Why do some approved Form 1’s say “FORM 1 REGISTRATION” in box 4a?

I recently received a call from a client who had received his approved Form 1 for a self-manufactured suppressor.  The Form 1 application had been submitted pre-41F via eForms.

In reviewing the approved form in preparation for having his tube engraved, he was confused as to why box 4a did not contain his trust name, city, and state as the original manufacturer.

Instead, it simply said:

FORM 1 REGISTRATION, UNITED STATES

His confusion was increased by the fact that one of his friends had an approved Form 1 for an SBR that was also entered via eForms and box 4a on that approved form contained the name of the original manufacturer of the lower.

He was very concerned and had two questions that he wanted answered:

a)  Where did this come from and does it indicate that his approval is invalid; and

b)  If the approval is valid, how does this impact his engraving requirements.

Let’s address these in the order asked.

Where does this come from?

The short answer is that this is an artifact from the much-maligned and mercurial eForms system (which is no longer available to trust applicants post-41F).

As for why this is the case, in the ATF eForms Bulletin from December of 2013 entitled ‘EForms 101’ (embedded below), on the top of page 10 we see the following (emphasis added):

If the applicant is creating the firearm (for example, a silencer or finishing an ‘incomplete receiver’ (that is not yet a firearm)), the applicant will be the maker under the NFA and GCA. Thus, when completing the Line Item (Add Firearm) field, click the “By Manufacturer Code’ button and enter the code ‘FMI’. This code stands for ‘Form 1 Registration’ and the entry can continue. …

If the applicant is modifying an existing firearm, typically a standard configuration rifle into a short barreled rifle, the applicant will still be the maker under the NFA but there will be a manufacturer under the GCA, thus, the form requires the name of the original manufacturer of the firearm.

Download (PDF, 1.49MB)

So we see that, when using eForms as directed by the ATF and self-manufacturing a suppressor or building an SBR from an ‘incomplete’ (non-serialized) lower, the manufacturer was to be entered as ‘FMI’ which would result in box 4a containing “FORM 1 REGISTRATION, UNITED STATES”.

Alternatively, when using eForms to submit a Form 1 for an SBR build using an already serialized lower or upper, the manufacturer was selected from the list of licensed manufacturers and box 4a would then contain the name and address of the original manufacturer of the lower or upper.

I should note that, at various times during its service life, eForms did allow freeform entry of trust name in the manufacturers field and in almost all of these cases, the examiner would change the entry to FMI prior to approving the Form 1.  Conversely, all pre-41F paper Form 1’s will have the trust name and address in box 4a.

But these system-created variances do not in any way call into question the validity of these approved Form 1’s.  If the registrant’s information is correct, the serial number is correct and properly marked on the item, the making tax has been paid, and the ATF examiner has approved the Form 1, then the Form 1 is valid.

Good.  Now how does this affect my engraving requirements?

Let’s start by clarifying our terms.  When you are building an NFA item for yourself or your trust you are a maker, not a manufacturer.  If you look closely at the top of a Form 1 you will see that it is an Application to Make and Register a Firearm.

27 CFR 478.92 and 27 CFR 479.102 both lay out the requirements for placing identifying markings on items you make or manufacture.

Specifically, 27 CFR 479.102 requires that:

“You, as a manufacturer, importer, or maker of a firearm, must legibly identify the firearm as follows (emphasis added):

(2) By engraving, casting, stamping (impressing), or otherwise conspicuously placing or causing to be engraved, cast, stamped (impressed), or placed on the frame, receiver, or barrel thereof certain additional information.

(iii) Your name (or recognized abbreviation) and also, when applicable, the name of the foreign manufacturer or maker;”

Note that nowhere does it mention the specific contents of Form 1 box 4a.  The contents of this form are submitted for the purposes of informing the examiner processing the Form 1 application and not for the purpose of informing the engraving process.

