criminal case.  No limit as to dollar amount in civil
cases, or type of crime in criminal cases.  No small claims court
or traffic court type judges, in other words.  Let's assume the
judges refuse.

    Step 3: get back to ATF, Send them copies of the rejection
letters, if any, and ask that they accept a letter of police
clearance, or a police letter saying you have no criminal
record/history with them, in lieu of the certification, together
with your certification that you are OK, and that the weapon would
be legal for you to have where you live. They will either respond
OK, or with more persons to try.  If you reach the point where they
will not accept the police clearance letter, and not designate
someone who has not turned you down, you can sue, if the
certification is for a Form 1, or the transferor (seller) on a Form
4 can sue.

    There are several cases on this issue.  The first is Steele v.
NFA Branch, 755 F.2d 1410 (11th Cir. 1985), where the 11th circuit
federal appeals court said a person trying to transfer a gun to one
who was otherwise eligible to own the gun, but could not get the
certification from anyone acceptable to ATF, could sue to force the
transfer without it.  In the Steele case (the plainitff was a
potntial transferor in a Form 4 transfer) had not asked everyone
acceptable to ATF, as well as not alleged, as part of his case,
that the potential transferee was otherwise eligible by law to own
the weapon, and the case was disposed of on those grounds.  Note
that the version of the regulation creating the certification
requirement, reproduced in the footnotes of the Steele case, has a
different list of acceptable persons.  After some were named as
defendants in the Steele case (including the then U.S. Attorney for
the Miami, FL., area, Janet Reno, later anti-gun Attorney General
during the reign of Pres. Clinton), all the federal law enforcement
officials listed (U.S. Marshals and U.S. Attorney's) were removed
from the regulation, supposedly at their request.  See Federal
Register, October 15, 1985, 50 Fed.Reg. 41680.  Correspondence from
ATF indicates they will not designate any federal officials as
other acceptable persons either. 

    The Steele decision was followed in the case Westfall v. Miller,
77 F.3d 868 (5th Cir. 1996), in which a transferee, not transferor,
sued over non-approval of a Form 4 without the certification.
Again Westfall did not ask everyone listed in the regulation.
Again his case was thrown out for lack of standing.  The court said
they could not tell if the reason he couldn't get the gun was an
illegal requirement, the signoff, or his own failure to try and get
a signoff.

    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 lawsuit 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 one case addressing this issue that I am
aware of, 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 by the plaintiff
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.  The case against the chief of police
was later dismissed by the trial court.  Although this case is only
directly binding on federal courts in the area covered by the 6th
circuit, and need not bind any 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 Searcy 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 his Firearms Law Deskbook (published by Clark Boardman
Callaghan) that this case is the only instance of a registered
machine gun being criminally misused by its registered owner he is
aware of.

Other Avenues to NFA Ownership

    There are solutions to the law enforcement certification problem.
They all require persistence, but less work than being a legitimate
NFA dealer, in my opinion.  Becoming a licensed dealer is one
solution though.  Another solution is to be incorporated.  If you
are already the owner of a corporation, as part of your business
(doctor, lawyer or architect for example) your corporation can buy
NFA weapons, and the photo, police signoff and fingerprints are not
needed.  Just a Form 4.  The corporation might be buying weapons
for an investment, or for security, or for another good reason.
You could incorporate yourself just to get NFA weapons also,
although you should talk to a lawyer or another knowledgeable
person about the downsides of being incorporated before just doing
it, as well as any income or other tax consequences in your
location.  As the weapons are registered to the company, and not
the owner of the company, they will have to be transferred out, tax
paid (unless the transfer is otherwise exempt from the tax, ie from
a government entity, or for an unservicable weapon), if the
corporation is ever dissolved.  As corporate assets, creditors
might get them in the event of bankruptcy of the corporation, or a
judgment against the corporation. In my opinion the best thing is
to have the weapons owned and registered to the person who actually
owns them, and not an intermediary.  I also am aware that in some
areas of the country the incorporation route may be the only way to
own NFA weapons, as a practical matter.  Also be aware that
corporations have no 4th amendment right against self-
incrimination, and the restrictions the NFA law places on the use
of information provided to ATF under the Act (26 U.S.C. sec. 5844)
only apply to information provided by natural persons, not
corporations.  You are giving up some of the privacy provided by
law to flesh and blood people when you acquire your guns through a
corporation.

