A client recently asked this question. He specifically wanted to know if the rules differ when the customer is in a different state than the manufacturer or gunsmith.
Given the myriad laws and regulations which govern both the transfer and shipment of firearms, it is hardly surprising that this is an area of some confusion for both gun owners and licensees.
I should also note that I will answer the question based upon federal and Virginia law. Other states may have additional state-law requirements of which I am unaware.
Having said that, the ATF answers this exact question from a federal law perspective in their Top Ten Firearms Questions document (embedded below):
“this paragraph … shall not be held to preclude a licensed importer, licensed manufacturer, licensed dealer, or licensed collector from returning a firearm or replacement firearm of the same kind and type to a person from whom it was received”
“a firearms transaction record, Form 4473, shall not be required to record the disposition made of a firearm delivered to a licensee for the sole purpose of repair or customizing when such firearm or a replacement firearm is returned to the person from whom received.”
I was recently contacted by a firearms enthusiast who is also the owner of a machine shop. He wanted to know if he could host an event where he opened his shop to a group of fellow shooters so that they could each finish an 80% lower.
He planned to show them how to operate each piece of machinery and then have them do the actual ‘manufacturing’ of the receiver. In his initial description, he categorized it as a ‘class’.
It sounded like a lot of fun and I really wish that I hadn’t been forced to be the bearer of bad news. But such a setup would run afoul of ATF Ruling 2015-1 (embedded below).
This ruling addressed two separate issues surrounding the manufacture of firearms by those not licensed as manufacturers. The holding applicable to my client’s issue was the second one addressed (starting on the middle of page 5).
The holding from the ATF was “that a business (including an association or society) may not avoid the manufacturing license, marking, and recordkeeping requirements of the GCA by allowing persons to perform manufacturing processes on blanks or incomplete firearms (including frames or receivers) using machinery, tools, or equipment under its dominion and control where that business controls access to, and use of, such machinery, tools, or equipment.”
In layman’s terms, an individual may still manufacture his or her own firearm from an 80% lower. But they must do it using their own machinery, tools, and equipment.
Virginia offers the possibility of a ‘deferred disposition’ for first time offenders of a number of crimes, including most misdemeanor ‘property’ crimes.
In a deferred disposition case, the judge will:
a) Hold that the facts are sufficient for a finding of guilt;
b) Withhold adjudication until some future date;
c) Place the defendant upon probation which imposes conditions and requirements on their behavior (for example this may include community service); and
d) Dismiss the charge in the future upon successful completion of the probation.
Once such a charge is dismissed, the defendant may wish to petition the court for expungement. But will such a petition be granted?
But why is the answer ‘no’ in most cases (even given the update linked above)? In Com. v. Dotson, 661 S.E.2d 473, 276 Va. 278 (Va., 2008) the Virginia Supreme Court held that a criminal charge that was dismissed pursuant to a first offender statute cannot be expunged because “[a] defendant cannot be considered “innocent” as contemplated by the expungement statute when … the trial court finds that the evidence was sufficient to prove his or her guilt.”
In Brown v. Com., 677 S.E.2d 220, 278 Va. 92 (Va., 2009), the Virginia Supreme Court further expanded upon this theme by holding that the key determining factor as to whether or not a dismissal falls within the purview of the expungement statute is whether “the evidence was sufficient to establish guilt” even if such a finding is withheld.
In summary, if a case is dismissed following a deferred disposition, expungement is generally not available (but do see the update linked above).
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.
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
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.
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.
“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:
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:
Prohibited persons who have not had their gun rights restored are prohibited from possessing firearms or ammunition.
Possession can be either actual or constructive.
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)
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.
“John represented me at my hearing in Fairfax County Circuit Court for my Petition for Restoration of Firearms Rights. My case was a bit complex and it incorporated some new legislation that John was very educated on. The legislation was so new that the Commonwealth’s Attorney and the Judge did not have any knowledge of it. John’s actions in the courtroom to bring the new legislation to the attention of the court were astonishing and brilliant; even bringing a smile to the Judge and pat on the back from a fellow attorney after the hearing.
John’s flat rate pricing for representation is amazingly affordable. He is true to his word, communicates through out the entire process and works diligently to represent you. I highly recommend John Pierce.” - Shawn
Outstanding Service
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The code section referenced is 18 USC § 922(a)(2)(A) which reads in part:
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.
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?”
