Reenacting and the National Firearms Act – How to be legal and knowing your rights

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The purpose of this article is not to discuss the history of the NFA or its background. The purpose is to assist and educate my fellow reenactors on being knowledgeable, current and legal when it comes to firearms ownership.

What is the National Firearms Act?
The National Firearms Act enacted on June 26, 1934, currently codified as amended as I.R.C. ch. 53, is an Act of Congress in the United States that, in general, imposes a statutory excise tax on the manufacture and transfer of certain firearms and mandates the registration of those firearms. The NFA is also referred to as Title II of the Federal firearms laws. The Gun Control Act of 1968 (“GCA”) is Title I.

All transfers of ownership of registered NFA firearms must be done through the National Firearms Registration and Transfer Record (the “NFA registry”).The NFA also requires that the permanent transport of NFA firearms across state lines by the owner must be reported to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Temporary transports of some items, most notably suppressors, do not need to be reported. The National Firearms Act of 1934 (NFA) defines a number of categories of regulated firearms. These weapons are collectively known as NFA firearms and include the following:

Machine guns (MGs or FAs)
This includes any firearm which can fire repeatedly, without manual reloading, “by a single function of the trigger.”Both continuous fully automatic fire and “burst fire” (e.g., firearms with a 3-round or any multi round burst feature) are considered machine gun  features. The weapon’s receiver is by itself considered to be a regulated firearm. A non-machinegun that may be converted to fire more than one shot per trigger pull by ordinary mechanical skills is determined to be “readily convertible”, and classed as a machine gun, such as a KG-9 pistol, MAC-10/11 or any weapon that fires from an open bolt. (pre-ban ones are “grandfathered”)

Short Barreled Rifles (SBRs)
This category includes any firearm with a buttstock and either a rifled barrel less than 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 with either a smoothbore barrel less than 18″ long or a minimum overall length under 26″.

Suppressors
The legal term for a suppressor is silencer. This category 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 and bullet 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, land mines, artillery, mortars, bombs, explosive missiles, poison gas weapons, etc.
Any firearm with a bore over 1/2 inch 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″ inch, such as 10-gauge or 12-gauge shotguns, are exempted from the law because they have been determined to have a “legitimate sporting use”.)

Any other weapon (AOW)
Firearms meeting the definition of “any other weapon” or AOW 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 AOWs are disguised devices such as pens, cigarette lighters, knives, cane guns and umbrella guns. AOWs can be pistols and revolvers having smooth bore barrels (e.g., H&R Handy-Gun, Serbu Super-Shorty) 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 that way and were 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 AOW definition 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 ATF Firearms Technology Branch has issued opinions that when a pistol (such as an AR-type pistol) under 26″ in overall length is fitted with a vertical fore-grip, it is no longer “designed, made and intended to fire … when held in one hand,” and therefore no longer meets the definition of a pistol. Such a firearm then falls only within the definition of “any other weapon” under the NFA.

Gun Parts
In general, certain components that make up an NFA item are considered regulated. For example, the components of a silencer are considered as “silencers” by themselves and the replacement parts are regulated. Faux suppressor or “Cans” that have can be threaded onto a barrel and have threaded end caps can be deemed a suppressor. Baffles and other parts are deemed suppressors as well. An example of this is the use of an oil filter fitted or threaded onto the end of a firearm. The filter itself is not a suppressor but the moment it has a hole in the end of it that a bullet exits from it is deemed a suppressor and is subsequently regulated. However, the repair of original parts can be done by the original manufacturer, FFL gunsmith, or by registered owner without being subjected to new registration as long as the serial number and the dimension (caliber) are maintained. The length may be reduced in repair, but cannot be increased. Increasing the length is considered as making a new silencer. “Suppressor” or “Muffler” is the term used within the trade/industry literature while the term “silencer” is the commonly used term that appears in the actual wording of the NFA. The terms are often used interchangeably depending on the source quoted. 

Suppressors and machine guns are the most heavily regulated. For example, in Ruling 81-4, ATF 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, ATF 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.