       Pretending you live in a jurisdiction where the CLEO will
sign, when you do not, may be tempting, but cannot be recommended.
ATF has prosecuted for this, claiming that putting a bogus address
on the form is submitting false information to the feds, in
violation of 26 U.S.C. sec. 5861(l).  See U.S. v. Muntean, 870
F.Supp 261 (N.D.Ind. 1994), for a case of such a prosecution.
However, it is possible to have more than one place you live, and
it is permissible to obtain NFA weapons at an address, when you are
actually living there.  For example, if you have a summer home, you
may get NFA weapons when you are living there, and have the CLEO
for that place do the signoff.  During the rest of the year, when
you live elsewhere, you may obtain the weapons at the second home.

            NFA WEAPONS AND THE 4TH AMENDMENT

    As to surrendering your 4th amendment (search and seizure)
rights, this is definitely true when one gets a Federal Firearms
License.  The law allows the ATF to inspect your records and
inventory once every 12 months without any cause, and at any point
during the course of a bona fide criminal investigation (18 U.S.C.
sec. 923(g)).  They may inspect without warning during business
hours. The only modification of the above pertains to the C&R FFL
(type 03) where ATF must schedule the inspection, (C&R FFL holders
do not have business hours) and they must have the inspection at
their office nearest the C&R FFL holders premises, if the holder so
requests.  ATF may look around the licensed premises for other
weapons not on your records.  This means they take the position
that if your licensed premises are your home they may search it, as
part of the annual compliance inspection.  The constitutionality of
the warrantless "administrative search" of licensees provided for
in the Gun Control Act has been upheld by the US Supreme Court, see
U.S. v. Biswell, 406 U.S. 311 (1972).  Biswell was partially
overturned by Congress by 1986 changes to the requirements for a
warrant under the GCA, but the administrative search provisions
remain.

    In addition, if one is also a SOT, ATF claims to have the right
to enter onto your business premises, during business hours, to
verify compliance with the NFA.  Their regulation to that effect is
found at 27 CFR sec. 179.22.  The regulation is apparently based
upon 26 U.S.C. sec. 7606:

    7606. Entry of premises for examination of taxable objects.

    (a) Entry during day.

          The Secretary may enter, in the daytime, any building
    or place where any articles or objects subject to tax are
    made, produced, or kept, so far as it may be necessary for
    the purpose of examining said articles or objects.

    (b) Entry at night.

        When such premises are open at night, the Secretary may
    enter them while so open, in the performance of his official
    duties.

    (c) Penalties

        For penalty for refusal to permit entry or examination, see
    section 7342.

26 U.S.C. sec. 7342 provides for the penalty for a refusal to
permit entry under section 7606:

    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, 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 U.S.C. sec. 5841(e).  They do not have
any right to compel you to produce the weapon.  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, or without
your consent.

        AMNESTIES FOR UNREGISTERED NFA WEAPONS

    As part of the new and revised 1968 National Firearms Act,
there was one amnesty where folks could register any NFA weapons.
Registration was done on ATF Form 4467.  It went from 11/02/68 to
12/01/68, although the paperwork backlog went on for a while after.
ATF also permitted servicemen and other persons who could show they
were overseas during the amnesty period, and that the weapon they
sought to register was in the U.S. during the amnesty period, to
register those weapons well after the amnesty period.  The number
of firearms ATF reports as having been registered during the 1968
amnesty goes up every year such statistics have been reported,
since 1989 or so; however in 1975 ATF reported over 60,000 firearms
registered during the amnesty, far more than they have reported
since they began releasing annual statitstics on NFA registrations.
According to 1995 numbers, 57,216 weapons were registered on Form
4467 ("Registration of Certain Firearms during November of 1968"),
which was the amnesty registration form.  This would have included
weapons newly subject to registration, when they had not been
before, like DEWAT's and destructive devices, as well as
unregistered firearms that should had always been subject to the
NFA, and been registered before, and were not. 

    There was also a registration period after the enacting of the
first NFA, from July 26, 1934 up to September 24, 1934.  Anyone in
possession  of an NFA weapon as of the July 26 date was supposed to
register it, even if they no longer had it, on Form 1 (Firearms) in
duplicate, with the local IRS office.  No tax was due.  This was
not really an amnesty though, as the weapons were legal to have
before the law was passed, at least under federal law.  Before the
changes to the NFA in 1968, a Form 1 was for a flat out
registration of an existing gun, no tax.  A Form 1A was for a tax
paid making, in the way we understand a Form 1 now.  Under various
rules unregistered weapons were permitted to be registered, until
1971 or so.

