To be clear, this is not a “gun rights” vs. “gun control” article. However, the U.S. Supreme Court’s decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010) recognized the Second Amendment as an individual liberty, and incorporated that protection with respect to the states, alongside the First, Fourth, Fifth, Sixth and Eighth Amendments. Given that an estimated 300 million firearms are in the United States, the odds of an attorney encountering a firearm-related aspect or element of a case are not remote.
Because firearms arise in criminal and civil matters, understanding and being prepared to address these issues may benefit your client’s freedom, property, finances or other rights or protections arising under the law. In such cases, you may wish to consult with a “firearms attorney” – someone who understands and practices in the panoply of laws governing ownership and use of firearms. But what exactly do firearms attorneys do?
Firearms attorneys do a number of things. They might assist in completing the application process for a firearms license or National Firearms Act (NFA) firearm transfer, or may assist some clients in restoring their firearms rights after a criminal conviction. Some firearms attorneys concentrate in restoration of rights cases, expungement, or in some cases, handling or assisting in criminal cases to seek a disposition that does not permanently disqualify future firearms ownership. With many states introducing red-flag laws in an effort to curb suicide and domestic violence, firearms attorneys are also involved in red flag and restraining order hearings, if only to protect the financial stake the accused may have in firearms, if such a seizure order is warranted. In some states that utilize a “may-issue” firearms licensing scheme, where some political or judicial appointee, such as a police commissioner, judge, police chief or other similar person, controls who can receive a license to own or carry a firearm, firearms attorneys may help clients comply with those laws, such as articulating a need for a firearm if state law requires an applicant demonstrate a need or threat to their life or safety. Other attorneys may help applicants appeal the denial of a firearms license for abuse of discretion or an otherwise baseless denial of an application.
Firearms Law Sources
Generally speaking, firearms in the United States are regulated via concurrent federal and state law schemes. At the federal level, the Gun Control Act of 1968 and the National Firearms Act of 1934 are the primary statutes. Their implementing rules and regulations are found in the Code of Federal Regulations at Title 27, Parts 478 and 479. These requirements are binding both on individuals and businesses that may ship, transfer, receive, or possess firearms or ammunition. The Gun Control Act makes it unlawful for certain categories of person to ship, transport, receive or possess firearms or ammunition, and places regulatory restrictions or controls on the manufacture, transfer, sale, and possession of firearms or ammunition.
While the federal laws provide a baseline for gun control regulations (or permissibility) in the United States, every state has its own additional firearms laws, rules, and regulations. These vary broadly from state-to-state, and can affect things such as firearms access and licensing, firearms storage requirements, use of firearms for self-defense, use of firearms in sporting or hunting activities, use of firearms as collateral for loans, state regulation of firearms sellers and manufacturers, whether firearms may be carried openly or concealed and where they may be carried or prohibited, what types of firearms may be carried or kept, prohibited magazine sizes, the types of ammunition permissible for ownership or hunting, specific rules for the bequest or inheritance of firearms, consumer protection regulations for handguns, and what types of firearms (e.g., handguns, rifles or shotguns) may be imported into or sold within a state.
The difficulty for the attorney is to recognize that these regulations do not necessarily exist in one area of the state’s statutes; they are included within a state’s criminal statutes, statutes regarding the administration of estates, licensing statutes, consumer protection regulations or domestic violence protection laws. Therefore, understanding the federal regulations is not enough, and the attorney must consider the additional complexities presented when a “normal case” now involves “firearms.”
While no one finds regulatory vocabulary particularly interesting, it is useful to frame the following discussion, because the paramount question of advising a client on firearms law is ultimately whether a firearm is actually involved. Regardless of whether the context is a criminal matter where the use of a firearm is an aggravating factor, a question of a client’s compliance with firearms laws and rules, a client’s eligibility or ineligibility to possess firearms due to a prior criminal conviction, or whether personal property in a dissolution of marriage, administration of an estate or liquidation of business assets involves “firearms,” understanding what the federal regulations consider to be a firearm is a good place to start, particularly because many state laws reference or copy the federal standard.
Firearm. Any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; or any destructive device; but the term shall not include an antique firearm.
Firearm frame or receiver. That part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.
Firearm muffler or firearm silencer. Any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts….
Rifle. A weapon designed…and intended to be fired from the shoulder, and designed or redesigned and made or remade to use the energy of an explosive to fire only a single projectile through a rifled bore for each single pull of the trigger.
Shotgun. A weapon designed …and intended to be fired from the shoulder, and designed or redesigned and made or remade to use the energy of an explosive to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger.
Pistol. 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)
Firearms Law Deals with Firearms, so Identifying a Firearm is a Critical First Step
If your client presents an issue or fact pattern that ostensibly implicates a “firearm,” the first legal question to determine is whether the article at issue is, in fact, a firearm (or whether the applicable legal regulation applies to firearms). Although many people, attorneys, included can picture a “firearm” or “gun” in their minds’ eye, the application of that regulatory definition is more elusive, and unless you are particularly knowledgeable in this regard, you may be best served by enlisting the services of an expert.