Owning the parts needed to assemble other NFA firearms is generally restricted. One 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 machine gun in and of itself. Most of these have been registered as they were pulled from stores of surplus rifles in the early 1960s. In some special cases, exceptions have been determined to these rules by ATF. A semiautomatic firearm which could have a string or shoelace looped around the cocking handle of 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 the string 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 ATF to prevent easy conversion of Title I firearms into machine guns.

So what is legal? What can I own or buy?
For civilian possession, all machineguns must have been manufactured and registered with the ATF prior to May 19, 1986 to be transferable between citizens. 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. Machine guns manufactured after May 19, 1986 are known in the industry as “Post Samples”. Transfer or sale of these machine guns can only be made to Government Agencies or 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.

There are generally three ways to own a NFA item: as an individual, through a gun trust, or as a Limited Liability Company (LLC).
Legal possession of an NFA firearm by an individual requires transfer of registration within the NFA registry.
An individual owner does not need to be an NFA dealer to buy Title II weapons. The sale and purchase of an NFA weapon is, however, 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 approval from the ATF, pass an extensive background check to include submitting a photograph and fingerprints, 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.
The tax for privately manufacturing any NFA firearm (other than machineguns, which are illegal for individuals to manufacture) is $200. Transferring requires a $200 tax for all NFA items except AOW’s, for which the transfer tax is $5 (although the manufacturing tax remains $200).

All NFA weapons made by individuals must be legal in the State or municipality where the individual lives.

Upon the request of any ATF agent or investigator, or the Attorney General, the registered owner must provide proof of registration of the firearm.

Muzzle-loading firearms are exempt from the NFA (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 makes no distinction about the size of muzzle-loading weapons.
Thus it is legal for a civilian to build muzzle-loading rifles, pistols, cannon, and mortars with no paperwork.
However, ammunition for these weapons can still be classified as destructive devices themselves, such as explosive shells.
While an ‘antique firearm’ is not considered a ‘firearm’ under the NFA, some states (such as Oregon) have laws that specifically prohibit anyone 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.) from owning/obtaining an ‘antique firearm’.

Ok, this is a lot of legalese what does this all mean and how does it affect me?
What this all means for the modern reenactor is fairly simple. Below are several scenarios which would be common in reenacting.

Q. I have a GSG (or other make) semi auto MP40, Thompson, PPS43, etc. It was sold as a pistol and I want to put a stock on it OR fix the attached stock that was welded in the closed position i.e. PPS43 to make it authentic. Can I do this?

A. Yes, as long as you completed ATF Form 4 and have received your Tax Stamp. You may NOT mount, install or even possess the stock until your Form 4 has been approved.

Q. I have a Thompson, Suomi, Sten etc. that has a 16″ barrel and I want to cut or buy the correct barrel for it to be authentic. Can I do this?

A. Yes, as long as you have completed ATF Form 4 and have received your Tax Stamp. You may NOT cut down, install or even possess the new barrel until your Form 4 has been approved.

Q. I have a Luger or C96 and I bought a Reproduction Stock for it. Can I mount the stock, etc. legally?

A. This is something that a lot of people get confused over. If a pistol were possessed with an attachable shoulder stock, the combination would be subject to the provisions of the National Firearms Act (NFA). However, the Bureau of Alcohol, Tobacco and Firearms (ATF) has previously determined that by reason of the date of their manufacture, value, design, and other characteristics, certain stocked handguns, such as original semiautomatic Mauser “Broomhandles” and Lugers when possessed with an attachable shoulder stock, are primarily collector’s items and are not likely to be used as weapons, and, therefore, are excluded from the provisions of the NFA. This would apply to Mauser and Luger semiautomatic pistols accompanied by original German mfd. detachable wooden holster/shoulder stocks, all semiautomatic German mfd. variations produced prior to 1940, any caliber. Further, ATF has determined that such firearms are curios or relics as defined in Title 26, Code of Federal Regulations, Part 178, § 178.11 and, therefore, would still be subject to the Gun Control Act of 1968. ATF has previously determined that Mauser and Luger pistols with reproduction stocks, which duplicate or closely approximate the originals, have also been removed from the provisions of the NFA. Copies of the Mauser pistol using frames of recent manufacture, with shoulder stocks, are still subject to the NFA. If an individual possesses a pistol and shoulder stock combination that has not been removed from the provisions of the NFA, the combination would constitute a firearm subject to the provisions of the NFA. The fact that the stock was not attached to the pistol would have no bearing on this classification.

