National Firearms Act of 1934

The National Firearms Act of 1934 (NFA) requires the registration, with the federal government, of fully-automatic firearms (termed “machineguns”), rifles and shotguns that have an overall length under 26 inches, rifles with a barrel under 16 inches, shotguns with a barrel under 18 inches, and firearm sound suppressors (termed “silencers”). The Gun Control Act of 1968 (GCA) placed “destructive devices” (primarily explosives and the like, but also including firearms over .50 caliber, other than most shotguns) under the provisions of the NFA. In 1994, the Treasury Department placed revolving-cylinder shotguns and one semi-automatic shotgun under the NFA. The GCA prohibited the importation of fully-automatic firearms for private purposes and a 1986 amendment to the Act prohibited the domestic manufacture of fully-automatics for private purposes. However, short-barrelled rifles and shotguns have becoming increasingly popular for home defense and defensive-skills-based marksmanship training and competitions, and sound suppressors have become increasingly popular for marksmanship training and competitions, and for hunting.

The NFA was originally enacted in 1934. Similar to the current NFA, the original Act imposed a tax on the making and transfer of firearms defined by the Act, as well as a special (occupational) tax on persons and entities engaged in the business of importing, manufacturing, and dealing in NFA firearms. The law also required the registration of all NFA firearms with the Secretary of the Treasury. Firearms subject to the 1934 Act included shotguns and rifles having barrels less than 18 inches in length, certain firearms described as “any other weapons,” machineguns, and firearm mufflers and silencers. While the NFA was enacted by Congress as an exercise of its authority to tax, the NFA had an underlying purpose unrelated to revenue collection. As the legislative history of the law discloses, its underlying purpose was to curtail, if not prohibit, transactions in NFA firearms. Congress found these firearms to pose a significant crime problem because of their frequent use in crime, particularly the gangland crimes of that era such as the St. Valentine’s Day Massacre. The $200 making and transfer taxes on most NFA firearms were considered quite severe and adequate to carry out Congress’ purpose to discourage or eliminate transactions in these firearms. The $200 tax has not changed since 1934.

As structured in 1934, the NFA imposed a duty on persons transferring NFA firearms, as well as mere possessors of unregistered firearms, to register them with the Secretary of the Treasury. If the possessor of an unregistered firearm applied to register the firearm as required by the NFA, the Treasury Department could supply information to State authorities about the registrant’s possession of the firearm. State authorities could then use the information to prosecute the person whose possession violated State laws. For these reasons, the Supreme Court in 1968 held in the Haynes case that a person prosecuted for possessing an unregistered NFA firearm had a valid defense to the prosecution the registration requirement imposed on the possessor of an unregistered firearm violated the possessor’s privilege from self-incrimination under the Fifth Amendment of the Constitution.

Key Federal Acts Regulating Firearms

The National Firearms Act (“NFA”) was enacted in 1934 as part of the Internal Revenue Code. It was the first federal regulation of the manufacture and transfer of firearms. An exercise of the taxing power, the NFA levied a federal tax on the manufacture, sale and transfer of certain classes of firearms. The NFA has been amended and revised by subsequent federal firearms acts (see other Acts described on this page). Currently the National Firearms Act imposes an excise tax and registration requirements on narrow categories of firearms, including machine guns, short-barrelled shotguns or rifles, and silencers. The NFA also includes, in a category defined as “any other weapon,” certain smooth-bore handguns. The vast majority of handguns are excluded. The current provisions of the NFA are codified at 26 U.S.C. § 5801 et seq. Additional details about the NFA may be found in Federal Law on Registration of Firearms.

The Federal Firearms Act

The Federal Firearms Act of 1938 (“FFA”) imposed a federal license requirement on gun manufacturers, importers, and those persons in the business of selling firearms. The term federal firearms licensee (“FFL”) is commonly used today to refer to the members of the gun industry on whom this license requirement is imposed. In addition to the licensing component of the FFA, the Act required licensees to maintain customer records and made illegal the transfer of firearms to certain classes of persons, such as convicted felons. These classes of persons are commonly referred to as “prohibited purchasers.” The circumstances resulting in the prohibition (such as a felony conviction) are often referred to as “disabilities.” The FFA was repealed by the Gun Control Act of 1968. However, many of its provisions were re-enacted as part of the subsequent act.

