Gun Laws

The National Firearms Act of 1934 (NFA 34): This law placed certain classes of firearms into a registered ownership category. Private individuals can possess a functional machine gun, silencer (suppressor), short-barreled rifle or shotgun, smooth-bore pistol, cane gun, or destructive device (certain shotguns, grenade launchers, hand grenades, bazookas, mortars, cannon, etc.) only after first paying a Federal Transfer Tax of either $5 or $200 per firearm/device. The $5 tax applies to pen guns, cane guns, smoothbore pistols, or any other such firearm that the Bureau of Alcohol, Tobacco and Firearms classifies as “Any Other Weapon” (AOW).  All other functional guns or devices in the NFA registry require payment of a $200 federal tax for each private transfer.  The tax is not an annual tax.  It only is paid each time a functional NFA firearm is being transferred to or from a private owner (excepting inheritance).

The Gun Control Act of 1968 (GCA 68):Largely modeled after the 1938 Gun Control Act of Nazi Germany, a section of this law updated the NFA 34 by restricting the transfer of newly imported machine guns to the military, law enforcement, and certain Special Occupational Tax (SOT) payers.  In addition, a short moratorium was provided before the law went into effect, to allow unregistered machine guns and other NFA firearms already in private hands, to be added to the Federal Registry without penalty.

The Gun Owners Protection Act of 1986 (GOPA 86):A somewhat vague statement was added to this bill that has been interpreted by the Bureau of Alcohol, Tobacco and Firearms (BATF) and some Federal Courts to mean no machine guns registered after enactment (May 19, 1986) can be built and sold to private individuals.  BATFE further concluded that SOT payers cannot receive “post-May” guns without  first presenting a letter from a qualifying government agency that has requested to see the firearm.   These rulings do not apply to other types of NFA firearms.  Transfers to government agencies having law enforcement or military functions are allowed.  SOT payers who are also licensed as manufacturers are allowed to produce machine guns from scratch, from kits, or by means of conversion.  They cannot transfer them to private individuals.  They can be transferred to other SOT payers or government agencies only as described above.  Post-May guns cannot be retained by a SOT payer who fails to renew his SOT annually.

The Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA 94): This law sunset on 30 Sep 04 and no longer applies. This law banned the public sale of new detachable magazines with more than a ten round capacity, and invented a new term – assault weapon, the future manufacture of which were also banned from public sale.  Note, the law applies only to firearms manufactured after enactment of the law.  Specifically, it limits certain features on certain types of firearms.  Semiautomatic rifles with detachable magazines may possess no more than one of the following features: pistol grip protruding conspicuously beneath the action, telescoping or folding stock, threaded barrel desinged to accommodate a flash suppressor, flash suppressor (not to be confused with a muzzle brake), grenade launcher, bayonet mount.  Semiautomatic pistols with detachable magazines may possess no more than one of the following features: magazine that attaches outsidethe pistol grip, threaded barrel, shrouded barrel, unloaded weight of 50 ounces or more, a semiautomatic version of an automatic firearm.  Semiautomatic shotguns may possess no more than one of the following features: folding or telescoping stock, pistol grip that protrudes conspicuously below the action, fixed magazine capacity over five rounds, ability to accept detachable magazines.

State Laws and Local Ordinances: Most states allow ownership of NFA firearms, but some states or local municipalities have statutes or ordinances that restrict or ban ownership.  At last count thirteen states placed some sort of restrictions on the types of NFA firearms you could own (anything from requiring a state permit to outright denial).  These include California, Hawaii, Illinois, Iowa, Kansas, Maine, Michigan, Missouri, New Jersey, New York, and Rhode Island.   If you are uncertain of the laws in your area, contact your state or national gun rights organization for help.  They likely will know more about your local firearms laws than anybody else.

Government Agency Transfers: There are no federal prohibitions on any type of government entity acquiring most NFA firearms, including many destructive devices.  Some states prohibit law enforcement agencies from possessing certain types of NFA firearms or destructive devices.  Government agencies are exempt from paying Federal Transfer Taxes or Federal Excise Taxes.  In most cases, machine guns and other NFA weapons can be imported, purchased off-the-shelf, or custom manufactured specifically for any authorized government agency.  Excluding direct military contracts with licensed manufacturers, all other transfers to government agencies, including law enforcement agencies, must first be approved by BATF.   All foreign transfers require State Department approval.

