National Firearms Act (United States)
The National Firearms Act (NFA), cited as the Act of June 26, 1934, Ch. 757, 48 Stat. 1236, as amended, currently codified as Chapter 53 of the Internal Revenue Code, 26 U.S.C. § 5801–5872, is a United States federal law passed in 1934 that, in general, imposes a statutory excise tax on the manufacture and transfer of all Title II weapons and mandates the registration of those weapons.
The Act was passed after the repeal of Prohibition, and it mandates that transfers of the covered firearms across state lines be reported to the Department of the Treasury (this function has since been transferred to the Department of Justice). The transfer tax of $200 placed on the transfer of firearms controlled by the Act was roughly equivalent to five months' salary in 1934.[1]
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Categories of Weapons Regulated
The NFA defines a number of categories of weapons which are regulated therein. Collectively, these are known as "Title II" weapons and include the following:
- Machine guns - this includes any firearm which can fire more than 1 cartridge per trigger pull. Both continuous fully-automatic fire and "burst fire" (ie, weapons with a 3-round burst feature) are considered machine gun features.
- Short-Barreled Rifles (SBRs) - this category includes any weapon with a buttstock and either a rifled barrel under 16" long or an overall length under 26". The overall length is measured with any folding or collapsing stocks in the extended position. The category also includes weapons which came from the factory with a buttstock that was later removed by a third party.
- Short-Barreled Shotguns (SBSs) - this category is defined similarly to SBRs, but the length limit for the barrel is 18" instead of 16", and the barrel must be a smoothbore. The overall length limit remains 26".
- Silencers - this includes any portable device designed to muffle or disguise the report of a portable firearm. It does NOT include non-portable devices, such as sound traps used by gunsmiths in their shops which are large and usually bolted to the floor.
- Destructive Devices (DDs) - there are two broad classes of destructive devices. The first contains devices such as grenades, bombs, poison gas weapons, etc. The second contains any non-sporting firearm with a bore over 0.50" (many firearms with bores over 0.50", such as 12-gauge shotguns, are exempted from the law because they have been determined to have a legitimate sporting use).
- Any Other Weapons (AOWs) - this is a broad "catch-all" category used to regulate any number of weapons which the ATF deems deserving of registration and taxation. Examples include smoothbore pistols, pen guns and cane guns, short-barreled weapons with both rifled and smooth bores, etc.
In general, even the components that make up an NFA item are considered regulated. For example, each baffle inside a silencer, if removed from the tube, is considered a silencer in and of itself. Thus, individuals cannot own any part of a silencer without registering it with the BATFE and paying NFA taxes. Likewise, owning the parts needed to assemble other NFA weapons is generally prohibited. A person cannot own machine gun trigger components unless he owns a registered machine gun. Owning both a short barrel and a legal-length rifle could be construed as intent to build an illegal unregistered SBR.
The registration process, purchases, taxes and transfers
It is a common misconception that an individual must have a "Class 3 License" in order to own NFA weapons. This is not the case. One must only have a Class 3 license (more properly known as an 03 SOT) to buy and sell NFA weapons as a business. Individual owners do not need any license under the NFA to buy Title II weapons. However, the purchase and sale of NFA weapons is heavily taxed and regulated, as follows.
All NFA items must be registered with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Private owners wishing to purchase an NFA item must obtain permission from the ATF, obtain a signature from the county sheriff or city or town chief of police (not necessarily permission), pass an extensive background check to include submitting a photograph and finger prints, fully register the firearm, receive ATF written permission before moving the firearm across state lines, and pay a tax. The request to transfer ownership of an NFA item is made on an ATF Form 4.[2]
NFA items may also be transferred to corporations (or other legal entities such as a trust). When the paperwork to request transfer of an NFA item is initiated by an officer of a corporation, a signature from local law enforcement is not required, and fingerprint cards and photographs do not need to be submitted with the transfer request. Therefore, an individual who lives in a location where the chief law enforcement officer will not sign a transfer form can still own an NFA item if he/she owns a corporation.