    Some states had prohibited or regulated some NFA weapons before
1934. In fact the Uniform Machinegun Act, which provided for
registration of machine guns, adopted in a few states (Conn., Va.,
Md., Ark., Ohio and South Dakota) was developed with the support of
the National Rifle Association, partly in an attempt to forestall
the sort of regulation the feds ultimately adopted in 1934.  As
always, compromise brings no relief - history has repeated that
lesson over and over in the gun control context.

    Before the NFA was changed in 1968, as part of the Gun Control
Act of 1968, one could register unregistered existing weapons,
however it meant you were admitting to possessing an unregistered
weapon.  In fact the law required it, which was a reason the U.S.
Supreme Court used in gutting the mandatory registration scheme of
the pre-68 NFA in Haynes v. U.S., 390 U.S. 85 (1968). (It violated
the 5th amendment right against compelling self-incrimination.)
However if there was no criminal intent to the possession (which
tended to be demonstrated by attempting to register the weapon)
then the Alcohol and Tobacco Tax Division of the Treasury Dept.
would accept the application to transfer the weapon, or to register
it.  ATT generally sent an investigator to check out what was going
on, and if deemed appropriate, to help the applicant fill out the
Form 1.  The Alcohol, Tobacco and Firearms Division of the IRS
(created out  of the '68 GCA, it became the Bureau of Alcohol,
Tobacco and Firearms on July 1, 1972) continued this practice until
1971, with  the transferor instead of the transferee admitting to
possessing an unregistered weapon, when applying to transfer it.

     The U.S. Supreme Court, in the case U.S. v. Freed, 401 U.S. 601
(1971), decided the amended NFA made existing unregistered weapons
unregisterable, even voluntarily.  The provisions mandating
registration of existing (illegally possessed) weapons were removed
from the NFA in 1968, among other changes.  The Secretary of the
Treasury is authorized to conduct additional amnesties (Sec. 207(e)
of P.L. 90-618, the 1968 Gun Control Act), at his discretion,
provided each is not longer than 90 days, and are announced in the
Federal Register.  There has never been one.  ATF officials have
stated they will never declare another Amnesty, because it would
supposedly ruin all prosecutions in progress at the time, as well
as increase the number of NFA guns overnight, because people will
make guns that don't exist now, to register them.

    In early 1994, ATF decided (in ATF Rulings 94-1 and 94-2) that
three models of 12 gauge shotguns, the USAS 12, Striker 12, and
Street Sweeper, were destructive devices, owing to their
non-sporting character, and having a bore over 1/2 inch, as all 12
gauge shotguns do.  ATF required owners of these guns to register
them, as NFA weapons.  This was not exactly an amnesty, as the
weapons were not NFA weapons when made.  This decision, as to the
Striker 12 in particular, was upheld in a court challenge in the
case Demko v. U.S.,  44 Fed.Cl. 83 (Ct.Cl. 1999).  By ATF Ruling
2001-1, ATF ended the amnesty for these shotguns as arbitrarily as
it began, effective 5/1/2001.  Any not registered now are
unregisterable contraband.

    In all likelihood 18 U.S.C. sec. 922(o), the ban on civilian
possession of machine guns registered after the law took effect, or
never registered, precludes an Amnesty (as provided for under
existing law) for machine guns.  You could register a machine gun
at a hypothetical amnesty, and comply with the NFA, but you would
still be in violation of sec. 922(o), because the gun would have
been registered after that law took effect.  The penalties are the
same under either law.  One could register all other categories of
NFA guns at an Amnesty.  Congress would probably need to pass a law
providing for an Amnesty, and override sec. 922(o) in that manner.

           MACHINE GUN SEARS AND CONVERSION PARTS

    The definition of "machinegun" in the NFA (26 U.S.C. sec.
5845(b)) includes a part or parts to convert a gun into a machine
gun. These parts are called registered sears, as well as
"conversion kits". 

