WASHINGTON — On Friday, October 9, the ATF released long-awaited guidance on open questions as to how it would interpret and enforce the landmark August Texas district court decision invalidating portions of the National Firearms Act (NFA).
The August 5 decision by the Texas court found that the regulatory provisions of the NFA as they relate to untaxed firearms can no longer be upheld due to the end of the $200 excise tax. The court permanently enjoined the ATF from enforcing these provisions as they relate to short-barreled rifles, short-barreled shotguns, silencers, and “any other weapons” (concealable firearms other than pistols and revolvers).
Yet, because of the complicated nature of the injunction and how it applied to various parties, as well as many technical enforcement issues, the court’s decision created more questions than answers for individuals, manufacturers, retailers, and FFLs. On August 28, ATF Director Robert Cekada promised that guidance was forthcoming, declaring, “Getting it RIGHT matters more than getting it out fast.”
Seeking to answer these questions, on October 9, the ATF issued a three-page open letter addressed to all federal firearms licensees and the public, along with a dedicated page to address frequently asked questions on background information related to the court decision.
The key takeaways from the guidance include the following, effective October 9:
- ATF will no longer require approval for making or transferring short-barreled rifles, short-barreled shotguns, silencers, and “any other weapon[s].”
- The above items no longer need to be registered.
- The ATF will administer the NFA on a voluntary basis.
- The Special Occupational Tax still applies to any person “engaged in the business” of manufacturing, importing, or dealing in NFA devices.
- The injunction does not remove NFA requirements for machineguns and destructive devices.
- As the court did not enjoin any part of the Gun Control Act, the formerly non-taxed NFA items are still considered “firearms” and may not be possessed by prohibited persons.
- Individuals transporting short-barreled rifles and short-barreled shotguns across state lines will still need to file Form 20s, even if not registered.
- The district court’s injunction does not invalidate state laws governing NFA firearms, many of which still prohibit ownership of NFA items.
- ATF will no longer enforce marking requirements on NFA firearms.
- Transfers of short-barreled rifles, short-barreled shotguns, silencers, and “any other weapon[s]” by FFLs still require a Form 4473 and a NICS background check under the Gun Control Act.
Significantly, the ATF noted that while the district court’s injunction applies only to the plaintiffs and those specified in the court order, and is not a universal injunction, the ATF would invoke its “enforcement discretion” even more broadly (emphasis ours):
…the Department will not enforce the NFA against any person as applied to the domestic manufacturing, possession, and transfer of short-barreled rifles, short-barreled shotguns, silencers, and ‘any other weapons’ (concealable firearms other than pistols and revolvers).
As we have noted, future administrations may simply reverse these policies, especially if they are hostile to Second Amendment liberties, a fact that even the ATF acknowledges under its FAQ section:
Material changes in legal or factual circumstances could cause NFA enforcement to resume. For example, Congress could impose a new tax on NFA firearms, the district court’s injunction could be dissolved or overturned, or the Department could rescind the enforcement guidelines.
The NFA treats unregistered firearms as contraband. Individuals who make, possess, transfer, or receive unregistered NFA firearms are subject to felony penalties and forfeitures. 26 U.S.C. Sections 5861, 5871, 5872; 49 U.S.C. Sections 80302, 80303.