The regulations are clear on what needs to be engraved.  When engraving a self-manufactured item with no original serial number, you need to engrave the following:

  • Trust Name, City, and State
  • Model
  • Serial Number
  • Caliber

 

Posted in 41F, 80% Lower, Administrative Law, ATF, BATFE, eForms, Engraving, Federal Law, Form 1, Manufacturing, SBR, Suppressors | Leave a comment

Do I lose my right to possess firearms if I live with a prohibited person?

This is a question that arises quite frequently.  “If my (husband / wife / boyfriend / girlfriend / parent / roommate) is a prohibited person does that mean I can’t have my legally owned firearms in my own home?

The answer, as is often the case with legal questions, is complicated.  Let’s start with a few basic facts:

  1.  Prohibited persons who have not had their gun rights restored are prohibited from possessing firearms or ammunition.
  2. Possession can be either actual or constructive.
  3. Constructive possession “exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others” and may be evidenced by “[p]roof that the person has dominion over the premises where the firearm is located”  U.S. v. Hadley, 431 F.3d 484, 507 (6th Cir. 2005)
  4. A non-prohibited person does not lose their right to possess firearms or ammunition simply because they choose to live with a prohibited person but they are potentially subject to prosecution for aiding and abetting the possession of the prohibited person if they do not properly store their items.  United States v. Huet, 665 F.3d 588 (3d Cir. 2012)

So … if you, as a law-abiding gun owner, wish to share a residence with a convicted felon (or any other category of prohibited person) then you will need to take great care to insure that they cannot be held to have either actual or constructive possession of any firearm or ammunition.

The safest way to do this is to store your firearms and ammunition in a gun safe and make sure the prohibited person does not know the combination nor have access to the keys if it is a keyed lock.

And do not forget the ‘and ammunition‘ part of the requirement.  Prohibited persons cannot have actual or constructive possession of firearms or ammunition.  Gun owners who are scrupulous about locking up their firearms may not be as stringent about ammunition storage.  In the case of a housemate who is a prohibited person this could have severe legal consequences.

I should also add that, while such a storage plan should allow a prohibited person to argue successfully that they did not have actual or constructive possession, it does not insure that a circumstance might not arise where they are charged with being in possession and are forced to incur the cost of defending themselves in court.

In addition, if the gun owner is careless, it is the prohibited person who faces the greatest threat of prosecution while only the gun owner has the power to insure that all items are properly stored.  All parties involved, especially the prohibited person, should understand the very real risks involved before moving in.


Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.

Posted in Criminal Law, Domestic Violence, Federal Law, Felons, Gun Rights Restoration, Mental Health, Prohibited Persons | Comments Off on Do I lose my right to possess firearms if I live with a prohibited person?

Do I lose my gun rights if I voluntarily seek mental health treatment?

The criteria for which types of mental health issues might give rise to a gun rights prohibition under either state or federal law is staggeringly complex.

For the average citizen, unfamiliar with researching and parsing legal language, the task of understanding this area of law can span the spectrum from daunting to impossible.

Perhaps even worse, it can lead to a proliferation of misunderstandings and misinformation which has the real possibility of criminal charges being filed against a confused applicant for answering one of the questions on a state or federal background check form incorrectly.

Because of this, I would encourage anyone who is uncertain about a given event in their past to contact me for a free consultation during which we can discuss the issue and determine what steps we need to take to clarify the situation.

However there are a few questions which remarkably have a clearly defined answer and one of the most common is this:

“If I voluntarily admitted myself to get mental health treatment, have I lost my gun rights?”

The answer is “No.  Not if you sought voluntary treatment entirely on your own.”  I have to add that caveat to the answer because, under state law, voluntarily admitting yourself for treatment after being held on a temporary detention order (TDO) still results in a prohibition.

However, if a TDO is not involved and a person admits themselves for treatment voluntarily (and is not subsequently committed or ruled to be mentally incompetent or incapacitated by a board, authority, or magistrate) then this does not trigger a prohibition under state or federal law.