The tax for privately manufacturing any NFA firearm (other than machineguns, which are generally illegal to manufacture) is $200. Transferring requires a $500 tax for all NFA firearms except AOWs, for which the transfer tax is $5 (although the manufacturing tax remains $200). Dealers who pay a special yearly occupational tax are exempt from these taxes for transfers to or from other special occupational taxpayers (SOTs). The registration or transfer process takes approximately 1-3 months to complete. Additionally, the firearm can never be handled or transported by any other private individual unless the firearm's registered owner is present. Corporations which own NFA weapons can loan them to any employee of the corporation with a letter of permission on the corporate letterhead. NFA items owned by trusts may be legally possessed by any trustee (ie, if a husband and wife are both trustees, either of them may use and transport the weapon without the other present).
Upon the demand of any ATF agent, the registered owner must produce the original ATF Form with tax stamp affixed to prove the weapon is legally owned. Technically speaking, owners are not required to produce the form for any non-ATF personnel (ie, local police officers do not have the legal right to demand to see the form). However, in practice, most NFA weapon owners keep a photocopy of their paperwork with the weapon at all times and will show it to any authority that requests it, simply to avoid harassment or detainment, or the seizure of the weapon. Most owners keep the original form in a safe place, such as a safe deposit box, to avoid damaging it as the ATF will not replace a $200 tax stamp that is damaged. Prudent owners try to keep the original form out of harm's way.
There are a number of situations in which an NFA item may be transferred without a transfer tax. These include sales to government agencies, temporary transfers of an NFA weapon to a gunsmith for repairs, and transfer of an NFA weapon to a lawful heir after the death of its owner. Any permanent transfer, even if tax-free, must be approved by the ATF by submitting the proper form before the transfer can occur. For example, lawful heirs must submit a Form 5 and wait for its approval before taking possession of any NFA item willed to them. Temporary transfers, such as those to a gunsmith or to the original manufacturer for repair, are not subject to ATF approval since they are not legally considered transfers. However, the ATF still recommends filing tax-free transfer paperwork on all such temporary transfers, to confer an extra layer of legal protection on both the owner and the gunsmith.
Criminal conduct under the Act
The NFA makes certain conduct a criminal offense, including but not limited to: engaging in business as a manufacturer, importer, or dealer with respect to firearms without having registered or paid a special occupational tax; receiving or possessing a firearm transferred to oneself in violation of the NFA; receiving or possessing a firearm made in violation of the NFA; receiving or possessing a firearm not registered to oneself in the National Firearms Registration and Transfer Record; transferring or making a firearm in violation of the NFA; or obliterating, removing, changing, or altering the serial number of the firearm.[3]
Criminal penalties
Violations of the National Firearms Act are punishable by up to 10 years [4] in federal prison and forfeiture of all devices or firearms in violation, and the individual's right to own or possess firearms in the future. The Act provides for a penalty of $10,000 for certain violations.[5] A willful attempt to evade or defeat a tax imposed by the Act is a felony punishable by up to five years in prison and a $100,000 fine ($500,000 in the case of a corporation), under the general tax evasion statute.[6] For an individual, the felony fine of $100,000 for tax evasion could be increased to $250,000.[7]
The market for NFA items
Importation of NFA weapons was banned by the 1968 Gun Control Act which implemented a "sporting" clause. Only firearms judged by ATF to have feasible sporting applications can be imported for civilian use. Licensed manufacturers of NFA weapons may still, with the proper paperwork, import foreign NFA weapons for research and development purposes.
The manufacture of new machine guns that civilians could purchase was effectively banned by language in the Firearm Owners Protection Act of 1986. The language is found in the so-called Hughes Amendment, which was passed under legally questionable circumstances.[8] All machine guns legally registered prior to the date of enactment (ie, May of 1986) are still legal for possession by and transfer among civilians where permitted by state law. The static and relatively small number of transferable automatic firearms has caused their price to be often over $10,000, although transferable M10 and M11 submachine guns (more commonly known as "Mac 10's") can still be purchased for around $3,500. Machine guns manufactured after the FOPA's enactment can be sold only to law enforcement and government agencies, exported, or in some cases held as inventory by licensed manufacturers and dealers. Non-transferrable guns made after 1986 are usually priced only a few hundred dollars more than their semi-automatic counterparts, whereas a machine gun that can be legally transferred commands a huge premium.