    Note that conversion parts are not included in the definition of
"firearm" under the Gun Control Act, one of the few things that is
a firearm under the NFA, but not the GCA.  Thus the purchaser of a
conversion part from an FFL need not do a 4473 form, unlike other
NFA weapons.  Of course the host gun, if purchased from an FFL,
will require the 4473.  This reading of the law is based on opinion
letters from ATF, and the definition of "firearm" under the GCA,
which requires it be able to expel a shot.   However, at least one
judge has decided that somehow the definition of "firearm" in the
GCA "incorporates" the definition of "machine gun" under the GCA
(even though the law doesn't say that) and that a machine gun
conversion part is a "firearm" under the GCA as well as the NFA. I
think the judge is clearly wrong, even ATF reads the law better
than that, but the point is to be careful.  The case is  U.S. v.
Hunter, 843 F.Supp 235 (E.D. Mich. 1994), and see also the same
judge's second opinion in the same case, at 863 F.Supp. 462 (E.D.
Mich. 1994).  As the U.S. dropped that prosecution, and the
defendants were not convicted, there was no review of that
determination by an appeals court. 

    In every case, the conversion part(s) are installed into a
semi-automatic gun, and without converting the semi-auto gun's
receiver to machine gun specification, the new part(s) will allow
the gun to fire as a machine gun.  If the registered conversion
part breaks or wears out it cannot be replaced, only repaired, if
possible. BATF considers replacing it with a new part to be the new
manufacture of a machine gun, and a civilian could not own it, as
it would have been made after the effective date of 18 U.S.C. sec.
922(o).  This wear/breakage thing is also true of the receiver on
a gun where that is the registered part, but in general the
receiver is less subject to wear or breakage than a small part,
like a sear.  Being larger, a  receiver may also be easier to
repair.  The sear conversion will most likely not be just like the
factory machine gun version; it will be working in the semi-auto
version of the gun. A registered receiver conversion can (and
should, but isn't always) be mechanically identical to the original
full auto version of the gun, and factory spare parts may be used.
Some sear conversions require altered parts, in addition to the
registered sear.

    A conversion sear that does require alteration to the host gun's
receiver is not legally a conversion part, and is not able to be
registered as such.  Some were permitted by ATF, in particular
AK-47 "sears" that required a hole be drilled in the gun's
receiver, like a regular receiver conversion of the semi-auto AK.
Such "sears" in the hands of innocent buyers were left on the
Registry, with the requirement that they were not to be removed
from the host gun.  However any in the possession of the persons
who made and registered them were disallowed, and removed from the
Registry. See Vollmer v. Higgins, 23 F.3d 448 (D.C.Cir. 1994) for
mention of the AK sears.   Also see FFL Newsletter, Summer Issue
1988, Bureau of Alcohol, Tobacco and Firearms, page 2, Washington,
D.C.

    Some examples of conversion parts; a SWD Auto Connector (for AR
rifles), an AR-15 drop-in auto sear, an HK sear, as made by Fleming
Firearms, J.A. Ciener, and S&H Arms, among others, a AUG sear as
made by F.J. Vollmer and Qualified Manufacturing, an FN-FNC sear,
as made by S&H, an M-2 conversion kit for the M-1 carbine,
registered by many manufacturers, a slotted UZI machine gun bolt,
made by Group Industries and many others, or a Ruger 10/22 trigger
pack, as made by John Norell.  There are also sears to convert
Glock and Beretta 92 pistols into machine guns, but I believe all
of them are post-86 manufacture, and thus unavailable to civilians.

    As the sears do turn the host gun into a machine gun, the host
gun is no longer regulated as a semi-auto, and is not subject to 18
U.S.C. sec. 922(v), (assault weapon law) or sec. 922(r) (ban on
domestic assembly from imported parts of an unsporting semi-auto
rifle or shotgun), for example.   Thus you may put an HK sear in a
post 1989 import ban SAR-8 rifle, for instance, and then put  a
regular pistol grip stock set on that otherwise thumbhole gun, as
well as a regular slotted flash hider.   The host gun need not even
have been on the planet when the sear was made.  As long as the
sear is in there you may also have the barrel cut down to below 16
inches; a machine gun is not also a short barreled rifle.

    HOWEVER, if the sear is placed into a second gun, the first gun
is no longer a machine gun, and must comply with the laws
regulating it as a semi-auto.  In my example, the barrel must grow
back, and the thumbhole stock needs to return.  If the sear in
question is a AR-15 drop-in auto sear, the gun needs to have the
M-16 internal parts needed for the sear removed as well, lest it be
induced to fire more than one shot at a time, as was done in the
U.S. v. Staples case.