The ATF provides a guidance sheet covering federal law which I have embedded below.  I have highlighted the relevant portion.

Download (PDF, 114KB)


Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer is specific to Virginia.  Other states may and do have laws which differ from this analysis.  In those cases you should consult an attorney licensed to practice law in that specific state.

Posted in 4473, ATF, ATF Guidance Letters, BATFE, Criminal Law, Federal Law, Mental Health, Purchasing Firearms, Virginia Law | Comments Off on Do I lose my gun rights if I voluntarily seek mental health treatment?

Governor signs bill allowing non-residents with a VA mental health prohibition to petition for gun rights restoration

In 1994, Paul Anthony Leone was convicted of felony possession of marijuana in Virginia.  This conviction stripped him of both his political rights and his right to possess firearms.

Years later, in 2012, Mr. Leone, now living in North Carolina, successfully applied to Governor McDonnell for a restoration of his political rights.  Having done so, he then petitioned the Virginia Beach Circuit Court for  a restoration of his firearm rights.

Over the objections of the Commonwealth’s Attorney the court granted his petition.  The Commonwealth subsequently appealed and the Supreme Court of Virginia ultimately reversed the order on the grounds that the clear text of 18.2-308.2(C) only allows petitioners to “petition the circuit court of the jurisdiction in which he resides.

Since Mr. Leone admittedly was no longer a resident of the Commonwealth, the court held in Commonwealth v. Leone, 286 Va. 147, 747 S.E.2d 809 (Va., 2013), that the Legislature had “ limited the territorial jurisdiction of circuit courts to adjudication of petitions for restoration filed by persons who reside within the territorial jurisdiction of the circuit court.

In short, the court held that non-residents need not apply.  At least not unless the Legislature were to revisit the issue.

During the 2015 legislative session, the Legislature did just that.  Delegate Fowler introduced HB 1666 to allow non-residents of the Commonwealth who were originally convicted in a Virginia court to petition the circuit court in “the circuit court of any county or city where such person was last convicted of a felony or adjudicated delinquent of a disqualifying offense” for restoration of their firearm rights.

The bill passed the House and Senate and was signed by the Governor on March 16th, 2015 and it went into effect on July 1st, 2015.

Unfortunately, Delegate Fowler’s bill only addressed gun rights restoration in the circuit courts for those suffering from a prohibition based upon a felony conviction.  However, that is not the only restoration mechanism in Virginia law.

Under  sections 18.2-308.1:1, 18.2-308.1:2, and 18.2-308.1:3 of the Code of Virginia, those who have lost their right to possess firearms based upon different types of mental health issues may also petition for restoration of those rights in the general district court of the jurisdiction where they reside.  As you can see, these sections suffer from the same jurisdictional language flaw as that which existed in  § 18.2-308.2(C) prior to July 1, 2015.

This year I drafted a bill to make the same correction to these three sections that Delegate Fowler’s bill made to  § 18.2-308.2(C) in 2015.  My local delegate Israel O’Quinn was kind enough to carry the bill despite my bringing it to him at the very last moment.  Thanks to his assistance, HB 2429 passed both the House of Delegates and the Senate with unanimous votes and was signed into law by the Governor on March 16th.

It will go into effect on July 1, 2017 and will allow non-residents whose mental health prohibition originated in Virginia to petition the general district court in the jurisdiction where their most recent mental health disqualifying event occurred.

You may be asking yourself why the anti-gun members of the House and Senate voted for a bill that can be categorized as pro-gun.  I believe it is because this bill does nothing to change the broad discretion that judges have when evaluating such cases.  It merely gives non-residents the ability to petition for a hearing on the matter.  This bill is not pro-gun so much as it is pro-due process and I suspect that is how it was seen by even anti-gun legislators.

