By Robert Hausman
The House Judiciary Committee left for summer recess on July 28th without taking action on HR 5005, the Firearms Correction and Improvement Act of 2006 which includes provisions that firearms importers have sought. The bill would correct the decision by ATF last year that prohibits the importation of barrels, frames and receivers for non-sporting firearms subject to 22 USC §925(d)3. This is the reason machine gun kits are beginning to appear on the market without barrels.
Additionally, the legislation would liberalize the restrictions on importation of machine guns for the purposes of training or testing of firearms. It would allow the sale of post-86 machine guns to civilians fulfilling a contract with the U.S. government that requires the use of these firearms.
While ATF has not publicly commented on this legislation, it is reported that ATF supports the provisions in the bill relaxing restrictions on importation of the affected parts.
Other bills that would benefit the industry that the House did not take action on before leaving for recess were:
- H.R. 5092 – A bill that would improve ATF’s process for punishing the few FFLs who violate the law, and establish guidelines for ATF investigations. This bill was drafted largely to address recent ATF abuses at Richmond, Virginia area gun shows highlighted in hearings before the U.S. House Judiciary Committee’s Subcommittee on Crime, Terrorism and Homeland Security.
- H.R. 1384 – Would remove some antiquated and unnecessary restrictions imposed on interstate firearms business.
- H.R. 1288/S. 1082 – Legislation to repeal the draconian D.C. gun ban and restore the right of lawful District residents to own firearms to defend themselves and their families.
- H.R. 4547/S.3275 – Would allow persons with a valid carry permit issued by a state to carry a concealed firearm in any other state if he or she meets certain criteria. The laws of each state governing where concealed firearms may be carried would still apply.
The House did, however, vote to impose a ban on governments taking firearms from citizens during disasters, such as occurred in New Orleans in the aftermath of Hurricane Katrina. The House voted overwhelmingly July 25 for legislation to bar federal officials or local law enforcement agents that get federal money from confiscating legally-owned firearms during a natural disaster. The legislation now moves to the Senate for consideration.
Belgium Gun Owners Protest New Law
In Belgium, the union of gun owners (UNACT) is taking legal action against the federal government’s recently imposed tighter gun control law.
UNACT claims the new law undermines the legal certainty of gun owners and the industry and puts them in a position where the government can confiscate all lawfully owned firearms at any time and declare the firearms trade in that country illegal.
Some 10,000 gun owners have signed a petition demanding the abolition of part of the new legislation. The new weapons law was introduced on 8 June in response to racist shootings in Antwerp in May in which two people were killed.
Due to the new law, it is no longer possible to buy a gun without a permit. Gun owners are prepared to accept that stipulation. However, UNACT claims the law is unfeasible and will therefore fail to achieve its goals. It said illegal weapon possession will increase, rather than decline.
Specifically, the Union was critical of the short amount of time allotted to gun owners to register their guns under the new law and the fact that permits are being issued on a “temporary” basis.
ATF indicated that in 2005 it conducted 5,239 inspections of licensees. It revoked about 2.5% of licenses (113 licensees) and about a half of a percent (27 FFLs) were arrested and criminally prosecuted. These numbers demonstrate that the vast majority of FFLs are law-abiding.
SHOT Show Q&A:
The following questions and answers were issues that were brought to the attention of ATF during the 2006 Shot Show.
Q:Does a Federal firearms licensee (FFL) have to enter a replacement firearm into their acquisition and disposition (A&D) book?
A: When an FFL receives a replacement firearm from a supplier in exchange for a firearm that could not be repaired, the firearm should be entered into the FFL’s A&D book. The firearm can then be shipped to the purchaser. No ATF Form 4473 is required. 18 U.S.C. § 922(a)(2)(A)
Q:If the purchaser answered no to question 11.l (Are you a nonimmigrant alien?) on the ATF Form 4473, can they leave question 12 blank?
Q:After what period of time must a firearm retained by a gunsmith be entered into their acquisition and disposition book?
A: If the gunsmith has possession of the firearm from one business day to another or longer, the firearm must be recorded as an “acquisition” and a “disposition” in the permanent “bound book” record. If the firearm is returned to the person from whom it was received, an ATF Form 4473 is not required.
Q:Can an FFL have more than one A&D book?