    NFA Branch desires that folks who install sears into guns where
the sear is not very accessible, HK guns in particular, tell them
the make, model and serial number of the gun into which the sear is
installed, and put this information on the Form 4.  This makes it
easier on anyone inspecting the gun, as they do not have to open
the gun up to see the sear, if they know that gun is the one with
the sear in it.  This is called "marrying" the sear to the gun.  It
is especially useful when the host semi-auto has been modified so
as to make it potentially illegal without the sear, like putting a
shoulder stock on an HK SP-89 pistol, or cutting the barrel of an
HK-94 to less than 16 inches.  You may "divorce" the two, but don't
do that if the host gun will end up an unregistered short barreled
rifle, or other unregistered NFA weapon.  This marriage info is in
box 4(h) on the Form 4, so anyone who looks at the paperwork can
see the sear is in that gun; local law enforcement, for instance.

    If the gun is a sear conversion you may not alter the receiver
to full auto configuration, in particular you may not install a
push pin lower on your HK.  You may alter a push pin lower shell to
accommodate your clip-on trigger pack, so it looks authentic, but
don't alter the receiver.  You may also alter one of the MG burst
packs to fit on your semi-auto receiver, provided it is also
modified internally so it no longer just uses the MG trigger pack
with the original MG trip.  Making an unaltered MG trigger pack fit
the semi-auto is making a new conversion device; some registered HK
conversion parts are MG trigger packs modified to fit right on the
semi-auto receiver.

    This is an area with a variety of items registered; many in the
frenzy of registration after the 1986 making ban was being passed
into law, similar to the frenzy of making seen in 1994 during
Congressional deliberation on the ban on new manufacture of
"semi-automatic assault weapons" for sale to civilians.

    A few notes: before November, 1981, BATF did not consider the
drop-in AR-15 sear to be a machine gun in itself, because you had
to replace all the internal parts with M-16 parts, as well as
install the sear, and thus it didn't convert the AR by itself.
However in ATF Ruling 81-4, BATF changed its mind about what a
thing had to do in order to be a conversion part, grandfathered all
AR sears made before the ruling, and decided all made after that
needed to be registered.  HOWEVER, the fact that the sear itself,
if made before 11/81, and sold through ads in Shotgun News to this
day (they sure made a lot of 'em back then, or maybe not) is not
required to be registered, DOES NOT mean you may install it in an
AR-15, or even possess it with an AR-15 rifle, or with other M-16
parts. Either scenario is considered a machine gun also, and also
subject to the NFA, and sec. 922(o).  Indeed one court has held
that ATF's grandfathering is not effective, and that even a pre-81
sear may not be sold or possessed after 11/81 without complying
with all laws applicable to machine guns.

    Likewise an M-1 carbine receiver and an M-2 carbine receiver are
identical, and all the parts to convert a gun from an M-1 to an M-2
are available on the surplus market.  HOWEVER having all the parts,
and an M-1, or even just enough of the M-2 parts to get an M-1 to
fire full auto as a kit, constitutes a machine gun under the NFA.

                       DEWATs

    A DEWAT is an unserviceable gun that has an intact receiver,
thus, as the GCA of 1968 is construed, it is a machine gun.  In
1955 the ATT decided that a gun that was a registered war souvenir
(or for a time, a contraband unregistered gun) could be removed
from the coverage of the NFA if it was rendered unserviceable by
steel welding the breech closed, and steel welding the barrel to
the frame.  All this was to be done under the supervision of an ATT
inspector.  See Revenue Ruling 55-590.  The gun became a wall
hanger, ornament, like parts sets now.  This was not the same as an
unserviceable gun, which was still subject to the NFA, but exempt
from the transfer tax.  These steel welded guns were DEWAT's.
DEWAT stands for DEactivated WAr Trophy; it was regularly done for
servicemen who wished to bring home NFA weapons as war souvenirs.
It was also done to WWI and WWII era guns imported as surplus by
companies like ARMEX International, and Interarmco, and then sold
through the mail in ads in gun magazines.  The glory days before
1968.  A DEWAT must now be registered to be legal, there is no
longer a legal difference between a DEWAT and an unserviceable
weapon.  A few states only allow individuals to own DEWAT machine
guns, Iowa and Kansas come to mind.

