National Firearms Act - Categories of Firearms Regulated

Categories of Firearms Regulated

The National Firearms Act of 1968 (NFA) defines a number of categories of regulated firearms. These weapons are collectively known as NFA firearms 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" (i.e., firearms with a 3-round burst feature) are considered machine gun features. The weapon's receiver is by itself considered to be a regulated firearm.

Short-barreled rifles (SBRs)—this category includes any firearm 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 firearms 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 barrel must be at least 18" instead of 16", and the barrel must be a smoothbore. The minimum overall length limit remains 26".

Silencers —this includes any portable device designed to muffle or disguise the report of a portable firearm. This category 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:

• Devices such as grenades, bombs, explosive missiles, poison gas weapons, etc.

• Any firearm with a bore over 0.50 except for shotguns or shotgun shells which have been found to be generally recognized as particularly suitable for sporting purposes. (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 firearms which the BATFE under the NFA enforces registration and taxation. Examples include, among others:

1) Smooth-bore pistols 2) Pen guns and cane guns 3) A firearm with combinations smooth bore and rifle barrels 12 inches or more but less than 18 inches in length from which only a single shot can be made from either barrel. 4) Disguised firearms 5) Firearms that can be fired from within a wallet holster or a briefcase 6) A short-barreled shotgun which came from the factory with a pistol grip and no buttstock is categorized as an AOW (smooth-bore pistol) rather than a Short Barrel Shotgun (SBS), because the Gun Control Act describes a shotgun as, “…designed or redesigned to be fired from the shoulder…” 7) Handguns with a forward vertical grip.

Legal Cases Involving Firearm Category Classifications

The AOW listing is one area of legal debate with respect to the addition of the foregrip to a handgun/pistol. BATFE has held that it is illegal to place an aftermarket foregrip on any pistol/handgun without first registering it as an AOW and paying the $200 "making tax" imposed by the National Firearms Act (NFA). BATFE has made the decision that a handgun (but not a machine gun, since a machine gun is not also legally an AOW) with more than one hand grip at an angle to the bore is an AOW. BATFE reasoning is based on the firearm: a) being concealable on the person, and b) not meeting the definition of a "pistol" in the regulations promulgated under the NFA (not the Gun Control Act of 1968 where the definition in law resides for a handgun/pistol), as BATFE deems a pistol/handgun is a firearm with a single grip at an angle to the bore. However, two federal cases exist that counter this finding. 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 hangun/pistol does not make it an AOW. BATFE does not regard the this magistrate's 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.

In another federal case, US v. Fix (UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Christopher FIX, Defendant-Appellant. No. 00-10789. August 29, 2001), the 5th Circuit Federal Appeals Court countered BATFE. Originally, in the trial case, Fix was convicted under 26 U.S.C. § 5861(d) of possession of an unregistered NFA firearm found during a search of his home and business as a weapon that required NFA registration. In US v. Fix, he appealed and the 5th Circuit Court of Appeals reviewed the trial case. The 5th Circuit noted that Fix was a defendant who was found to be in possession of a handgun/pistol that had a second pistol/foregrip attached. On appeal, Fix argued that the Government/BATFE did not prove the handgun/pistol with a second pistol grip added was an unregistered NFA firearm. The 5th Circuit Court of Appeals presided and found in a related provision that a GCA "firearm" is defined by a list of eight weapons and a catchall provision of "any other weapon." See 26 U.S.C. §5845(a). "Any other weapon" includes "any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive," but not "a pistol . . . having a rifled bore . . ." See 26 U.S.C. § 845(e). Weapons not included in the definition of firearm in § 5845 need not be registered under § 5861(d). Fix argues that his firearm was a pistol, not an NFA AOW that met the exception in §5845(e), and, therefore, did not need to be registered under §5861. The 5th Federal Circuit Court of Appeals found that the Government/BATFE failed to prove a violation of §5861(d) for two reasons. First, the weapon did not fit the definition required by the statute in the NFA. The provision defining "pistol" for the purposes of the statute is 27 C.F.R. §179.11, which defines a pistol as "a weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand..." The government argues that because the handgun/pistol was modified to be fired with two hands, it "falls out" of the definition of pistol and falls back into the definition of "any other weapon" in § 5845. The 5th Circuit found BATFE's argument ignores the definition's requirement that the weapon be capable of being held with one hand at the time it was originally designed and made. As written, the GCA or NFA definition does not consider modifications of the weapon by the owner. The 5th Circuit court further found that the handgun/pistol in this case was originally designed and made to be fired with one hand, and still could be, despite the addition of a foregrip. Second, the definition of "any other weapon" in §5845(a) and (e) expressly excludes weapons with a rifled bore which this handgun/pistol had. The 5th Circuit held that the "any other weapon" provision was intended as a catch-all category in which to gather sawed-off shotguns and other hybrid weapons. A sawed-off shotgun may be concealed like a pistol, but would have the smooth bore of a shotgun. The 5th Circuit court also noted that the Government/BATFE's own witness stated that the involved handgun/pistol had a rifled bore, and thus, cannot be considered an "any other weapon."