Having said that, gun rights restorations based upon mental health dis-qualifiers are granted in far fewer cases than those based upon felony convictions and I do not anticipate this bill changing that in the slightest.  To maximize a petitioner’s chance of success, it will continue to be critical that they are represented by someone with a detailed knowledge of the process and the factors a judge will consider when making this important public safety decision.

If you are a Virginia resident or non-resident with a Virginia-based prohibition, I will be happy to speak to you about your chances for petitioning for the restoration of your rights in Virginia.

Posted in Criminal Law, Federal Law, Gun Rights Restoration, Mental Health, Virginia Law | Comments Off on Governor signs bill allowing non-residents with a VA mental health prohibition to petition for gun rights restoration

Do you have to register for ITAR if you are only manufacturing AR-15 uppers?

In my last post I answered the question of whether or not an FFL is required if one is only manufacturing and selling AR-15 uppers.

Almost immediately I was asked a follow-up question about whether or not a person who is only manufacturing uppers (and therefore not subject to the requirement of holding an FFL) would still need to register with ITAR.

For those of you unfamiliar with ITAR, I have a detailed article on the registration requirements of ITAR for those holding a manufacturing FFL.  However, here we are talking about manufacturing uppers without holding an FFL of any kind.

To evaluate this unique question, we start with the regulation which governs the registration requirements or the International Traffic in Arms Regulations (ITAR) which were promulgated to implement the provisions of the Arms Export Control Act of 1976 (AECA).  The relevant section (emphasis added) is as follows:

Any person who engages in the United States in the business of either manufacturing or exporting defense articles or furnishing defense services is required to register with the Directorate of Defense Trade Controls. For the purpose of this subchapter, engaging in the business of manufacturing or exporting defense articles or furnishing defense services requires only one occasion of manufacturing or exporting a defense article or furnishing a defense service. Manufacturers who do not engage in exporting must nevertheless register.

As for what constitutes ‘defense articles’, 22 USC 121 contains a complete listing under what is known as The United States Munitions List (USML).  The relevant section is contained in Category I of the list in subsections g and h (with reference to subsection a):

(a) Nonautomatic and semi-automatic firearms to caliber .50 inclusive (12.7 mm).

(g) Barrels, cylinders, receivers (frames) or complete breech mechanisms for the articles in paragraphs (a) through (d) of this category.

(h) Components, parts, accessories and attachments for the articles in paragraphs (a) through (g) of this category.

The short answer is that, despite not requiring an FFL, those seeking to manufacture uppers for the AR-15 platform are required to register for ITAR and pay the registration fee.

So … how bad is this fee?  It’s pretty bad.  If you are not engaged in exporting then you would be considered a ‘Tier 1’ registrant.  Therefore you would only have to pay the lowest possible fee.

A set fee of $2,250 per year is required for new registrants or registrants for whom the Directorate of Defense Trade Controls has not reviewed, adjudicated or issued a response to any applications during a 12-month period ending 90 days prior to expiration of the current registration.

I understand that this registration requirement imposes a significant barrier to entry into the firearms industry.  However, until we see federal action on the issue I will continue to educate my clients on the ITAR requirements.

Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.

Posted in AR-15, ATF, BATFE, Federal Law, ITAR, Manufacturing, Uppers | Comments Off on Do you have to register for ITAR if you are only manufacturing AR-15 uppers?

Do you need an FFL to manufacture and sell AR-15 uppers?

I was recently asked whether an FFL is required to manufacture and sell AR-15 uppers.

The answer is ‘no‘ but I want to caution readers that this would not necessarily be the case if the upper in question was for a different firearm.

In the AR platform, the lower is the serialized item (the actual firearm), whereas uppers are considered merely accessories and are not serialized.  Therefore, manufacturing and selling only the upper would not require an FFL (Federal Firearms License) since you are not dealing with an item considered to be a ‘firearm’ or ammunition.

This analysis would not be the same on certain other platforms.  For example, in the FN-FAL and Bushmaster ACR designs (to name just a few) the upper is the serialized ‘firearm’ and therefore an FFL would be required to manufacture or sell uppers for those designs.