    A DEWAT machine gun transfers tax free, as a "curio or
ornament", on a Form 5.  To be a DEWAT, a gun should have a steel
weld in the chamber, and have the plugged barrel steel welded to
the frame or receiver.  Having said that, a gun may be registered
as unserviceable and not be de-activated in this manner.  It may
have cement or lead in the barrel, or a piece of rod welded,
soldered or brazed in the barrel. Despite the repeated warnings
from ATT, apparently DEWATs were made or imported that did not have
steel welds.  And a weapon registered as "unserviceable" before
1968 was not held to these standards.  One (ostensible) reason
machine gun receivers were redefined as machine guns in 1968, thus
bringing DEWATs under the NFA regulation, was that folks were
regularly and easily making their DEWATs live guns w/o complying
with the law. Some barrel plugs were so poor they would fall out
with little coaxing.

    To re-activate the gun, ATF requires you file a fully completed
Form 1 (ie you get the gun on a Form 5, including the law
enforcement certification, photo and fingerprints.  You have to do
all that again for the Form 1), and pay the $200 tax the gun was
exempt from before. Then when that is returned approved you can
install a replacement barrel, or get the weld out of the barrel, if
possible.  In the alternative, a Class 2 manufacturer may
re-activate the gun, and file a Form 2 reflecting the gun is now
live.  ATF considers re-activating to be manufacturing, and
requires the re-activator to mark the gun with his name and
address, whether done on a Form 1 or Form 2.  If you sent your
DEWAT to a Class 2 to make live he would have to transfer it back
to you on a fully completed Form 4, as a tax paid transfer. These
procedures are not in the NFA law nor the regulations. They are
apparently based in part on the Revenue Rulings that created the
DEWAT program in the 1950's.  As a DEWAT was not a NFA firearm,
before 1968, requiring the making tax made sense then as you were
making a machine gun out of something that was the equivalent of a
door stop, legally.  Now that is not true, the DEWAT is a machine
gun, and no making tax should attach, as you are not "making"
anything, merely changing the gun from unserviceable to
serviceable.

    Folks who are around NFA guns for very long will find there are
still a lot of DEWAT guns that were never registered during the
Amnesty, and are now contraband unregistered machine guns. Folks
have them in closets, up over the mantle...  The only safe course
is to abandon an unregistered NFA weapon to law enforcement.

                     ANY OTHER WEAPONS

    An AOW is:
    "...any weapon or device capable of being concealed  on the
    person from which a shot can be discharged through the
    energy of an explosive, a pistol or revolver having a smooth
    bore designed or redesigned to fire a fixed shotgun shell,
    weapons with combination shotgun and rifle barrels 12" or
    more, less than 18" in length, from which only a single
    discharge can be made  from either barrel without manual
    reloading, and shall include any weapon which may be readily
    restored to fire.   Such term shall not include a pistol or
    revolver having a rifled bore, or rifled bores, or weapons
    designed, made or intended to be fired from the shoulder and
    not capable of firing fixed ammunition." 26 U.S.C. sec.
    5845(e).

    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 a very few H&R Handy
Guns, together 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 most 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.

    ATF has made the decision that a handgun (but not a machine gun,
since a machine gun is not also an AOW) with more than one hand
grip at an angle tot eh bore 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 magistrate 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.  ATF does not regard the
decision as binding. The case is U.S. v. Davis, Crim No. 8:93-106
(D.S.C. 1993) (Report of Magistrate, June 21, 1993).  The
prosecution was dismissed at the request of the Government before
any review of that determination by the trial judge.

    By the same thinking ATF has decided that "wallet" holsters for
small guns, from which the gun can be fired, and which  disguise
the outline of the gun, are AOW's.  This would affect, for example,
the North American Arms mini-revolver and the wallet holster NAA
used to sell for the gun, as an accessory.  Or the wallet holster
Galco used to make for the Beretta model 21 pistol.  ATF seems to
be thinking that the grip has disappeared, and thus it fits into
the first category.

    In all likelihood, the wallet holster decision was an outgrowth
of calling the combination of a briefcase from which the gun can be
fired, and the gun, an AOW.  The cases were usually meant for the
SMG version of the gun, which was fine, but could accomodate the
semi-auto pistol version of the MAC, or HK MP5K as well, and that
combo of the case and semi-auto pistol was considered the AOW.

        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".