The Gun Control Act (GCA) under 27 CFR 478.11 defines a handgun/pistol as: 27 CFR 478.11: Handgun. (a) Any firearm which has a short stock and is designed to be held and fired by the use of a single hand; and (b) Any combination of parts from which a firearm described in paragraph (a) can be assembled.

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 and at an angle to and extending below the line of the bore(s).

Semiautomatic pistol. Any repeating pistol which utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge.

Therefore, no wording exists in the law (either GCA or NFA) that states the addition of a vertical foregrip to a handgun/pistol originally designed to be held with one hand is an AOW. BATFE, however, still maintains the stance that such an action is enforceable under NFA. BATFE's position was formalized in April 2008 in their NFA Handbook (ATF Publication 5320.8 April 2008) which classifies an AOW as follows:

2.1.5 Any other weapon. Firearms meeting the definition of “any other weapon” are weapons or devices capable of being concealed on the person from which a shot can be discharged through the energy of an explosive. Many “any other weapons” are disguised devices such as penguns, cigarette lighter guns, knife guns, cane guns and umbrella guns. Also included in the “any other weapon” definition are pistols and revolvers having smooth bore barrels designed or redesigned to fire a fixed shotgun shell. While the above weapons are similar in appearance to weapons made from shotguns, they were originally manufactured in the illustrated configuration and are not modified from existing shotguns. As a result, these weapons do not fit within the definition of shotgun or weapons made from a shotgun. The “any other weapon” definition also includes specifically described weapons with combination shotgun and rifle barrels 12 inches or more but less than 18 inches in length from which only a single discharge can be made from either barrel without manual reloading. The firearm most commonly associated with this portion of the definition is the Marble’s Game Getter. The “any other weapon” definition excludes weapons designed to be fired from the shoulder that are not capable of firing fixed ammunition or a pistol or revolver having a rifled bore. However, certain alterations to a pistol or revolver, such as the addition of a second vertical handgrip, create a weapon that no longer meets the definition of pistol or revolver. A pistol or revolver modified as described is an “any other weapon” subject to the NFA because the weapon is not designed to be fired when held in one hand. As stated above, a pistol or revolver having a rifled bore does not meet the definition of “any other weapon” and is not subject to the NFA. It is important to note that any pistol or revolver having a barrel without a rifled bore does not fit within the exclusion and is an “any other weapon” subject to the NFA.

NOTE: Various legal experts argue that BATFE's position/enforcement is tantamount to illegal taxation on items which have no wording in either the GCA or NFA while BATFE maintains that it is exercising its authority granted to it by Congress under the Department of Treasury in its enforcement of the NFA.

• Suppressor parts, Machine Gun Sears, and other parts associated with NFA items.

In general, certain components that make up an NFA item are considered regulated. For example, each baffle inside a suppressor, if removed from the tube, is considered a suppressor. Such suppressor parts may only be possessed by Class-II manufacturers. An individual cannot even repair a suppressor –– it must be returned to a Federal Fiream License holder (FFL) who has status as a Class-II/Special Occupation Taxpayer (SOT) manufacturer for repairs. Thus, individuals not licensed with BATFE cannot legally own any part of a suppressor without registering it with the BATFE and paying NFA taxes BEFORE construction of said item. Suppressor is the term used within the trade/industry literature while the term 'silencer' is the term used in the actual wording of the NFA. The terms are oftentimes used interchangeably depending on the source quoted.

Suppressors and machine guns are the most heavily regulated. For example, in Ruling 81-4, BATFE declared that any AR-15 Drop-in Auto-Sear (DIAS) made after November 1, 1981 is itself a machine gun, and is therefore subject to regulation. While this might seem to mean that pre-1981 sears are legal to possess without registration, BATFE closes this loophole in other publications, stating, "Regardless of the date of manufacture of a drop in auto sear, possession of such a sear and certain M-16 fire control parts is possession of a machinegun as defined by the NFA. Specifically, these parts are listed as “(a) combination(s) of parts” designed “Solely and exclusively” for use in converting a weapon into a machinegun and are a machinegun as defined in the NFA." ATF machinegun technology letters written between 1980 and 1996 by Edward M. Owen – the then-chief of the ATF technology division defined “solely and exclusively” in all of his published and unpublished machinegun rulings with specific non-ambiguous language.

