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National Firearms Act Myths

Machine Guns and Bigfoot: National Firearms Act Myths

By Attorney Trent D. Woods, 480-360-1776

Bigfoot sightings are surprisingly common. So is internet information

regarding machine guns, silencers, short barrel rifles, and short

barrel shotguns. The two are often equally reliable. Unfortunately, a

large percentage of the information on the internet about the legality

of machine guns and silencers is inaccurate, or flat out false. Much

like Bigfoot sightings, these myths seem to spread and permeate

countless internet forums, blogs, and websites. And sadly, people

believe them. Unlike believing Bigfoot ran across Uncle Herb’s

campsite, believing and relying on internet gun myths can put

unaware individuals in great legal danger. Violations of the National

Firearms Act (“NFA”), which regulates the following types of

weapons: machine guns, silencers, short barrel rifles, short barrel

shotguns, destructive devices, and Any Other Weapons, carries

extreme penalties: up to 10 years imprisonment, up to $10,000.00

in fines, confiscation of the weapons, and even confiscation of

vehicles that NFA weapons were transported in. Plus, any willful

attempt to evade or defeat the taxes imposed by the NFA will

subject the violator to an additional 5 years imprisonment and up to an additional $500,000.00 in fines. Thus, total penalties for NFA violations are as long as 15 years in prison, as much as $510,000.00 in fines, plus confiscation. Additionally, violators may face long and expensive legal battles in attempt to avoid the penalties. On top of that, the violator faces the social stigma of the arrest and trial, and the massive hassle of a criminal prosecution that may drag on for years, even if the defendant ends up beating the charges. Because of the serious consequences of NFA violations, it is important for people to know what is fact and what is fiction. NFA firearms are highly regulated; the law is complex, highly technical, and ripe for confusion. Let’s separate the Bigfoot sightings from truth. Without further ado, here are some of the most common myths regarding NFA firearms, in no particular order:

  • Machine Guns, suppressors, short barrel rifles and shotguns, destructive devices, and Any Other Weapons (AOWs) are illegal to own.FALSE. This is one of the most common myths. Under federal law, all of these are legal to own. Some states do restrict ownership of some items; however, the majority of states permit the majority of NFA items. In Arizona, we have no such restrictions. Two caveats: a) civilian ownership of machine guns is generally restricted to machine guns manufactured and registered prior to May 19, 1986; and b) all NFA firearms must be registered in a national registry maintained by the BATFE and are subject to a one-time $200 tax upon manufacturing and/or each transfer.  As an example, here is a map showing which states where silencers are currently (Feb 2014) legal (courtesy of the American Silencer Association):