                     DESTRUCTIVE DEVICES

        26 U.S.C. sec. 5845(f) "The term destructive device
    means
    1) any explosive, incendiary or poison gas
        A) bomb
        B) grenade
        C) rocket having propellant charge of more than four
    ounces
        D) missile having an explosive or incendiary charge of
    more than one-quarter ounce
        E) mine, or
        F) similar device
    2) any type of weapon by whatever name known which will, or
    may be readily converted to, expel a projectile by the
    action of a explosive or other propellant, the barrel or
    barrels of which have a bore of more than one-half inch in
    diameter, except a shotgun or shotgun shell which the
    Secretary or his delegate finds is generally recognized as
    particularly suitable for sporting purposes; and
    3) any combination of parts either designed or intended for
    use in converting any device into a destructive device as
    defined in subparagraphs (1) and (2) and from which a
    destructive device may be readily assembled.   The term
    'destructive device' shall not include any device which is
    neither designed nor redesigned for use as a weapon; any
    device although originally designed for use as a weapon,
    which is redesigned for use as a signaling, pyrotechnic,
    line throwing, safety or similar device; surplus ordnance
    sold, loaned or given by the Secretary of the Army pursuant
    to the  provisions of section 4684(2), 4685 or 4686 of title
    10 of the United States Code; or any other device which the
    Secretary of the Treasury or his delegate finds is not
    likely to be used as a weapon, or is an antique or is a
    rifle which the owner intends to use solely for sporting
    purposes."

    Secretary in the above refers to the Secretary of the Treasury,
unless it says otherwise.  The fee for the FFL to deal in DD's is
$1000 a year (type 09), and one must also be a special taxpayer,
add another $500 a year.  Making them requires a different $1000 a
year FFL (type 10), although an individual may make them on a Form
1, tax paid ($200).  Transfers require the whole routine just like
full-autos; a form 4, $200 tax, a law enforcement sign-off,
pictures and fingerprints.  Most class 3 dealers don't have the
$1000 a year FFL to deal in DD's.   Note that antiques are
excluded.  Thus the definition of an antique NFA firearm is
important.

        26 U.S.C. sec. 5845(g) "Antique firearm.-The term 'antique
    firearm' means any firearm not designed or redesigned for using
    rim fire or conventional center fire ignition with fixed
    ammunition and manufactured in or before 1898 (including any
    matchlock, flintlock, percussion cap, or similar type of ignition
    system or replicas thereof, whether actually manufactured before
    or after the year 1898) and also any firearm using fixed
    ammunition manufactured in or before 1898, for which ammunition
    is no longer manufactured in the United States and is not readily
    available in the ordinary channels of commercial trade."

    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.  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.

                 FIREARM SILENCERS

    While the statute calls these devices "silencers" or "mufflers",
the US NFA industry term is "sound suppressor", as the word
silencer has been given a negative connotation, and because it is
inaccurate, as these devices do not eliminate all sound from firing
a gun.  However you can point the folks who get all high and mighty
about the use of the word "silencer" to this definition; it is the
legal term.

        18 U.S.C. sec. 921(a)(24)  "The term 'firearm silencer' or
    'firearm muffler' means any device for silencing, muffling, or
    diminishing the report of a portable firearm, including any
    combination of parts, designed or redesigned, and intended for
    use in assembling or fabricating a firearm silencer or firearm
    muffler, and any part intended only for use in such assembly or
    fabrication."

    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) 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.

    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?

              SHORT BARRELED RIFLES

    A short barreled rifle (SBR) is defined in the law as:
    26 U.S.C. sec. 5845(a)
    *  *  *  *
    (3) a rifle having a barrel or barrels less than 16 inches
    in  length;
    (4) a weapon made from a rifle if such weapon as modified
    has an  overall length of less than 26 inches or a barrel or
    barrels of less than 16 inches in length; * * *

    The NFA law also  defines "rifle":

    26 U.S.C. 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 definition 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 U.S. v. Thompson/Center Arms
Co., 504 U.S. 505 (1992) ATF said a set consisting of a receiver,
a 16"+ barrel, a pistol grip stock, a shoulder stock, and a barrel
less than 16 inches long was a short barreled rifle.  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 approved of converting a
pistol into a rifle, and then converting it back into a pistol,
without "making" a short barreled rifle when it is converted back
into a pistol; that was not an issue.  See, for example Revenue
Rulings 59-340, 59-341 and 61-203.  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,