Under federal law, a firearm is “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; or any destructive device.” That does not include an antique firearm. Since the term firearm also includes references to a “Destructive Device,” the federal definition for firearm also includes such things as explosive, incendiary or poison gas bombs, grenades, rockets having a propellant charge of more than four ounces, missiles having an explosive or incendiary charge of more than one-quarter ounce, mines, or other similar devices.
State law definitions of firearms can vary widely, although most states adopt a definition similar to the federal definition. However, New Jersey and Rhode Island define BB guns, pellet guns and air rifles as “firearms,” despite not “operating by action of an explosive” (e.g., by not utilizing gunpowder in their operation), so be aware of jurisdictional differences.
Finally, the federal definition excludes “antique firearms” from the definition of firearm, but note that under federal regulations, there are two separate criteria for antique firearms – any firearm manufactured in or before 1898, or a [modern] replica of any firearm manufactured before 1898 that uses commercially available ammunition.
For the practitioner, these regulatory definitions can lead to illogical conclusions. Consider, by way of example, the Mosin-Nagant M1891 rifle and its various derivatives. This particular rifle was first produced in Imperial Russia in 1891, and was manufactured with minimal changes by Czarist, Russian, Soviet, Finnish, American, French, Hungarian, Polish, Romanian, Chinese, and a handful of other manufacturers all the way through 1973. It utilizes a cartridge (ammunition) that is still employed by Russian and other former Warsaw Pact militaries. This means that it is possible, and even likely, that two otherwise-identical rifles would have dramatically different regulatory findings and whether they are or are not a “firearm” can only be determined by carefully determining their date of manufacture. Put simply, if such a rifle was manufactured in or prior to 1898, it is not legally a firearm under federal law, but a physically and functionally identical version of such a rifle made in 1899 or later would be considered a firearm for purposes of regulatory and criminal law. Further, many things that look like, and even function as, a “firearm” are not legally “firearms”, and some things that do not appear to even be firearms (silencers, grenades and rockets, or even firearm parts such as “receivers”) are, in fact, “firearms.”
As if to further obfuscate the baseline “is it even a firearm” question, some courts have rejected the regulatory definition of “frame or receiver” by applying it exhaustively to the lower portion of the AR-15-type rifle. Because of the construction of the AR-15-type rifle, no single component “provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” Instead, the hammer and firing mechanism are contained in a “lower receiver,” while the bolt or breechblock is contained in the “upper receiver,” which also contains a threaded portion to receive the barrel. For nearly 50 years, the ATF has classified the lower receiver of the AR-15 rifle as the “frame or receiver,” while the upper receiver, including the firing pin, bolt and barrel (arguably, the part of the firearm system that “expel[s]a projectile by the action of an explosive”) is not considered a “firearm.” Despite their regulatory classification, courts recently have rejected the ATF’s classification, because the lower receiver only provides housing for the hammer and firing mechanism, but not the bolt or breechblock. Multiple federal courts charged with making findings on the regulatory definition have concluded that the receiver of a firearm must be a single unit that holds three, not two components: 1) the hammer, 2) the bolt or breechblock, and 3) the firing mechanism.
If you determine that the article is a firearm, the next question is “what kind or type of firearm is it”. Some of these types were explained above in “Basic Vocabulary,” but others deal with a separately regulated class of firearms that fall under the NFA. Most gun control measures that exist at the state level that prohibit or restrict firearms possession (or permit firearms possession with varying licensing or registration requirements) make those restrictions based on firearm “type.” In fact, the federal government and many states further regulate the possession, use, sale or distribution of different types of firearms differently. Some states have so-called “assault weapons” regulations that restrict the sale or possession of some semi-automatic rifles, shotguns and handguns. Some states (and the federal government) place at least some additional restrictions on the purchase, sale, transfer or use of handguns, and federal law, plus some state laws, place extensive registration, taxation and transfer restrictions (as well as possession restrictions, at the state level) on firearms controlled under the NFA.