The Gun Control Act

The Gun Control Act of 1968 (“GCA”) revised the NFA and the FFA, re-enacting and expanding upon provisions of the prior acts, and repealing the FFA. The GCA also enacted prohibitions on the importation of firearms “with no sporting purpose.” However, neither the GCA nor any other federal law regulates the domestic manufacture or sale of firearms which would not pass the federal criteria for determining whether a firearm has “a sporting purpose.” Among the other major provisions of the GCA were the establishment of minimum ages for firearms purchasers, the requirement that all firearms (domestic and imported) be affixed with a serial number, and the expansion of the categories of prohibited persons. The GCA is codified at 18 U.S.C. § 921 et seq. and the provisions of the FFA as re-enacted by the GCA are also found in these sections. Additional details about the GCA may be found in the posts discussing federal law on Ammunition Regulation, Background Checks, Prohibited Purchasers Generally, and Dealer Regulations.

The Firearms Owners’ Protection Act

The Firearms Owners’ Protection Act of 1986 (“FOPA”), also known as the McClure-Volkmer Act, significantly amended the GCA and effectively liberalized many of the restrictions on sellers of firearms. Among other things, the FOPA enacted provisions that legalized sales by licensed dealers away from the location shown on the dealer license if at a “gun show” within the same state; limited the number of inspections of dealers’ premises which could be conducted by the Bureau of Alcohol, Tobacco and Firearms (“ATF”) without a search warrant; prevented the federal government from maintaining a central database of firearms dealer records; and loosened the requirement for what constitutes “engaging in the business” of firearms sales for purposes of a federal license. The FOPA also repealed several key public safety provisions originally enacted by the GCA, eliminating the requirements that dealers keep sales records of ammunition transfers (except armor-piercing ammunition transfers) and that sellers of ammunition be licensed, and lifting the ban on interstate transfers of ammunition to unlicensed purchasers. Additional details about the FOPA may be found in Federal Law on Ammunition Regulation and Federal Law on Private Sales.

The Brady Act

The Brady Handgun Violence Prevention Act of 1993 (“Brady Act”) effected amendments to the GCA, originally imposing a five-day waiting period for law enforcement to review the background of a prospective handgun purchaser before a licensed dealer was entitled to complete the sale of a handgun to that person. The purpose of the check is to allow law enforcement to confirm that the prospective buyer is not a prohibited purchaser before the sale is consummated. The five-day waiting period has now been replaced with an instant check system, which can be extended to three days when the results of the check are not clear. Persons who have a federal firearms license or a state-issued permit to possess or acquire a firearm (such as a state-issued concealed carry permit that is valid for not more than five years) are not subject to the waiting period requirement. As more states enact “shall issue” concealed carry permit laws, this category of persons exempt from the Brady Act increases. In 1998, the Act became applicable to shotguns and rifles. The Brady Act is codified at 18 U.S.C. § 921 et seq. Additional details about the Brady Act may be found in the posts discussing federal law on Background Checks, Prohibited Purchasers Generally and Dealer Regulations.

The Federal Assault Weapons Ban

The Federal Assault Weapons Ban, or Public Safety and Recreational Firearms Use Protection Act (Title XI, Subtitle A of the Violent Crime Control and Law Enforcement Act of 1994) (“AWB”) was a subtitle of the Violent Crime Control and Law Enforcement Act of 1994, enacted on September 13, 1994. Formerly codified at 18 U.S.C. § 921 et seq., the AWB prohibited:

• the manufacture, transfer and possession of semi-automatic assault weapons; and
• the transfer and possession of large capacity ammunition feeding devices (i.e., devices capable of holding more than 10 rounds of ammunition).
The law banned 19 types, models and series of assault weapons by name (and copies or duplicates of those weapons), and any semi-automatic firearm with at least two specified military features coupled with the ability to accept a detachable magazine (this last criterion did not apply to shotguns). The law only banned the transfer and possession of assault weapons and large capacity feeding devices manufactured after the date of the ban’s enactment. The AWB contained a sunset provision declaring that it would expire ten years from enactment. Congress allowed the ban to expire on September 13, 2004.