Disclaimer:  Please note that this analysis is specifically focused on whether an FFL is required.  Individual states may place additional restrictions or requirements upon the manufacture of firearms components.

Posted in AR-15, ATF, BATFE, Federal Law, FFL Issues, Manufacturing, Uppers | Comments Off on Do you need an FFL to manufacture and sell AR-15 uppers?

Can felons hunt with crossbows in Virginia?

I have written before about the rampant confusion surrounding the issue of whether or not felons can possess, and hunt with, black powder firearms in Virginia.

Spoiler alert … they cannot.

But there is a separate question that comes up almost as often and that is whether or not felons can possess, and hunt with, crossbows.

I believe that part of the confusion is based upon the fact that crossbows were not allowed to be used for hunting by anyone in Virginia until 2005, except in the case of hunters “whose physical disabilities prevent[ed] them from hunting with conventional archery equipment.

Because of this, many people seem to mentally separate crossbows from conventional bows and assume that they are regulated more like firearms (which are prohibited to felons whose gun rights have not been restored).  But is that correct?

As always, when we are discussing an issue of ‘firearms’ law, we have to examine both state and federal law.  So let’s start by looking at federal law.

Federal law, at 18 U.S.C. § 921(a)(3), defines a firearm as:

(A) 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; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

So … since crossbows use stored potential energy to propel an arrow rather than the action of an ‘explosive’ (or rapidly burning propellant), they are not prohibited to felons under federal law.

But we still have state law to consider.

I will start by noting that there are no statutes which specifically prohibit crossbows to felons in the Code of Virginia.  So we need to determine if they are swept into the state definiton of ‘firearms’.

In Virginia, the definition of ‘firearm’ is contained in a number of statues, including those governing when a background check needs to be performed (§ 18.2-308.2:2).  Under this code section, we see a definition of “firearm” that closely matches the federal definition.

“Firearm” means any handgun, shotgun, or rifle that will or is designed to or may readily be converted to expel single or multiple projectiles by action of an explosion of a combustible material.

Once again we find that crossbows do not meet this definition.  But we are not done yet. As always, we end our analysis by looking at case law.

After reviewing the holdings of the Virginia Supreme Court, Court of Appeals, and Circuit Courts, I am unable to find any case law which could even tangentially be read to imply that crossbows are considered ‘firearms’ under Virginia law or that they are denied to those convicted of a felony.

In summary, it appears that, in Virginia, there are no statutory bars to the lawful purchase or possession of crossbows by convicted felons.  This would include their use for lawful hunting.

NOTES:  The one caveat I must add is that, for those still on supervised probation, there may be conditions of probation which would change this analysis.

If you are a convicted felon who wishes to regain his or her right to possess firearms then I will be glad to discuss representing you in petitioning the court for restoration of your rights.

If you have any other questions feel free to contact me for a free consultation.


Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer is specific to Virginia.

Posted in Bows, Criminal Law, Crossbows, Federal Law, Felons, Gun Rights Restoration, Virginia Law | Comments Off on Can felons hunt with crossbows in Virginia?

You no longer need to print ATF Form 1’s and Form 4’s double-sided

I received an email today from a client who had noticed that the latest downloadable versions of both the Form 1 and the Form 4 now have new instructions regarding the printing of the forms.

Prior versions of both forms (including the initial versions released for the implementation of 41F) required that the forms be printed double-sided at the risk of disapproval of the application.

The specific instruction on the old versions of both forms stated:

Photocopies or Computer Generated Versions.   After downloading or copying and printing this form from the ATF website, ensure that the front and back are on the same sheet of paper. The NFA Branch will not approve the application if the front and back are on separate sheets of paper.

The new version specifically disavows this requirement.  The new instruction states:

Photocopies or Computer Generated Versions.  The form may be copied or downloaded (for example, from the ATF website (www.atf.gov)). The form does not have to be printed front to back.