A: Yes, an FFL can have more than one A&D book without first receiving a variance from ATF. It is advised that the A&D book is clearly marked to indicate the category of firearms included in the particular A&D book. (e.g., repairs, consignments, handguns, long guns). If an FFL would like to keep computerized records, a variance from ATF is required pursuant to 27 CFR § 478.22. FFLs should contact their local area office for instructions on how to request a variance.
Q:Are tribal police located on Indian reservations considered a department or agency of any state, the United States, or political subdivision and therefore exempt from the provisions of the Gun Control Act pursuant to 18 U.S.C. § 925(a)(1)?
A: Unless a member of a tribal police department has been cross-designated by the Bureau of Indian Affairs as a law enforcement officer, the exemption found at 18 U.S.C. § 925(a)(1) does not apply. Therefore, if a cross-designation has not been granted, the tribal police department may not receive firearms in interstate commerce nor may they possess post-1986 machine guns.
Example: The tribal police department located in State A orders firearms from an FFL in State B. The tribal police have not been cross-designated by the Bureau of Indian Affairs. The FFL in State B cannot ship the firearms directly to the tribal police department in State A. Instead, the firearms must be sent to an FFL in State A for transfer to the tribal police department. The tribal police must complete an ATF Form 4473, and a NICS check must be conducted. Additionally, if appropriate, a multiple sales form must be completed.
Q:Can a non-licensee transfer a handgun to a juvenile for use at a shooting range?
A: It shall be unlawful for a person to sell, deliver, or otherwise transfer to a person who the transferor knows or has reasonable cause to believe is a juvenile any handgun or ammunition for a handgun. A juvenile is defined as someone less than 18 years of age. However, this subsection does not apply to the temporary transfer, possession, and use of a handgun or ammunition to a juvenile for target practice or hunting. The juvenile must first have prior written consent from a non-prohibited parent or guardian, which must be in their possession at all times while in possession of the handgun. During transportation by the juvenile, the handgun must be unloaded and locked in a container. 18 U.S.C. § 922(x)(3)
Q:May an FFL transfer a handgun and/or ammunition to a juvenile for use at an on-premises shooting range?
A: ATF has ruled that the rental of firearms for use on their business premises is not considered to be a “delivery or sale” of the firearms. Thus, it is not subject to the age restrictions of the Gun Control Act. The same reasoning is also applied to ammunition to be expended on the licensed premises in connection with the rented firearm. In this instance, prior written consent from a non-prohibited parent or guardian is not required.
Q:May an FFL transfer a handgun and/or ammunition to a juvenile for use at an off-premises shooting range?
A: A licensee may lend or rent a firearm to any person for temporary use off the premises of the licensee for lawful sporting purposes, provided that: 1) the delivery of the handgun and/or ammunition is not to someone under the age of 21 years; and 2) if a rifle or shotgun or ammunition for either is not less than 18 years of age. 18 U.S.C. § 922(b)(1); 27 CFR §478.99(b)
Q:What must an FFL do when he/she receives a firearm for storage?
A: If an FFL has dominion and control over the storage locker, whether by key, lock combination, or some other means, the FFL must treat the firearm as an acquisition. Therefore, the firearm will be entered into the A&D book as an acquisition. When the firearm is being permanently removed from storage, the FFL will then log the firearm out as a disposition. At that time, an ATF Form 4473 and a NICS check must be completed. If the FFL has no dominion and control over the storage locker, then the FFL does not have to enter the firearm into his or her A&D book nor does the ATF Form 4473 need to be completed.
Q:Is an FFL in violation of the Gun Free School Zone Act if their business premise is located near a school?
A: Generally, it is unlawful for any individual to knowingly possess a firearm within a school zone. A school zone is defined as being within a distance of 1,000 feet from the grounds of a public, parochial, or private school. This prohibition does not apply to the possession of a firearm on private property not part of school grounds, such as an FFL’s business premise (e.g., commercial storefront, residence, or driveway).
Once a customer leaves private property located within 1,000 feet of a school with a firearm, they may be in violation of Federal law. However, in the following situations an individual would not be possessing a firearm in violation of 922(q)(A):
- The individual is licensed by the State or political subdivision to possess the firearm, and the license was issued after law enforcement officials verified that the individual is qualified to receive the license;
- The firearm is unloaded and is contained within a locked container or a locked firearms rack that is on a motor vehicle;
- The firearm is possessed by an individual for use in a school-approved program;
- The individual or his/her employer is doing so in accordance with a contract entered into between the individual and the school;
- The individual is a law enforcement officer acting in their official capacity; or
- The individual is crossing school grounds to reach a public or private way. Their firearm is unloaded, and they have permission from the school.