Owning the parts needed to assemble other NFA firearms is generally restricted. An individual cannot own or manufacture certain machine gun sear (fire-control) components unless he owns a registered machine gun. The M2 Carbine trigger pack is such an example of a “combination of parts” that is a machinegun in and of its own. Most of these have been registered as they were pulled from surplus rifles in the early 1960’s. In some special cases, exceptions have been determined to these by the BATFE. A string or shoelace that could be looped around the cocking handle of a semiautomatic firearm and then behind and in front of the trigger in such a way as to allow the firearm to be fired automatically is no longer considered a machinegun unless it is attached in this manner.

Most current fully automatic trigger groups will not fit their semi-automatic firearm look-alike counterparts – the semi-automatic version is specifically constructed to reject the fully automatic trigger group by adding metal in critical places. This addition is required by the ATF to prevent easy conversion of Title I firearms into machine guns. Additionally, some fully automatic trigger groups are also permanently modified in such a way that they can no longer be made to function as fully automatic fire control devices. The ATF has listed required manufacturing procedures for modifying these fully automatic trigger groups to make them into legal semi-automatic trigger-groups for civilian sales.

For civilian possession, all machineguns must have been manufactured and registered with the ATF prior to May 19, 1986 to be transferable between citizens. These machinegun prices have drastically escalated in value, especially items like registered sears and conversion-kits. Only a Class-II manufacturer (a FFL holder licensed to manufacture firearms or Type-07 license that has paid a Special Occupational Tax Stamp or SOT) could manufacture machineguns after that date, and they can only be sold to Government, law-enforcement, and military entities. Transfer can only be done to other SOT FFL-holders, and such FFL-holders must have a “demonstration letter” from a respective Government agency to receive such machineguns. Falsification and/or misuse of the “demo-letter” process can and has resulted in long jail sentences and felony convictions for violators.

All NFA weapons made by individuals require that the weapon be legal in the State or municipality where the individual lives, and the payment of a $200 “making tax” prior to manufacture of the weapon, although a subsequent transfer of AOWs after they are legally “made” is only $5. Only a Class-II manufacturer (a FFL holder licensed as a “Manufacture of Firearms” or Type-07 license that has paid a Special Occupational Tax Stamp or SOT) can manufacture NFA firearms (other than destructive devices) making-tax free.

A Destructive Device manufacturing license or Type-10 FFL holder can manufacture destructive devices making-tax free. However a type-07 license costs $150 for three years –– whereas a Type-10 destructive manufacturing license costs $3000 for three years. Both licenses still require the payment of the $500 (reduced-rate) Special Occupational Tax Stamp or SOT, (or the $1000 full tax) per year to conduct manufacturing of NFA weapons that they are respectively qualified to manufacturer. The SOT “reduced rate” applies to a business whose sales are less than $500,000 per year.

Owning both a short barrel and a legal-length rifle could be construed as intent to build an illegal, unregistered SBR. This possibility was contested and won in the U.S. Supreme Court case of United States v. Thompson-Center Arms Company. BATFE lost the case, and was unable to prove that possession of a short barrel for the specific pistol configuration of a Thompson Contender is illegal. The BATFE later released ruling 2011-4 to clarify the legal status of owning such conversion kits.

Removal of a weapon from classification as an NFA firearm, such as the reclassification of the original Broomhandle Mauser with shoulder stock from "short barrel rifle" (SBR) to a curio or relic handgun, changed its status as a Title II NFA firearm but did not change its status as a Title I Gun Control Act firearm.

Muzzle-loading firearms are exempt from the Act (as they are defined as 'Antique Firearms' and are not considered 'Firearms' under either the GCA or the NFA). Thus, though common muzzle-loading hunting rifles are available in calibers over 0.50", they are not regulated as destructive devices. Muzzle-loading cannons are similarly exempt since the law draws no distinction between the size of the muzzle-loading weapons; thus it is legal for a civilian to build muzzle-loading rifles, pistols, cannons and mortars with no paperwork. While an 'antique firearm' is not considered a 'firearm' under the NFA, some states (such as Oregon) have laws that specifically prohibit anyone from owning/obtaining an 'antique firearm' that could not otherwise own/obtain an GCA or NFA defined 'firearm' (i.e., felons, recipients of dishonorable discharge from military service, the mentally adjudicated, etc.)

Individuals or companies seeking to market large-bore firearms may apply to the ATF for a "Sporting Clause Exception." If granted, the ATF acknowledges that the firearm has a legitimate sporting use and is therefore not a destructive device. Many large safari rifle calibers, such as .585 Nyati and .577 Tyrannosaur, have such exceptions.

The phrase "All NFA Rules Apply" is commonplace these days—this disclaimer is usually posted in bold print from firearm dealers holding an FFL license.