Q. I want to make a BFONG out of a parts kit I have for a Sten or MP40, STG44, MG42, etc. Can I do this?

A. This is a complex and long answer but the short answer is NO. 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 do this as the construction process would require you to build a working machine gun to convert into a BFONG.

Q. I have a Sten and I want to make a replica/Faux Suppressor for it to mimic the stens the SAS used. Can I do this?

A. Short answer; Yes. However, be careful how you contruct this as it can be deemed a suppressor. If your item is nothing more than a barrel shroad or flash hider then you are legal.
Assing more complex features ie. end caps etc will get you into trouble.

Q. I bought this old gun off some guy at a swap meet and I think it’s a machine gun. Is this ok for me to have?

A. The most common sense answer is NO. You cannot “private purchase” a legally owned transferrable machine gun.  Nor can you own a unregistered NFA item. If you are unsure contacting the local ATF Branch is the best answer. 

Q. What about gas guns?

A. Typically Gas Guns were demilled kits i.e. “non-guns” so making them into a Gas Gun is legal as it is still a “non-gun”.

Q. So I am interested in restoring a tank. How does that work.

A. A tank in it of itself is NOT a DD. However if main gun is live OR you want functional MGs then that is a different animal. Each MG is a NFA item and the main gun would be a NFA item.

Q. I bought a old artillery piece. The breech is welded shut and there is a cap welded on the end. I want to make this fire again. Am I allowed to do that?

A. Yes, you are as long you register it first with the ATF. Once you do that you may then re-activate the gun or mortar etc.

Q. I want to buy a live 76mm, 155mm, or 60mm mortar round for my Artillery, Tank, or mortar etc. How do I do that?

A. Buying or owning HE items is beyond the scope of this article. However, short answer is you will need a lot more than just registering each round as a NFA item. You will need a federal Explosives License and a Magazine to store these in. A magazine is basically a concrete bunker buried in the earth used to store explosives.

Q. I know my great uncle has a machine gun he brought back from WW2. I am ok to use this or own it right?

A. Not so fast. As long as the weapon was registered prior to 1986 then you are ok. Many of these war bring backs were never registered and therefore are illegal machine guns.

Q. I got this Stg44,Mp40,Tommy Gun, etc and it was “deactivated” it has lead plug in the barrel. What do I need to make it work again?

A. This is a special item known commonly as a “DEWAT”. These are still NFA items and need to be registered. If they were registered prior to 1986 then they are transferrable machine guns. If they were not registered they are illegal machine guns and illegal to posess.

Q. I got a machine gun from someone. Cant I just “demill” it to make it legal?

A. NO. The mere act of possessing this is a FELONY.

Q. So what does the phrase “all NFA rules apply” mean? I saw it on a website selling guns.

A. This disclaimer is usually posted in bold print from firearm dealers holding an FFL and SOT license.

Q. So what does all this mean to me? Whats the big deal? What can happen to me if I dont follow these laws?

A. Violations of the NFA are punishable by up to 10 years 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. 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 or trust), under the general tax evasion statute. For an individual, the felony fine of $100,000 for tax evasion could be increased to $250,000. The ATF has and does prosecute individuals. The list is LONG. Bottom line, its not worth the risk so you look cool at the re-enactment.

Q. I know someone or suspect someone who has a illegal NFA item. What should I do? What If I am wrong though? What if it really legal?

A. You should report them to them ATF. This is a serious violation. If the item is legtimately registered there is no harm done. The ATF will ask for proof of the registration which is required to be shown. In instances of NFA violations it is better to be safe than sorry.

For further reading on this topic see

https://www.atf.gov/rules-and-regulations/national-firearms-act

https://www.atf.gov/qa-category/national-firearms-act-nfa

 

 

 

 

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