SOT Dealer Transfers: The SOT (Special Occupational Tax) is an annual fee paid to the U.S. Treasury Department by dealers, manufacturers, or importers of certain products including alcohol, tobacco, and firearms.  In the case of firearms, the SOT is broken down between NFA dealers, manufacturers, and importers (A separate SOT applies to destructive devices).  For our purposes the term “SOT payer” refers to any currently licensed gun dealer, manufacturer, or importer who also has paid the SOT for dealing in NFA firearms.  SOT payers have the advantage of being able to transfer functional NFA firearms to or from other SOT payers and government agencies, with BATFE approval, but without having to pay a transfer tax.  SOT payers also can acquire registered NFA firearms from any regular gun dealer or private citizen, but only after paying the applicable transfer tax and receiving BATFE approval.  SOT payers can transfer certain functional NFA firearms to in-state residents and to both in-state and out-of-state regular gun dealers, but only after they have paid the appropriate transfer tax and received approval from BATF.

Regular Gun Dealer Transfers: Regular gun dealers or manufacturers who do not have SOT’s, still can acquire functional NFA firearms from in-state or out-of-state sources.  If the firearm is a machine gun, they are restricted to purchasing only those machine guns registered prior to May 19, 1986, excluding all dealer samples.  The applicable NFA transfer taxes must first be paid on each NFA firearm ordered.  Once this paperwork is approved and they have received shipment, transfers can then be conducted with private individuals in-state, or with other dealers either in-state or out-of-state.  These transfers also require payment of the tax and BATFE approval before they can be completed.

How to Pay the Tax: If you are acquiring an NFA firearm from a SOT payer, he will provide you with copies of the required paperwork for each firearm being transferred to you.  If this is a private transfer or a transfer from a regular gun dealer who does not possess a SOT, forms can be acquired from the Bureau of Alcohol, Tobacco and Firearms (BATF), National Firearms Act Branch, Washington, D.C.  Some states have their own requirements in addition to the federal paperwork.  Check with the appropriate licensing bureau in your state.  The federal paperwork involves three forms, two of which must be completed in duplicate (ATF Form 4 and fingerprint card).  The front of the ATF Form 4s are filled out and signed by the seller (See exceptions for SOT payers and corporations below).  On the back of the Form 4s are placed recent photographs of the purchaser.  The purchaser also signs the block under his photograph.  The bottom backside of the forms are endorsed by the purchaser’s sheriff, chief judge, police chief, etc.  The second set of forms are FBI fingerprint cards.  While the Form 4s are being endorsed, ask to be fingerprinted using the cards supplied by BATF.  Both the person fingerprinted and the person taking them sign these forms.  The third form is the ATF 5330.20, Certificate of Compliance with 18 U.S.C. 922(g)(5)(B).  This is a statement by the transferee (buyer) that he is a legal resident of the United States.  The transferee should complete this form using capital letters and sign it.  The transferor (seller) then mails the paperwork and a check for the Federal Transfer Tax to BATFE.  On average it takes about 90 days for approval.  The seller will receive back one of the Form 4s with a Federal Transfer Tax Stamp attached to it.  This is given to the purchaser when he picks up the NFA firearm.  It’s his firearm from then on.  No further tax is due.

Corporate or Estate Ownership: In some areas it is difficult to get a law enforcement signature on the ATF Form 4.  To circumvent this problem, some people purchase the gun through a corporation or an estate.  If you are a SOT payer acquiring a firearm from a private source, a private individual who is creating an estate, or someone who is incorporated or is a senior officer in a corporation, you can acquire an NFA firearm on an ATF Form 4 without the need for a law enforcement endorsement, photograph, or fingerprint card.  You still must pay the Federal Transfer Tax.  If the gun is transferred to a corporation, it must be retained by the corporation until it is dissolved.  At such time the gun must be sold on a tax paid transfer, retitled to someone on a tax paid transfer, or surrendered to the BATF.  In the case of estate ownership, it can be transferred or inherited.

Travel and Use:  Do not take NFA firearms out of state without first checking with BATFE.  For machine guns, short barrel rifles, and short barrel shotguns, you will need prior approval from BATFE on a Form 5320.20 to travel interstate or to permanently move NFA firearms to another state.   This protects you from accidentally going some place where they are banned.  If the state you are traveling to allows possession of the type of NFA firearm you own, and you have received prior approval on a Form 5320.20 (if applicable), then you can transport the firearm through any state just like any other firearm.  That means it must be unloaded and readily inaccessible (in a locked case or trunk of the car).  While in a travel status you are afforded the same protection as any other gun owner under the GOPA 86 law.  You cannot be legally arrested for simply passing through a state, county, or township where the guns are banned unless you violate the procedures just described or stop in that state for an extended period of rest.  Necessary stops for food, gas, repairs, etc., are allowed.  Stopping to site-see, visit friends, or even spend the night, might be construed as an unnecessary delay and place you at risk.  Check your state and local laws for other restrictions that may apply regarding hunting, concealed carry, or self-defense with an NFA firearm.

