National Firearms Act
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The National Firearms Act (NFA), cited as the Act of June 26, 1934, Ch. 757, 48 Stat. 1236, as amended, currently codified as Chapter 53 of the Internal Revenue Code, 26 U.S.C. § 5801 through 26 U.S.C. § 5872, is a United States federal law passed in 1934 that, in general, imposes a statutory excise tax on the manufacture and transfer of and mandates the registration of all Title II weapons - that is, all sound suppressors or 'silencers', all machine guns, all rifles with a barrel length less than 16 inches (406 mm) (SBR) and shotguns with a barrel length less than 18 inches (457 mm) (SBS), shoulder fired weapons with an overall length less than 26 inches (660 mm), weapons classified as "Any Other Weapon" (AOW) and weapons classified as "destructive devices" (DD). For weapons with folding, collapsing or telescoping stocks, the overall length is measured with the stock fully extended.
Origins
The common assumption is that the public sale of Thompson submachine guns (circa late 1920s to NFA enactment) and the utilization of automatic firearms in the significant organized crime of the Prohibition Era prompted the legislation. While the Thompson itself was not especially common in the hands of criminals, saturating media presentation of it as 'the Mob's weapon of choice' created public fear, and may have assisted the government's efforts in obtaining the unprecedented new powers contained in the "National Firearms Act."[citation needed]
The National Firearms Act of 1934 did not complete passage through Congress until after the passage of the Twenty-First Amendment, repealing Prohibition. Although mob use of machine guns may have been the implied reason behind the drafting of the Bill that became the National Firearms Act, it is likely that something else got Congress' attention[citation needed]. The huge number of Treasury agents that were needed to enforce Prohibition, who were now useless, gave the government another reason to enact the law. The protests of the war veterans of the Bonus Army near Capitol Hill also reminded Congress of the power of citizens, and may have given congress an excuse to act to place severe controls on the private possession of military weapons. The Act requires that all movements across State lines of weapons controlled by the Act be reported[1] to the Treasury Department (this function has since been transferred to the Justice Department). The transfer tax of $200 placed on the transfer of firearms controlled by the Act was equivalent to roughly five months salary in 1934, the annual per capita income in the United States being only $424 in 1934 during the Great Depression.[2]
The registration process, purchases, taxes and transfers
All NFA items must be registered with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Private owners wishing to purchase an NFA item must obtain permission from both the ATF and the county sheriff or chief of police, pass an extensive background check to include submitting a photograph and finger prints, fully register the firearm, receive ATF written permission before moving the firearm across state lines, and pay a tax. The request to transfer ownership of an NFA item is made on an ATF Form 4. NFA items may also be transferred to corporations. When the paperwork to request transfer of an NFA item is initiated by an officer of a corporation, permission from local law enforcement is not required, and fingerprint cards and photographs do not need to be submitted with the transfer request.
The tax for privately manufacturing any NFA firearm (other than machineguns, which are generally illegal to manufacture) is $200. Transferring requires a $200 tax for all NFA firearms except AOWs, for which the transfer tax is $5 (note that the manufacturing tax is still $200). Dealers who pay a special yearly occupational tax are exempt from these taxes for transfers to or from other special occupational taxpayers (SOTs). The registration or transfer process takes approximately 4-6 months to complete. Additionally, the firearm can never be handled or transported by any other private individual unless the firearm's registered owner is present.
Criminal conduct under the Act
The NFA makes certain conduct a criminal offense, including but not limited to: engaging in business as a manufacturer, importer, or dealer with respect to firearms without having registered or paid a special occupational tax; receiving or possessing a firearm transferred to oneself in violation of the NFA; receiving or possessing a firearm made in violation of the NFA; receiving or possessing a firearm not registered to oneself in the National Firearms Registration and Transfer Record; transferring or making a firearm in violation of the NFA; or obliterating, removing, changing, or altering the serial number of the firearm.[1]
Criminal penalties
Violations of the National Firearms Act are punishable by up to 10 years [2] in federal prison as well as forfeiture of all devices or firearms in violation, and the individual's right to own or possess firearms in the future. The Act itself provides for a penalty of $10,000 for certain violations.[3] A willful attempt to evade or defeat a tax imposed by the Act would be punishable as a felony by up to five years in prison and a $100,000 fine ($500,000 in the case of a corporation), under the general tax evasion statute.[4] For an individual, the felony fine of $100,000 for tax evasion could be increased to $250,000 by virtue of 18 U.S.C. § 3571(b)(3).
The market for NFA items
Importation of NFA weapons was banned by the 1968 Gun Control Act which implemented a "sporting" clause. Only firearms judged by ATF to have feasible sporting applications can be imported for civilian use. The manufacture of new machine guns that civilians could purchase was effectively banned by language in the Firearm Owners Protection Act of 1986. All machine guns legally registered prior to the date of enactment are still legal for possession by and transfer among civilians where permitted by state law. The static and relatively small number of transferable automatic firearms has caused their price to be often over $10,000, although transferable M10 and M11 submachine guns (more commonly known as "Mac 10's") can still be purchased for around $3,500. Machine guns manufactured after the FOPA's enactment can be sold only to law enforcement and government agencies, exported, or in some cases held as inventory by licensed manufacturers and dealers.
The Miller case
In the 1930s, the United States District Court for the Western District of Arkansas ruled the statute unconstitutional in United States v. Miller. The defendant Miller had been arrested for possession of an unregistered short barreled shotgun. The government's argument was that the short barreled shotgun was not a military weapon and thus not a "militia" weapon protected by the Second Amendment. The District Court agreed with Miller's argument that the shotgun was legal under the Second Amendment.
The District Court ruling was overturned on a direct appeal to the United States Supreme Court (see United States v. Miller). No brief was filed on behalf of the defendants, and the defendants themselves did not appear before the Supreme Court. No evidence that such a firearm was "ordinary military equipment" had been presented at the trial court (apparently because the case had been thrown out -- at the defendants' request -- before evidence could be presented), and the Supreme Court indicated it could not take judicial notice of such a contention.
The Supreme Court ruled that the NFA provision (criminalizing possession of certain firearms) was not unconstitutional under the Second Amendment.
Subsequent rulings have been allowed to stand, indicating that short-barreled shotguns are generally recognized as ordinary military equipment if briefs are filed (e.g., see: Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942), describing use of short-barreled shotguns in specialized military units.)
Criticisms and uncertainty after Miller
The validity of the factual basis for the Miller decision has been questioned, as short barreled shotguns were used by American troops during the trench warfare of World War I, and after the Miller decision in World War II and the Vietnam War.[citation needed] The decision is further criticized because the law further regulates all automatic weapons, resulting in most ordinary military weapons also being regulated.
The scope of the application of the Act to privately constructed firearms or devices is uncertain. Such items would normally be regulated under the Act's provisions, but are intended for private ownership only and not for sale. As the Act's application is derived from the federal legislature's Constitutionally enumerated power of regulation over interstate commerce, it is unclear how privately constructed firearms or devices built solely for personal possession (not intended for sale or transfer, and thus arguably not intended to be delivered into the stream of interstate commerce) are affected by the Act.