  • You need a “Class 3 license” to buy/own NFA firearms.FALSE. This is one of the most common myths. A “Class 3 license” refers to a dealer’s license, not a license civilians must get to own or buy NFA firearms. In fact, a class 3 license is not even necessary for a dealer to buy and sell NFA firearms: there are two other licenses that permit dealing in NFA firearms. A federal firearms licensee (“FFL” – a gun dealer) obtains legal permission to deal in NFA firearms by paying an annual Special Occupancy Tax (“SOT”). There are three classes of SOT: class 1) importer of NFA firearms; class 2) manufacturer of NFA firearms; and class 3) dealer of NFA firearms. Thus, “class 3” clearly refers to a dealer of NFA firearms, but classes 1 and 2 can also sell NFA firearms in addition to importing or manufacturing the firearms as well. Civilians can legally own NFA firearms, without a license, by submitting a small amount of paperwork to the ATF and by paying a one-time $200 tax (or $5 if the firearm is an AOW) per item in order to transfer the item to them in the registry. Some states may require additional permitting or other approval. Arizona does not.
  • All sales of NFA firearms must go through a FFL/SOT. FALSE. Intrastate sales between two individuals that can legally own firearms can be completed by submitting ATF form 1 and paying the applicable transfer tax, without having to use a gun dealer. Likewise, sales of C&R firearms (those classified as Curio or relic) can be sold directly to an individual who holds a C&R type FFL without the use of a SOT.
  • NFA firearm owners have to pay the $200 tax every year. FALSE. The tax is only paid if the firearm is transferred, as legally defined. Typically, a buyer pays the tax when they buy an NFA firearm and never pays a tax on that item again. When they sell the item, the new buyer pays the tax.
  • The BATFE or police can search my home at any time if I own NFA firearms.FALSE. This is one of the most common myths that won't seem to go away. The Fourth Amendment against unreasonable searches and seizures still applies to you the same as it did before buying NFA items. The government cannot search your home without permission or a warrant. Even FFLs’ shop is only inspected once per year, and only during business hours, assuming there are no violations which require follow up visits to the FFL.
  • I can loan my NFA firearms to friends and family.FALSE. Not only is this statement generally false, it can be incredibly dangerous too. Loaning an NFA firearm is considered a legal transfer and requires ATF approval and payment of the tax prior to making the transfer. The term “transfer” is defined as “selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of” an NFA firearm. It is illegal for any person to receive or possess an NFA firearm that is not registered to them. You must have ATF approval prior to making any transfer. Loaning an NFA firearm without ATF approval is a felony for both the loaner and loanee, in fact it may be more than one felony!  Such a transfer could both be a violation of the prohibition against unapproved transfers, and a violation of the prohibition against possessing an NFA firearm that is not registered to you.  This point brings us to our next myth...
  • I can let my friends and family use and possess my individually-owned NFA firearms in my presence.MIXED VERACITY. This statement is not technically false, but it is not true either. There is no legal support for this belief. At this point in time, the ATF unofficially appears to be permitting this type of behavior, however, there is no statute or regulation that specifically permits it. As such, the ATF’s tolerance of this practice could change in a split second and offenders could be arrested, prosecuted, and have no legal leg to stand on. As discussed above, it is illegal for anyone to possess an NFA firearm that is not registered to them.  Just as a person can be arrested for illegally possessing marijuana by holding it in their hand, a person illegally possesses an NFA firearm by holding it in their hand if they are not the registered owner.  Furthermore, such possession could be considered to be a loan and would thus be illegal under that analysis as well.  Much depends on how the term “loan” is legally defined by a court. See myth 6 above. As of now, I cannot find any definition by a court in this context. However, Merriam-Webster’s dictionary defines the word loan as “permission to use something for a period of time,” or “something lent usually for the borrower’s temporary use.” Either definition could clearly include the practice of allowing friends and family to use and possess individually-owned NFA firearms, even in the owner’s presence. This problem is exacerbated if the individual owner happens to be out of eyesight of the NFA firearms, even for a short time (say to use the restroom while at the range), and leaves the firearms in the care of others. It certainly can be argued that the owner did not have control or possession of the firearms and thus had transferred control to someone else at that point. Thus, if allowing friends and family to use and possess individually-owned NFA firearms could be considered a “loan,” and it easily could, such a loan is a transfer and is illegal without ATF permission. Again, the practice of permitting friends and family to use individually-owned NFA firearms in the owner’s presence appears to be tolerated by the ATF at the current time, however, there is no guarantee that such tolerance will continue in the future. That makes it a very risky proposition. This problem and risk can be eliminated by owning NFA firearms in a well-drafted gun trust.
  • I have to store my NFA weapons in a locked gun safe. FALSE. This statement is technically false because there is no legal requirement to keep NFA items in a gun safe; however, this statement is rooted in truth because owners do have a legal duty not to transfer possession or control of NFA firearms to anyone that is not legally authorized to possess them. NFA firearms that are registered to an individual cannot be legally possessed by anyone else besides the registered individual – including their spouse, parents, children, or roommates. Possession is not limited to actual physical possession either, constructive possession, or the ability to gain control, also counts. Thus, a spouse who happens to know where the NFA weapon is stored is likely constructively possessing an NFA firearm that is not registered to him or her.  Possessing an NFA firearm that is not registered to you is a felony.  Plus, it is highly possible that an illegal transfer may have occurred as well!  This includes scenarios in which one spouse simply knows the combination to the gun safe where the individually-owned NFA weapon is stored! Despite that, it is still wise to store all weapons, but especially NFA firearms, in a locked gun safe. This problem and risk can be eliminated by owning NFA firearms in a well-drafted gun trust which allows some shared usage and possession.  Not all gun trusts do so.
  • Silencers make guns silent.FALSE. Anyone that says this has never actually been around when a gun with a silencer has been fired. Though silencer is the legal name for gun muffling devices, suppressor is a much more accurate term. The sound is suppressed, not silenced. Silencers are designed to diminish the report of a discharged round by slowing and cooling the expulsion of hot gasses that push the bullet out of the barrel (this is called muzzle blast). Other sounds associated with the bullet firing are not affected by silencer usage: a silencer does not reduce the sound associated with the cycling action of firearm, sonic boom (caused by bullets traveling faster than the speed of sound), or of the bullet hitting its target. Hollywood depictions of silencers are typically extremely exaggerated. Most calibers, whether 9mm, 40sw, 45acp, .223 win, 5.56 Nato, or .308 win, are by no means silent when suppressed. The average unsuppressed gun fire is approximately 160 decibels (“dB”) (this is an average only – it clearly varies what caliber is used, the type of gun, air temperature, etc).  Comparatively, an average suppressor will typically reduce the sound by about 25 - 30 dB to a total sound level of around 130 dB.  In comparison:

a whisper 6 feet away30 dB
a jackhammer 50 feet away95 dB
a power saw 3 feet away110 dB
a jackhammer 2 feet away120 dB
average suppressed gun130 dB
a jet engine 100 feet away
140 dB
average unsuppressed gun160 dB

          As you can see, a 130 decibel sound is still quite loud and is far from truly being Hollywood “silent.” One of the main benefits of silencer use           is prevention of hearing damage. Pain begins at about 125 dB while permanent hearing damage can occur at 140 dB even with short                     term exposure.