My guides to completing both forms have been updated accordingly.

Posted in 41F, ATF, BATFE, Form 1, Form 4, NFA Transfers | Comments Off on You no longer need to print ATF Form 1’s and Form 4’s double-sided

Understanding the Virginia ban on ‘street sweeper’ shotguns

saiga_drum_magA question that arises quite frequently concerns the interpretation of the ‘like kind‘ language in the Virginia ban on Striker 12 Street Sweeper shotguns.

With the popularity of semi-auto shotguns such as the Saiga and Vepr 12, these questions are understandable.

Today I was asked this question yet again by a long-time client and I thought the answer might be of interest to others.

His questions could be paraphrased as follows:

In a Saiga or Vepr semi-auto 12 gauge shotgun with a folding stock:

  1. Is it legal to use any box magazine regardless of capacity?
  2. Is a 10 round drum magazine allowable?
  3. What about a 20 round drum magazine?  Since the statute specifically requires a 12 round magazine wouldn’t a 20 be acceptable?

Let’s start by looking at the applicable statute which is § 18.2-308.8 of the Code of Virginia.  It reads as follows:

It shall be unlawful for any person to import, sell, possess or transfer the following firearms: the Striker 12, commonly called a “streetsweeper,” or any semi-automatic folding stock shotgun of like kind with a spring tension drum magazine capable of holding twelve shotgun shells. A violation of this section shall be punishable as a Class 6 felony.

Breaking the prohibition down, we see that the ‘like kind‘ language requires that, in order to be prohibited, a firearm must be:

  • A semi-auto …
  • shotgun …
  • with a folding stock …
  • with a spring tension drum magazine …
  • that is capable of holding 12 shotgun shells

Now that we have broken down the requirements, let’s answer the 3 questions above.

  1.  Is it legal to use any box magazine regardless of capacity?
    1. Yes.  In order to fall under the prohibition, a firearm must have a spring tension drum magazine.  A box magazine would fall outside the prohibition.
  2. Is a 10 round drum magazine allowable?
    1. Yes.  A 10 round drum magazine is not ‘capable of holding 12 shotgun shells’ and therefore that configuration would fall outside the prohibition.
  3. What about a 20 round drum magazine?  Since the statute specifically requires a 12 round magazine wouldn’t a 20 be acceptable?
    1. No!  The statute does not require that the magazine be exactly 12 rounds, only that it becapable of holding twelve shotgun shells’, which a 20 round drum certainly is capable of.  Anyone who interprets this statute to only prohibit drum magazines which hold exactly 12 rounds subject themselves to a significant risk of prosecution and conviction!

I hope this clarifies the issue somewhat.  The good news is that one can take either of these shotguns (or any other semi-auto shotgun capable of holding a drum magazine) completely out of the purview of this statute by removing the folding stock and replacing it with a fixed stock.

NOTE:  This analysis governs ‘like kind‘ shotguns that are not NFA items.  As I explained in this article, the Striker 12 Street Sweeper itself is now classified as an NFA item.

Posted in Street Sweeper, Virginia Law | Comments Off on Understanding the Virginia ban on ‘street sweeper’ shotguns

In honor of our nation’s veterans

veterans_dayAs a nation we tend to talk about ‘rights’ and ‘freedoms’ as if they were something inevitable.  But a quick look around the world will demonstrate the folly of that assumption.  The ‘freedoms’ we enjoy and the ‘rights’ we claim were purchased in the coin of sacrifice, blood, and lives; and the same price is required to maintain them.

Today … on a day when we as a nation pause to honor those who have served in our military … let us take great care to remember the debt we owe to every man and woman who has ever taken the oath and gone far from home where they intentionally placed themselves in harms way to protect our great republic.

I ask everyone to join me in honoring our service members, past and present, for their service to our country and for their service in defense of freedom.

#RealSuperHeroes

 

Posted in Opinion, Second Amendment | Comments Off on In honor of our nation’s veterans