The Protection of Lawful Commerce in Arms Act and Child Safety Lock Act
The Protection of Lawful Commerce in Arms Act and Child Safety Lock Act of 2005 (“PLCAA” and “CSLA”) provided the gun industry with immunity from most tort liability. The PLCAA prohibited a “qualified civil liability action” from being brought in any state or federal court and required immediate dismissal of any such action upon the date the PLCAA was enacted (October 26, 2005). A “qualified civil liability action” is a civil or administrative action or proceeding brought against a manufacturer or seller of firearms or ammunition, or a trade association that has two or more members who are manufacturers or sellers of firearms or ammunition for relief, if the action resulted from the criminal or unlawful misuse of a qualified product by the person or a third party, with certain exceptions. “Unlawful misuse” is defined as conduct that violates a statute, ordinance or regulation. Actions excluded from the definition of “qualified civil liability action” include those:

• Against a transferor convicted of knowingly transferring a firearm with the knowledge that it will be used to commit a crime of violence (so long as the action is brought by the person harmed by the transfer);

• Against a transferor for negligence per se or negligent entrustment (the latter is defined in the Act to mean supplying a firearm or ammunition to a person the seller knows or reasonably should know is likely to, and does, use the firearm or ammunition in a manner involving unreasonable risk of physical injury);

• Against a manufacturer or seller who knowingly violated a state or federal law applicable to the sale or marketing of firearms or ammunition if the violation of law was the proximate cause of the harm for which relief is sought;

• For breach of contract or warranty in connection with the purchase of the firearm or ammunition;

• For death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or

• Commenced by the Attorney General to enforce certain federal firearms laws.

National Instant Criminal Background Check System Improvement Amendments Act

The National Instant Criminal Background Check System (“NICS”) Improvement Amendments Act of 2007 (“NICS Act”) provided financial incentives for states to provide to NICS (the database used to perform a background check when a firearm is purchased from a federally licensed dealer) information relevant to whether a person is prohibited from possessing firearms, including the names and other relevant identifying information of persons adjudicated as a mental defective or those committed to mental institutions. The NICS Act also changed the standard for persons deemed to be “adjudicated as a mental defective” or “committed to a mental institution” by a federal agency or department. The Act authorized the Attorney General to make grants to states for use in establishing and upgrading the states’ ability to report information, including mental health information, to NICS. In order to be eligible for the grants authorized by the NICS Act, a state must implement a “relief from disabilities” program that meets the Act’s requirements.

Gun Control That Actually Works

For more than 80 years, Utah has enforced a tough and effective gun control law that most Americans have never heard of. It’s a 1934 measure called the National Firearms Act, and it stands as a stark rebuke to the most sacred precepts of the gun lobby and provides a model we should build on. Leaders of the National Rifle Association rarely talk about the firearms act, and that’s probably because it imposes precisely the kinds of practical and constitutional limits on gun ownership, such as registration and background checks, that the N.R.A. regularly insists will lead to the demise of the Second Amendment. In speeches, publications and a steady stream of fund-raising literature, the N.R.A. rails against gun registration and gun owner databases. In 2008, the organization’s chief executive, Wayne LaPierre, claimed that photographing and fingerprinting gun owners was “the key gun control scheme” of the candidate Barack Obama, who, Mr. LaPierre predicted, would confiscate every gun in America before the end of his first term as president. The N.R.A. now says that the “real goal” of “gun control supporters” like Hillary Clinton is “gun confiscation.” But the longstanding National Firearms Act not only already mandated the registration of all owners of machine guns, short-barrelled rifles, silencers and other weapons deemed highly dangerous at the time, it created a national database of those gun owners with their mug shots and fingerprints, and a detailed description of each weapon purchased, including its serial number. Purchasers of “N.F.A. weapons,” as they are known, must pass an F.B.I. background check, be approved by the Bureau of Alcohol Tobacco and Firearms and pay a $200 tax. Stolen weapons must be reported to the A.T.F. immediately the sort of requirement the N.R.A. opposes for other gun thefts. The National Firearms Act includes much of what the N.R.A. fights against, but the lobbying group hasn’t directly challenged it. That may be because the firearms database, which includes weapons owned by both private citizens and law enforcement agencies, accounts for only a small percentage of the 300 million firearms estimated to be in private hands. Perhaps it should fight against it, though, because the 1934 law makes a good case against the N.R.A. The more than four million weapons inventoried including machine guns, missiles, hand grenades and mortars are the best example we have of gun control that works. The N.F.A. was designed to control what today’s Justice Department calls “dangerous weapons that empower a single individual to take many lives in a single incident.” Millions of firearms now in private hands, including assault rifles designed for use by the military, are just as lethal as weapons covered by the N.F.A. They should be brought under the act.

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