By: Zachary Fleming, Staff Writer
If you’re driving down the street and hear the thunderous roar of machine gun fire, you, like most Americans, are likely to ponder the current situation very carefully. You may wonder, “How did I get to this war zone and what is the quickest way out?” or, “Is, [insert the name of your favorite action star here] (By the way, I am quite partial to Bruce Willis) shooting a movie nearby? Where are my head shots and agent when I need them?” Well, I’ve got good news and bad news. The good news is you don’t need to race home and get your Kevlar because, in all likelihood, you are not heading towards a battlefield. The bad news (sorry to crush your dreams) is that you probably won’t be saving the world at the last second alongside your favorite celebrity in yet another clichéd, albeit glorious, fashion. Instead, you are probably just heading towards your local shooting-range where avid shooters are getting in some target practice.
It is a common misconception that machine guns and silencers are illegal in the United States. It is thought that these are devices reserved only for criminals, law enforcement or the military. However, this could not be further from the truth. While they are heavily regulated, machine guns and suppressors are perfectly legal for law-abiding civilians to own as long as they reside in a state that permits such ownership, and they go through the appropriate legal channels to obtain such a weapon/device. The National Firearms Act regulates these weapons and devices.
Originally enacted in 1934, the National Firearms Act (“NFA”) enacted a tax on the manufacture and transfer of certain firearms defined by the act, as well as levying a tax against the manufacturers, importers and dealers of NFA firearms.[1] Another provision was that these firearms had to be registered with the Secretary of the Treasury.[2] Firearms subject to the original act included: rifles and shotguns with barrels less than 18 inches in length (rifles now are required to have a minimum of 16 inch barrel), firearms labeled as “any other weapons” (i.e. Pen Guns), machine guns and firearm mufflers/silencers (also referred to as suppressors; these devices really don’t “silence” a firearm in the way Hollywood would have you believe, but that is a topic for another day’s discussion).[3]
Criminal events such as the St. Valentine’s Day Massacre prompted Congress to pass the act in effort to restrict access to NFA firearms in hopes of decreasing rampant crime.[4] It was hoped that making these weapons more burdensome to obtain would accomplish this. For example, the 1934 act implemented a $200 tax on each NFA firearm one attempted to purchase.[5] This meant that, before purchasing an NFA weapon, the buyer would have to pay $200 (Roughly $3,552.70 today)[6] in addition to the cost of the weapon.
As it was structured, the 1934 NFA imposed a duty on possessors of unregistered NFA firearms to register them with the Secretary of the Treasury. Upon registering their firearm, as required by § 5841 of the NFA, the Department could then supply such information to state law-enforcement authorities regarding the registering party’s possession of such a weapon. This gave state authorities information they could then use to prosecute the registering party for state law violations.[7] This presented an issue that went all the way to the Supreme Court in 1968, which ultimately lead to the downfall of the NFA as it stood in 1934.
In 1968, the United States Supreme Court held the 1934 National Firearms Act unconstitutional because § 5841 required potentially self-incriminating disclosures, a clear violation of the Fifth Amendment of the U.S. Constitution.[8] This decision brought rise to Title II of the Gun Control Act (GCA) of 1968, which cured the constitutional deficiency pointed to in Haynes v. U.S. First, Title II eliminated the requirement for possessors of unregistered NFA firearms to register them.[9] Title II also prohibited the use of information from an NFA application or registration as evidence against that person in a criminal proceeding regarding a violation of law prior to, or concurrent with, the filing of an application or registration of the firearm/device. It is important to note though that possession of an unregistered NFA firearm is still illegal.[10] The NFA was reexamined in 1971, following the implementation of Title II by the Supreme Court, and found that the NFA was then in compliance with the Constitution.[11] Title II also modified the NFA definitions of “firearm” by adding “destructive devices” (such as bombs and grenades)[12] and expanding the definition for machine guns.[13] The Firearm Owners’ Protection Act of 1986 further amended the NFA.[14]
The Firearm Owners’ Protection Act (“the Act”) expanded the definition of “silencers” by adding parts intended for use in the assembly or fabrication of the silencer.[15] This includes the baffles found within the silencer. The Act also amended the GCA to prohibit the transfer or possession of machine guns.[16] However, exceptions were made so that government agencies, and those lawfully in possession of such weapons before the amendment date of May 19, 1986.[17] These machine guns can also be transferred, so long as they were registered and possessed legally prior to May 19, 1986, pursuant to the approval of an ATF Form 4.[18] One should note though that finding a transferable machine gun is quite a daunting task and, when one is found, the purchase can be cost-prohibitive, with prices in the tens-of thousands of dollars.
In conclusion, while heavily regulated, ownership of suppressors and machine guns is legal in the Untied States. Obtaining such a device requires a long wait, extensive background check and substantial cost, but for those involved in the shooting sports, it is well worth it. As long as your state permits ownership of such weapons and devices, after filing the requisite paperwork with the ATF, you may legally own a suppressor or machine gun.
[1] U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, National Firearms Act, atf.gov https://www.atf.gov/content/firearms/firearms-industry/national-firearms-act
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] U.S. Bureau of Labor Statistics, CPI Inflation Calculator, data.bls.gov http://data.bls.gov/cgi-bin/cpicalc.pl?cost1=200&year1=1934&year2=2014
[7] U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, National Firearms Act, atf.gov https://www.atf.gov/content/firearms/firearms-industry/national-firearms-act
[8] Haynes v. U.S., 390 U.S. 85 (U.S. 1968).
[9] U.S. Bureau of Labor Statistics, CPI Inflation Calculator, data.bls.gov http://data.bls.gov/cgi-bin/cpicalc.pl?cost1=200&year1=1934&year2=2014
[10] 26 U.S.C. § 5681(d)
[11] United States v. Freed, 401 U.S. 601, 605-06 (U.S. 1971).
[12] 26 U.S.C. § 5845(f)
[13] U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, National Firearms Act, atf.gov https://www.atf.gov/content/firearms/firearms-industry/national-firearms-act
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, National Firearms Act – Machine Guns, atf.gov, https://www.atf.gov/firearms/faq/national-firearms-act-machine-guns.html
