Introduction
The National Firearms Act was enacted in 1934 and mandates the registration of certain firearms, firearms accessories, and destructive devices. While originally enacted as a response to well-armed violent criminals and their well-publicized crimes, the NFA may have outlived its usefulness when you consider changes in current firearm design and the amount of crime associated with NFA weapons. I propose changes could be made that lift onerous registration and tax stamps while still providing a modicum of control for fully automatic weapons.
During the 20’s and 30’s the criminal exploits of characters like John Dillinger, Machine Gun Kelly, and Bonnie and Clyde along with the underworld activities of organized crime syndicates thrilled newspaper audiences. Despite these crimes being atypical of violent crime in general, politicians, fueled by media reports of heavily armed criminals wreaking havoc throughout the country thought they found a solution to a perceived wave of violent crime in the NFA.
When bank robbers and other violent armed criminals utilized high powered but shortened weapons like “sawed off” short barreled rifles (SBRs) and short barreled shotguns (SBSs), their concealability and more powerful rounds gave them an advantage over local citizens and police who would typically only be armed with pistols or revolvers. Fully automatic weapons (FAWs) prior to the NFA were available to anyone, citizens and law enforcement alike. However, the typical police officer wouldn’t have such a weapon easily accessible while walking a beat and would again be at a disadvantage facing a determined villain with a full auto weapon. Silencers as well were lumped into this criminal milieu as being associated with hitmen and assassinations. The argument for the NFA was to limit making high-powered weapons like rifles and shotguns concealable (and thus more likely to be used in crime). While these weapons, along with full auto weapons and silencers, could be possessed they required registration with the government and a $200 tax stamp. This was a substantial sum at the time. It was the equivalent to the retail cost of a Thompson submachine gun and $200 dollars far exceeded the costs of rifles and shotguns that might fall under the purview of the NFA. The amount of the tax hasn’t changed, but at $200 per registration as well as the Occupational Tax collected from dealers, for FY 2018 this revenue amounts to $6.7 million collected from dealers and $33.3 million collected from new individual registrations and transfers. The NFA made possession of unregistered, untaxed SBSs, SBRs, FAWs.(along with some firearms designated as Any Other Weapons, destructive devices like anti-tank weapons, mortars, and grenades, and silencers) a violation of federal law. Criminal sanctions for a violation include up to 10 years in prison and fines ranging between $10,000 and $250,00 for an individual and up to $500,000 for an organization as well as forfeiture of the weapon and the vehicle it was conveyed or concealed in.
Argument against retaining the NFA as it stands
Current firearms designs render the NFA dimensional standards moot. A number of weapons meet the letter of the law as it applies but not the spirit or intent in limiting concealable high power weapons. Gun rights advocates, who often bash the ATF (though based on some of ATF’s past behavior, there is some justification) really have their administrative rulings on weapons and weapon accessories to thank for easy accessibility to short barreled shotguns and what are essentially short barreled rifles.
For a shotgun to be considered an NFA weapon it’s first important to understand that the ATF defines a shotgun as being designed to be fired from the shoulder, meaning it is designed with a stock. The NFA defines a short barreled shotgun as having a barrel under 18 inches or having an overall length of less than 26 inches. What this means for the gun owner is that if they cut the barrel under its legal length or if the stock is cut down rendering the shotgun under the legal length, they have made, and now possess, an unregistered NFA weapon in violation of the law. Gun owners are free to modify a shotgun to an SBS, as well as purchase a shotgun already configured as an SBS, as long as they register the weapon and pay the tax. However the devil is in the details and both Remington and Mossberg have found ways to make short shotgun weapons that the average person would consider a “sawed off shotgun” which follow the letter of the law and avoid being classified as an SBS.
For example, Mossberg took its classic Model 500, a conventional pump shotgun, and installed a 14″ barrel and replaced the shoulder stock with a “bird’s head” pistol grip that maintained a total length of just a fraction over 26 inches, calling it the Shockwave. Mossberg, as a manufacturer, designed the gun this way, however if an average citizen took a conventional Model 500, cut down or replaced the barrel and replaced the stock with a similar pistol grip they have violated the law. Because the conventional Model 500 was designed with, and as purchased had, a shoulder stock, it is a shotgun and must have a barrel exceeding 18 inches and be over 26″ long. Because Mossberg designed the Shockwave without a shoulder stock, it is not a shotgun, it is merely a pistol grip firearm and not subject to barrel length restrictions. Shotshell firing weapons can also fall into the Any Other Weapon (AOW) category if designed as a smoothbore handgun or dual barrel centerfire cartridge and shotshell weapon with a barrel greater than 12 inches but less than 18 inches, and measuring less than 26 inches overall.