Temporary Transfers:  NFA firearms may be left for repair with an authorized person (dealer, gunsmith, manufacuturer) without filing any federal paperwork (check your state and local laws for any restrictions).  BATFE advises owners to first file a Form 5 before doing this.  The Form 5 was designed for the purposes of inheritance, government acquisition, or to transfer a deactived firearm.   It looks very similar to the Form 4, the main difference being that no tax is paid.   However, law enforcement endorsements and fingerprint cards are required (unless waived by BATFE).  As a result, the Form 5 is a bit awkward for purposes of repair.   If you are taking the firearm to someone local and reputable, and the repairs won’t take a very long time, then a Form 5 may seem pointless.  If you are shipping the firearm to someone you don’t know, it might be best to use the Form 5 as an audit trail.  Indeed, some companies won’t accept NFA firearms without an approved Form 5.  Use your best judgement.

Transferable Firearms:  NFA firearms that can be transferred to private citizens on an ATF Form 4 are the most desirable, and therefore most expensive ones to acquire.  They are often referred to as “fully transferable”.   Nearly all NFA suppressors, short barrel rifles, short barrel shotguns, and AOWs are transferable.  The number of registered machine guns that are transferable was frozen in 1986.  Included in this category are the following machine guns:

Original or converted machine guns, whether foreign or domestic, if added to the Federal Registry prior to enactment of  the GCA 68.

Deactivated war trophies (DEWAT) that were registered prior to enactment of the GCA 68.  DEWATs can be reactivated after payment of the $200 Federal Transfer Tax and approval by BATF.

Domestically manufactured or remanufactured guns that were registered after the GCA 68 enactment, but prior to the GOPA 86 (May 19th, 1986).  This includes registered receivers, sears, bolts, or other parts accepted by BATF.

Imported guns that were remanufactured into machine guns prior to the GOPA (May 19, 1986).  This includes registered receivers, sears, bolts, or other parts accepted by BATF.

Curios and Relics: Some states allow private ownership of machine guns only if they are listed as Curios & Relics by the Federal Government.   Examples would include original Thompson 1921 or 1928 submachine guns, and early production M-16 rifles.  The Curios & Relics list is periodically updated and you can petition for particular guns to be added.  Normally a gun is accepted to the list if the Federal Government determines it is of some historic value or of such an age or rarity that it is unlikely to see criminal use.  Collectors who possess a Curios & Relics license (FFL) can purchase these guns out-of-state, with prior payment of the applicable transfer tax and approval by BATF.

Pre-May Dealer Sample: Machine guns imported after 1968 and prior to May 19, 1986, are transferable to FFL dealers (01) and manufacturers (07) who have paid the Special Occupational Tax (SOT) for the current year.  A dealer who acquires a pre-May dealer sample and then fails to pay the SOT in succeeding years may retain the gun in his private collection.  It only can be transferred to someone holding a SOT or to an approved government agency, usually military or law enforcement.   An exception is made sometimes if the gun is being inherited from the dealer’s estate by a family member.

Post-May Dealer Sample: Any machine gun manufactured or imported after May 19, 1986, can be transferred between SOT payers only if they first provide a letter on agency letterhead showing that a legitimate government organization has requested to see it.  This usually means a law enforcement agency or military unit.  The gun can be retained by the dealer/manufacturer only so long as he pays his annual SOT.  If he drops the SOT, BATFE expects him to first dispose of, surrender, or destroy the gun.  It can be transferred only to another SOT payer or approved government agency, as previously described.

Privately Building NFA Firearms: Provided there are no state or local restrictions, you can build your own NFA firearm if you receive prior approval from BATFE on a tax paid Form 1.  Along with the Form 1, you must include fingerprint cards, law enforcement endorsement, and a drawing of the firearm.   Machine guns will not be approved.  Only suppressors, short barrel shotguns, short barrel rifles, and AOWs will be approved.  In all cases, the tax will be $200 per firearm.  Once approved, they will be treated as any other fully transferable NFA firearm.