Uniquely Regulated Firearms: The NFA Firearms and More Firearms that Aren’t “Guns”
The NFA imposes a statutory excise tax on the manufacture and transfer of certain firearms and mandates the registration of those firearms. These firearms, often referred to as “Title II Firearms” or “NFA Firearms” fall into one of six categories:
a. Short Barrel Rifles (e.g., rifles with a barrel less than 16 inches or an overall length less than 26 inches)
b. Short Barrel Shotguns (e.g., shotguns with a barrel less than 18 inches or an overall length less than 26 inches)
c. Destructive Devices
d. Machine Guns
e. Silencers or Firearm Mufflers (e.g., firearm silencers or suppressors)
f. Any Other Weapons (AOW)
The manufacture of any of these types of firearms each has their own statutory definition found in 18 U.S.C. 921, and requires the purchaser or manufacturer to pay the requisite excise tax of $200 (or $5, for certain AOWs that are transferred after manufacture). The federal government also prohibits the manufacture or civilian sale of new machine guns, and the transfer of any machine gun that was not registered before 1986, with some extremely narrow exceptions. These requirements are in addition to any requirements pertaining to the Gun Control Act (sometimes referred to as “Title I Firearms”). Additionally, some manufacturing or transfers do not require the payment of the $200 excise tax – only registration – in certain cases, such as manufacture by a federal licensee who has paid already paid a special occupational tax, or transfers pursuant to the administration of an estate. Generally, if a nonlicensee seeks to acquire a Title II firearm, either by manufacture or acquisition from a Title II dealer, the nonlicensee will be required to pay the $200 tax. Some transfers are made without the payment of the transfer tax, such as an inherited Title II firearm or if the parties are special occupational taxpayers (SOT), but submission of registration documents is required in all cases.
Some states will limit or restrict the possession of firearms regulated by the NFA under state law. Some states laws will ban the possession of certain NFA items outright, while others will ban the possession of certain NFA firearms indirectly. In states where NFA firearms are legal, you can reasonably expect to encounter them in your advocacy. According to ATF statistics, the most commonly registered NFA firearms are suppressors (or silencers), and there are approximately 2.6 million licensed silencers in the United States. While this is less than 1% of the estimated total number of firearms in the U.S., it is still a significant number. An attorney handling any matter involving firearms should be aware that despite not looking or functioning like a firearm, a silencer is a somewhat common article that is legally considered to be a firearm. Similarly, other items such as bombs, grenades or certain explosive rockets, which appear nothing like the common “gun” are regulated as firearms under the NFA. For example, in a criminal trial, a defendant accused of manufacturing a pipe bomb could be charged under a state or federal statute prohibiting the unregistered possession of an NFA firearm, to wit, a destructive device, despite that article not appearing or functioning like a traditional sporting arm.
For example, legislation in Massachusetts bans the possession of suppressors outright. Short-barrel shotguns are not specifically banned in that state, but Massachusetts does prohibit the possession of a “sawed off shotgun” (defined as a weapon, made from a shotgun that has a barrel length of less than 18 inches). The sawed-off shotgun prohibition does not prevent the registration of all short-barrel shotguns in that state – only ones made from a shotgun (a firearm designed to be fired from the shoulder with a smooth bore with a barrel over 18 inches in length) but it is illegal to manufacture, or have a gunsmith manufacture, a short-barrel shotgun from a Title I shotgun and register it in Massachusetts. However, a Massachusetts resident could purchase and register a short-barrel shotgun in Massachusetts if the short-barrel shotgun originated from the original manufacturer as short-barrel shotgun. Again, a situation exists where two physically-and-functionally identical firearms would receive different legal treatment (in this case under state law) based entirely on their circumstances of manufacture.
Machine guns manufactured before 1986 are legal to possess federally and registered by private citizens (provided they pass the requisite background investigation, obtain the approval of the ATF’s NFA branch, pay a $200 tax, and complete the transfer paperwork), but individual state laws may restrict or prohibit ownership. California has an outright ban on machine guns (automatic weapons), and in Massachusetts, anyone seeking to obtain a machine gun must hold a license issued by the chief law enforcement officer of the purchaser’s town of residence. Like the example of the Mosin-Nagant rifle previously, the date of manufacture has significant implications on the firearm’s legality. However, in cases of machine guns, the exact date of manufacture of a machine gun is relevant when determining whether the machine gun is “transferrable,” meaning able to be purchased and registered. Although machine guns manufactured before 1986, AOWs and destructive devices are not specifically prohibited in Massachusetts, a prospective buyer would need to be conversant on Massachusetts laws regarding (a) The state assault weapons ban; (b) state laws regarding disguised firearms; and (c) Massachusetts laws regarding the possession of explosives or “infernal machines.”
Before advising a client on the sale, transfer or purchasing of Title II firearm or attempting to obtain federal approval, ensure that such firearm will not violate your client’s jurisdiction’s laws, which is particularly common in cases of estate administration where beneficiaries live in different states. A firearm bequest in a will may be valid, but the transfer of a that particular firearm to a resident of California is not.
If you find a “gun” in your client’s case, consider educating yourself on the issue or finding a knowledgeable practitioner. Firearms law can be nuanced due to conflicting regulatory definitions and a heavy factual element when determining what regulations apply. Firearms attorneys are a force multiplier in the myriad of cases where “gun issues” might arise. You can find us advocating for individuals in their efforts to legally purchase, possess or carry firearms.
About the Author
Matthew P. Trask is the director of ethics and compliance for Nammo Defense Systems Inc. and former director of firearms compliance for Remington Arms Company. He previously served as the Governor’s Appointed Firearms Attorney on the Massachusetts Firearms Licensing Review Board, and currently concentrates his practice on advising U.S. defense contractors on the regulatory obligations surrounding the manufacture of military arms.