These dimensional intricacies, and some would say hypocrisies, can be best illustrated with a meme photo that accurately depicts the slight variations in design of Mossberg 500 shotguns that define an NFA weapon.
If concealability of a high powered weapon is a major concern, the above example illustrates that while their NFA status differs, their concealability is essentially the same. In fact, the longest weapon depicted is the one designated as an SBS and subject to the NFA which was supposed to deter ownership of short shotguns.
In regards to short barreled rifles, the ATF description of a rifle includes a stock and a barrel over 16 inches long, with an overall length, with stock extended, of 26 inches or more. The popularity of the AR and AK rifle platforms have given rise to large, rifle caliber, AR and AK pistols, essentially the rifle version with 9 to 12 inch barrels with no stock. Because these platforms were never designed to function as pistols, they are heavy and ungainly and aftermarket manufacturers have responded by producing arm braces. They are securely affixed to the rear of the firearm in place of the stock and are strapped around the forearm to provide added support in wielding the pistol. In an issue that was eventually addressed by an ATF ruling, there was a question of whether using the arm brace as a shoulder stock was a violation of the SBR definition in the NFA. Again the ATF came down on the side of gun advocates by ruling that merely using a device designed as an arm brace as a stock, didn’t equate to it being a stock, and thus was not a law violation. But as evidenced by the design of these braces, they resemble stocks, albeit uncomfortable ones, and will effectively function as one.
This essentially provides the gun owner with accessibility to a concealable high powered weapon that functions as an SBR without having to go through a registration and tax process. Other than an issue of refined design to enhance ergonomics and comfort, there is essentially no difference between a rifle caliber pistol with an arm brace and an SBR.
Suppressors or silencers, through TV and movie depictions, have typically been associated with spies and assassins. However, what is typically not depicted is suppressor use as a safety device designed to limit the potential for hearing damage as well as noise pollution. That potential, along with the tacti-cool aspect for recreational shooting has prompted pistol manufacturers to increasingly offer threaded barrels either as a standard feature or option. Silencer manufacturers and their products were relatively sparse twenty years ago but that has changed with aftermarket competition in the field lowering prices and some firearm manufacturers are designing and producing integrally suppressed firearms. No longer an oddity with questionable legitimate purposes, the suppressor has become a common firearm accessory enjoyed by both recreational shooters and hunters.
The Hughes Amendment to the Firearms Owner Protection Act of 1986, while allowing the possession or transfer of FAWs legally registered prior to May 1986, banned the possession and/or transfer of FAWs manufactured after this date for citizens, leaving an exception for the military and law enforcement. Parts designated by the ATF like fire control groups, receivers, and bolts could also be classified as machine guns as well as items like trigger actuators because they are integral to the function of, or mimic, a machine gun. However the ATF again came down on the side of gun rights advocates in determining the legality of bump stocks. It was only after public outcry following the mass shooting in Las Vegas and presidential prompting that got the ATF to change its determination that the stock itself constitutes a machine gun.
The limited number of weapons that meet that prior date criteria has raised their prices to many thousands of dollars. The high cost of weapons, their limited availability and the necessity of registration have essentially removed these items from illegally trafficking and criminal use. As gun violence and mass shootings are popular cable news fodder, any recent criminal full auto weapon use would have surely generated notable news coverage. Based on media reports there seems to be little evidence of the use of FAWs in criminal activity. However, there will still be cases of gun owners illegally converting semiauto weapons to full auto capabilities (by virtue of not registering the weapon). While criminality may be primarily limited to a lack of registration, continued registration for FAWs (as well as Destructive Devices, like cannons, mortars, grenades, and missiles) may be warranted. There is a recognizable increase in potential lethality with a FAW, and in reality these weapons’ usefulness are limited to combat, criminal activity, and a fun way to expend ammunition. Thus, a law-abiding individual’s capacity to have fun firing off hundreds of rounds of ammunition is not infringed by having to register the weapon because of its potential criminal use and trafficking potential. However, the required $200 tax stamp could be argued as unnecessary. It was not a tax borne out of necessity but as the ATF states, it was meant to impose a burden and act as a deterrent.