ATF realizes that not all persons who enter or exit an FFL’s premises in such case may fall under one of the above-described statutory exemptions. Therefore, ATF advises that in those states where a permit is not needed, the FFL should ensure that a purchaser’s firearm is unloaded and placed in a locked container prior to leaving the business premise. 18 U.S.C. § 922(q)(B)
Vertical Front Grip on Handgun Changes Status
Though accessory vertical fore grips for handguns are often advertised for sale in firearms publications, installation of such a grip changes the classification of the arm to an “Any Other Weapon” (AOW) under federal law, requiring registration.
The term “handgun’ is defined under federal law to mean, in part, a firearm which has a short stock and is designed to be held and fired by the use of a single hand. Gun Control Act of 1968, 18 U.S.C. section 921(a)(29).
Under an implementing regulation of the National Firearms Act (NFA), 27 C.F.R. section 479.11, “pistol” is defined as 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).
The NFA further defines the term “any other weapon” (AOW) as any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapon with combination shotgun and rifle barrels 12-inches or more, less than 18-inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include ay such weapon which may be readily restored to fire. Such term shall not include a pistol or revolver having a rifled bore, or rifle bores, or weapons designed, made or intended to be fired from the shoulder and not capable of firing fixed ammunition. 26 U.S.C. section 5845(e).
ATF has long held that by installing a vertical fore grip on a handgun, the handgun is no longer designed to be held and fired by the use of a single hand. Therefore, the installation of a vertical fore grip on a handgun is the “making” of a firearm requiring registration with ATF’s NFA Branch.
Making an unregistered AOW is punishable by fine and 10-years’ imprisonment. Additionally, possession of an unregistered AOW is also punishable by fine and 10-years’ imprisonment.
Adding a Fore Grip Lawfully
To lawfully add a vertical fore grip to a handgun, a person must make an appropriate application on ATF Form 1, “Application to Make and Register a Firearm.” The applicant must submit the completed form, along with a fingerprint card bearing the applicant’s fingerprints; a photograph; and $200. The application will be reviewed by the NFA Branch. If the applicant is not prohibited from possessing a firearm under federal, state, or local law, and possession of an AOW is not prohibited in the applicant’s state of residence, the form will be approved. Only then may the person add a vertical fore grip to the designated handgun.
A person may also send the handgun to one licensed to manufacture NFA weapons. The manufacturer will install the fore grip on the firearm and register the firearm on an ATF Form 2. The manufacturer can then transfer the firearm back to the individual on an ATF Form 4, which results in a $5 transfer tax. If the manufacturer is in a different state from the buyer, the NFA Branch will also need a clarification letter submitted with the ATF Form 4 so that the NFA Branch Examiner will know the circumstances of the transfer.
Police Officer Status No Defense in Illegal MG Case
A federal judge recently denied a motion by attorneys for accused Missouri State Trooper James Vest to throw out charges that he illegally possessed a fully automatic weapon.
The defendant’s attorney argued that the officer could possess the gun, because he would supposedly only use it to fight crime. But the judge decided that defense wasn’t good enough. Vest was suspended with pay from the State Police headquarters in Collinsville, where he served as a weapons instructor.
In a 23-page decision, U.S. District Court Judge David Herndon rejected defense arguments that prosecutors must state in a new indictment that Vest illegally possessed the firearm as a private citizen.
Herndon rejected the argument that any police officer who uses an automatic weapon for his job has a right to do so and is not violating federal statutes against so-called “machine guns.”
Herndon wrote, “The defendant (through his attorney) suggested at one point that all police officers must be authorized to possess machine guns or how else could they (legally) possess them for the purpose of arresting the true civilian criminal who is breaking the law?”
But the judge asked the following in reply: “That leads the Court to ask how does an officer possess crack cocaine when he arrests a drug dealer? How does a courtroom deputy clerk handle the same crack when it is admitted into evidence…?”
The author publishes two of the small arms industry’s most widely read trade newsletters. The International Firearms Trade covers the world firearms scene, and The New Firearms Business covers the domestic market. He also offers FFL-mailing lists to firms interested in direct marketing efforts to the industry. He may be reached at: FirearmsB@aol.com.
|This article first appeared in Small Arms Review V10N2 (November 2006)