  • Registered NFA Firearms are killing machines that are regularly used in crimes.FALSE. This statement is patently false and appears to exist solely for political gain. There are very few documented cases of registered NFA firearms being used to commit crimes. In fact, I am aware of no more than five examples total in the history of the NFA (since 1934) where a registered NFA Firearm was used in the commission of a crime. That means that all six types of NFA firearms combined are used in crimes less than one crime every 15 years! Contrarily, blunt objects (clubs, hammers, etc) are used to murder someone about 500-600 times per year. That is actual murder, not just “used in crimes.”
  • There are ways to ‘get around’ the $200 tax stamp.FALSE. Not only is this false but it is a terrible idea. If you have ever thought this before, stop it now. It may be possible to make or own a NFA firearm without paying the $200 tax (or $5 tax in the case of an AOW), but there is certainly no way to do legally. If you own, make, buy, or otherwise acquire an NFA firearm without registering the firearm and paying the tax you broke the law. Period. Remember, violations of the National Firearms Act (“NFA”) carries extreme penalties: up to 10 years imprisonment, up to $10,000.00 in fines, confiscation of the weapons, and even confiscation of vehicles that NFA weapons were transported in. Plus, any willful attempt to evade or defeat the taxes imposed by the NFA, which “getting around” them surely is, will subject the violator to an additional 5 years imprisonment and up to an additional $500,000.00 in fines. There is no legal way to “get around” the tax so don’t try.
  • It is illegal to make an NFA firearm yourself.FALSE. Persons who are not otherwise prohibited from possessing firearms may submit an application to make an NFA firearm, other than a machinegun. A non-FFL/SOT can make an NFA firearm by filing an ATF form 1 (in duplicate) with the ATF, paying the tax ($200 unless AOW), and obtaining ATF approval BEFORE they start to make the item. After approval and receipt of the tax stamp, the person may make the firearm. Identification of the maker (individual name, or trust name if a gun trust is the maker), plus the maker’s city and state, must be engraved on the barrel or frame or receiver of the weapon with 7 days of making the weapon.  Making a personal firearm is clearly permitted, but should not be done with the intent to sell it - that requires a license.
  • NFA firearms are completely unaffordable for the average person.FALSE. Of course, affordability is relative to each person and their circumstances, however, not all NFA firearms cost an arm and a leg. Some just cost a leg. Machine guns are extremely expensive for civilians to own. Since civilians can only own machine guns that were manufactured prior to May 1986, there is a finite supply available. The laws of supply and demand dictate that the price must increase as demand increases since supply cannot increase. Other items, besides machine guns can still be manufactured currently so their cost is typically substantially less. Here are typical prices, not including the tax stamp, for NFA items as of February 2014:

Firearm TypeLow PriceHigh Price
Machine Guns$3,000$50,000
Short Barrel Rifles$250$3,000
Short Barrel Shotguns$250$2,500
Destructive Devices$300$200,000
Any Other Weapons$300$2,000

As you can see, some items are potentially affordable for many gun enthusiasts. Many ‘regular’ guns can easily cost several thousand dollars, so NFA firearms are not unreachable for those willing to spend that type of money on a gun. Silencers for 22lr caliber guns typically range from $200-450. Silencers for 9mm or 45acp typically range from about $400-1000.

Can you now see the truth about NFA firearms now?

Can you now see that “Bigfoot” was actually just a deer running through the forest? Mistaking a deer for Bigfoot might be embarrassing but it isn’t going to land you in a federal penitentiary; mistaking federal firearms laws might though. When you see, read, or hear these myths being preached, please refer people to this article. Share it. Link to it. Post it. Let’s help people see the truth from the myths. Some one’s freedom just might depend on it. If you have specific questions about how state or federal gun laws pertain to you and your situation, please do not hesitate to contact me. Likewise, if you would like a gun trust or help obtaining NFA firearms for yourself give me a call. FFL’s are welcome to call me too. I have helped many FFL’s comply with the law. I can help you too. You can reach me at 480-360-1776. Or if you are ready to get your own gun trust now, hit the green button below.