Criminality and the NFA
The issue of criminal use of NFA weapons is hard to determine. We know that street gangs, organized crime, and biker gangs have access to NFA weapons as evidenced by raids and arrests but outside of SBSs and SBRs which can be simply produced, the source of FAWs likely stems from military equipment thefts. The ATF doesn’t compile any readily available data on the use of either unregistered or registered NFA weapons in crime incidents. In opposition to the ATF’s 2013 Notice of Proposed Rulemaking (NPR) change regarding trusts and NFA weapons, the Firearm Industry Consulting Group noted that the ATF “failed to identify a single example where a prohibited person gained actual possession of a NFA firearm by virtue of his relationship to a legal entity, let alone where a person gained possession of a NFA firearm due to his relationship to a legal entity and then used that firearm in the commission of any crime”. Additionally, in response to a FOIA request, the ATF failed to produce any document that showed a single instance where a registered NFA weapon was used in the commission of a crime. An internet search revealed little in the way of data other than historical media accounts like the 1997 North Hollywood bank robbery or the assassination of radio personality Alan Berg by white supremacists where the perpetrators used illegally converted semi auto weapons. NFA weapons haven’t been specifically implicated in mass shooting events and according to the website Statistica, in the past 38 years, pistols have been the predominant weapon in mass shootings and the use of shotguns and rifles (despite the concern over modern sporting rifles, aka “assault rifles”) account for only 26 and 47 incidents respectively.
Criminality associated with NFA weapons is seemingly more focused on the possession of unregistered weapons. However, the determination of whether a weapon was registered can be problematic and result in wasted efforts with investigations and the prosecution of innocent individuals. The NFRTR is fraught with problems that stem back decades. Congressional testimony, internal ATF audits, and Inspector General audits demonstrated that ATF employees have destroyed registration records because they didn’t want to process them, there were major discrepancies when old data was compiled into a new data base following the move from the Treasury Department to the Department of Justice, the software used for the query system of the NFRTR was substandard, and the employees using the system were poorly trained on its data entry and proper use resulting in imputation errors. This has resulted in numerous instances of ATF agents starting investigations and forwarding charges against individuals because the ATF couldn’t find registration documentation, NFA weapons still being registered to deceased individuals, and dealers facing fines because their inventory doesn’t match the faulty ATF database. It can be contended that with the NFRTR being so inaccurate, with estimates of errors in the database ranging historically from 4 to 40%, that it is unsuitable to be used as a standard of proof to convict individuals of unlawful possession.
The ATF acknowledges the intent of Congress in utilizing registration, a substantial tax, and severe penalties was to deter the private ownership of these weapons. However while deterrence was its intended effect, the level of deterrence to possession is hard to gauge by the numbers. As of May 2019, the National Firearms Registration and Transfer Record (NFRTR) showed that in the U.S. and it’s territories there were:
- 62,162 AOWs
- 155,021 SBSs
- 413,167 SBRs
- 699,977 FAWs
- 1,750,233 Silencers
- 2,997,630 Destructive Devices
Just in 2018, there were 21,580 applications to make an NFA weapon and 128,324 individual transfer applications. As well for 2018, there was a total of 339,278 of all registration and transfer applications, with a total number of weapon registrations at over 1.4 million.
Despite a lack of a deterrent effect on possessing these weapons and silencers, there seems to be little indication, especially with FAWs, that these weapons are inordinately used in criminal activity. This ineffectiveness of the NFA does present an opportunity for both proponents and opponents of gun rights to amend it.
Changes to the NFA
Gun rights opponents could suggest that the wording and definitions of the NFA don’t address current firearm design changes that allow for the possession of concealable high powered firearms that the NFA was designed to deter. To address this, gun rights opponents could suggest the following changes:
- The definition of a shotgun be changed to any firearm or weapon that fires a shotshell, and that a shotgun must have at minimum a 40″ overall length and have at a minimum a 22″ barrel. This would limit the availability of short length shotguns like the Mossberg Shockwave by placing them into the NFA category and keeping conventional shotguns at a length that can still accommodate smaller shooters but limit the weapon’s concealability.
- The definition of a pistol be changed to bar any device that can be affixed to the rear of the pistol that is intended to support the firearm. Attaching such a device, either a stock or arm brace transforms the pistol into a rifle, subject to the ATF’s definition of a rifle and SBR.
- The definition of a rifle be changed to define a rifle as having at a minimum a 16″ barrel and a minimum overall length of 36″. This will encompass conventional .22 rifles and centerfire carbines and lever actions which tend to be shorter firearms. AR and AK style pistols would become rifles if a brace or stock is attached and if they did not meet the minimum rifle dimensions, they would become NFA weapons.
- An amendment to the NFA can be introduced that would no longer allow the transfer of FAWs and Destructive Devices between individuals (however, this will still be allowable under a trust). After the possessor’s demise, the weapon is turned in for destruction.