All other NFA weapons, which are not addressed in the Hughes Amendment, are still legal for manufacture by, and transfer to, civilians (though some states have their own laws governing which NFA weapons are legal to own there). Silencers and SBRs are generally the most popular NFA weapons among civilians, followed by SBSs, DDs, and AOWs. While most NFA weapons are bought from manufacturers and transferred to civilians through a Class 3 dealer, many are made by the civilians themselves after filing a Form 1 and paying the $200 manufacturing tax. In some cases the manufacture is simple (ie, using a pipe cutter to shorten a shotgun barrel), and sometimes quite complex (making an effective, modern silencer generally requires several thousand dollars' worth of machine tools).
The Miller case
In the 1930s, the United States District Court for the Western District of Arkansas ruled the statute unconstitutional in United States v. Miller. The defendant Miller had been arrested for possession of an unregistered short barreled shotgun. The government's argument was that the short barreled shotgun was not a military weapon and thus not a "militia" weapon protected by the Second Amendment. The District Court agreed with Miller's argument that the shotgun was legal under the Second Amendment.
The District Court ruling was overturned on a direct appeal to the United States Supreme Court (see United States v. Miller). No brief was filed on behalf of the defendants, and the defendants themselves did not appear before the Supreme Court. No evidence that such a firearm was "ordinary military equipment" had been presented at the trial court (apparently because the case had been thrown out -- at the defendants' request -- before evidence could be presented), and the Supreme Court indicated it could not take judicial notice of such a contention.
The Supreme Court ruled that the NFA provision (criminalizing possession of certain firearms) was not unconstitutional under the Second Amendment.
Subsequent rulings have been allowed to stand, indicating that short-barreled shotguns are generally recognized as ordinary military equipment if briefs are filed (e.g., see: Cases v. United States[9]), describing use of short-barreled shotguns in specialized military units.
Criticisms and uncertainty after Miller
The validity of the Miller decision has been questioned, based on the fact that short barreled shotguns were used by American troops during the trench warfare of World War I, and after the Miller decision in World War II and the Vietnam War. The decision is further criticized because the law further regulates all automatic weapons, resulting in most ordinary military weapons also being regulated.
The scope of the application of the Act to privately constructed firearms or devices is uncertain. Such items would normally be regulated under the Act's provisions, but are intended for private ownership only and not for sale. As the Act's application is derived from the federal legislature's Constitutionally enumerated power of regulation over interstate commerce, it is unclear how privately-constructed firearms or devices built solely for personal possession (i.e. not intended to be delivered into the stream of interstate commerce) are affected by the Act.
Crime
While NFA weapons as a whole are perceived by the American public as dangerous, their use in crime is exceedingly rare. Legally-owned (ie, NFA-registered) machine guns have only been used in two murders since 1934, and one of the murders was committed by a police officer.[10] A previous director of the ATF testified before congress that fewer than ten registered machine guns (out of over 240,000 in the nation) have ever been used in any type of crime (including nonviolent offenses such as failing to notify ATF of address changes, etc.). The criminal use of other legally-owned NFA weapons is similarly rare. The Title II weapons used in prominent crimes, such as the West Hollywood bank shootout, have universally been illegally-owned or illegally-converted weapons.
See also
Notes
- ↑ http://www.vtlmi.info/PCIvt.htm
- ↑ ATF Form 4
- ↑ 26 U.S.C. § 5861.
- ↑ 26 U.S.C. § 5871.
- ↑ Id.
- ↑ 26 U.S.C. § 7201.
- ↑ See 18 U.S.C. § 3571(b)(3).
- ↑ Gun Law News - Firearm Owners Protection Act of 1986.
- ↑ 131 F.2d 916, 922 (1st Cir. 1942).
- ↑ http://www.guncite.com/gun_control_gcfullau.html