- Increase the tax on NFA weapons and silencers to something more in keeping with the current economy. $200 in 1934 was a substantial amount, meeting and often exceeding the cost of the weapon itself which could have acted as a deterrent. Increasing the current tax burden could also act as a deterrent, for example, making the tax equivalent to the price or value of the weapon. This could range from 400 dollars for an SBR or SBS to tens of thousands of dollars for a FAW.
Alternatively, and more in keeping with constitutional freedom, the NFA could be highly modified to align it with current firearm design and shooting sports interest. As previously mentioned the design of short length shotguns, rifle caliber pistols and the popularity of threaded barrels and silencers suggest that the law is out of step with gun owners and the gun industry. The chart below, from the ATF’s 2019 Firearms Commerce in the United States report, indicates the spike in interest in NFA items over the past 15 years.
The NFA could be amended in a number of ways:
- Eliminate the SBR and SBS categories. As I noted above, current firearm designs make NFA dimensional parameters, which were designed to deter concealability, moot. The removal of these weapons classification from the NFA will essentially have no effect on possession of high powered, concealable firearms as these weapons already exist,, are plentiful and available to the general public in the form of rifle caliber pistols utilizing braces, and weapons like the Mossberg Shockwave. We already know that criminals are not deterred from converting conventional weapons into unregistered NFA items, and so the only deterrent effect is generated on the law abiding public who must go through the arguably infringing process of registration over what is simply a rifle or shotgun, be charged $200 to possess it, and then potentially face prison time, fines, and weapon forfeiture because the ATF poorly maintains the records that demonstrate your legal possession.
- Eliminate the silencer category from the NFA but require a background check on Form 4417. While there are benefits for both hunters and recreational shooters in the use of silencer/suppressors, much of the public may still associate them with criminal activity. It is true that there is a potential that a suppressor may be used in a crime and in order to address its possible criminal use or prohibited person’s possession, just as is done with all firearms, a purchase could require a background check utilizing the standard Form 4417 that is used in all firearm transfers. There would be no registration fee or tax associated with a suppressor purchase, only what is required with any other firearm purchase.
- Eliminate the Any Other Weapon category. Many of these weapons are in actuality historical oddities, novelties and antiques that while they can be defined as AOWs do not require registration. Dual barrel survival rifles, and pen and umbrella guns would be unlikely to be used in criminal activity and more likely in self defense if at all. This change would also address inconsistencies with the designation of short barreled shotguns as demonstrated above as well as inconsistencies in shotgun pistol design. The Taurus Judge is designed to fire both .45 long colt rounds as well as .410 shotshells in a conventional double action revolver but despite being a pistol that fires a shotshell it is not defined as an AOW because it has a small amount of rifling at the end of the barrel. However, in practical terms, there is virtually no difference in shotshell lethality by virtue of this small amount of rifling versus a smoothbore. Any larger gauge pistol (since a 12 gauge larger than .5″ bore is not considered a destructive device because of its sporting purpose) could thus be considered as simply a pistol and not an AOW.
- Retain registration for full auto weapons with a nominal fee but discontinue the tax stamp. The NFA as a law written to deter ownership of firearms, was in its original iteration, meant to require the registration of ALL firearms but this view was walked back as likely facing constitutional grounds challenges. But the law, as it stands, was clearly designed, and its purpose stated as such, as a deterrent to owning certain kinds of firearms. However, the government should not be trying to deter, i.e. infringe, on the exercise of a constitutional right without a compelling interest. The evident lack of the criminal use of FAWs does not support that compelling interest. However, the potential lethality and potential criminal use and trafficking potential justifies continued registration. What is not justified is the $200 tax imposed simply for registering or transferring a weapon. The ATF has used the protected tax status of NFRTR information to impede criminal defense investigations by refusing to release exculpatory evidence that would establish legal possession or information that would demonstrate the inaccuracies inherent in the NFRTR. Rather than a tax, a nominal registration fee should be imposed that is earmarked specifically to fund audits and improvements in the NFRTR, which includes software redesign, proper training for end users, and error reconciliation.
These changes to the NFA will likely have little effect on the possession of NFA style weapons or crimes committed with them, will eliminate the imposition of unjustified burdens on law abiding gun owners, spur gun industry growth, and still maintain some degree of control over full auto weapons. In addition, supporting the maintenance of the NFRTR through registration fees will help ensure the accuracy of the database as it is the only standard of proof in determining lawful possession of NFA weapons. Improving the accuracy of the data will not only save on ATF investigative and administrative time and costs, but also help reduce unwarranted prosecutions on weapon owners and dealers who face sever penalties and fines over what is essentially a paperwork error on the part of the ATF.
