What is the NFA, and Why Should I Care?

There is an obscure tax statute that affects nearly everything in the firearm space from firearm manufacturing to sales and ownership. This statute is 26 U.S.C.A. §§ 5801-5872, more commonly called the “National Firearms Act,” or “NFA.” The NFA, first enacted in 1936, subjects several types of firearms to special taxes and heightened rules. This post will provide you with a crash-course in what the NFA is, what it regulates, and introduce some of the legal responsibilities that it places on firearm owners.

The NFA regulates six classes of weapons: machineguns, [1] destructive devices, short-barreled shotguns, short-barreled rifles, silencers, and the nebulously defined “any other weapons.”

• Machinegun: “Any weapon which shoots . . . more than one shot, without manual reloading, by a single function of a trigger.” 26 U.S.C.A. § 5845(b). This can be a more complex area of the law that one might initially expect with the advent of items such as “bump stocks” and “forced-reset triggers.” We will get deeper into those nuances in a later post.
• Destructive Device: This is a broad category that succinctly boils down to “things that go boom.” Some examples include cannons (typically defined as a weapon with a bore larger than .50 caliber), grenades, mines, and other explosive weapons. See 26 U.S.C.A. § 5845(f).
• Short-Barreled Shotgun: “A shotgun having one or more barrels less than eighteen inches in length . . . if such a weapon as modified has an overall length less than twenty-six inches.” 18 U.S.C.A. § 922(a)(6).
• Short-Barreled Rifle: “A rifle having one or more barrels less than sixteen inches in length and any weapon made from a rifle . . . if such weapon, as modified, has an overall length of less than twenty-six inches.” 18 U.S.C.A. § 922(a)(8).
• Silencer: “Any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.” 18 U.S.C.A. § 922(a)(25).[2]
• Any Other Weapon: This is a nebulous definition primarily aimed at concealed weapons that elude conventional definitions such as “pistol,” or “rifle” and the like. At the risk of being reductive, one could think of these types of weapons as “spy guns” like a gun barrel hidden on a belt buckle or glove. This category is hardly ever relevant in today’s firearm market.

To own any of these NFA-regulated weapons, the owner must first pay $200 to receive a “tax stamp” from the ATF.[3] See 26 U.S.C.A. §§ 5811—5812; 5821—5822. This typically happens in one of two ways: either the prospective owner of an NFA item obtains a tax stamp after purchasing an NFA item but before taking possession of it, or the prospective owner obtains a tax stamp before making an NFA item himself. For example: a buyer purchases a silencer from an online storefront. The storefront then sends the silencer to a Federal Firearms Licensee (FFL) in the buyer’s home state. The buyer then sends an application to ATF for his tax stamp to transfer a firearm under 26 U.S.C.A. §§ 5811—5812. The FFL retains possession of the silencer until ATF sends the buyer his tax stamp. Once the buyer has his tax stamp, he brings it to his FFL, who then transfers the silencer to the buyer.

Alternatively, a person may “make” his own NFA item. This is particularly common with short-barreled rifles, as “making” a short-barreled rifle is usually as simple as installing a stock on a weapon that was previously considered a “pistol.”[4] In this instance, the buyer would purchase a “pistol,” and then apply to ATF for his tax stamp as a “maker” of a firearm under 26 U.S.C.A. §§ 5821—5822. Once the buyer has received his tax stamp, he can then legally install a stock on the pistol, converting or “making” it into a short-barreled rifle. One this is done, the buyer must have the newly made rifle engraved with the buyer’s name and the city in which he made the rifle.

Even after obtaining a tax stamp, owners of NFA items remain subject to several rules which they must navigate to avoid legal trouble. The two most relevant are (1) an owner of an NFA item may not remove the NFA item from the state of its manufacture without notifying ATF, see 26 U.S.C.A. § 5861(j); or transfer the NFA item to another person (including a temporary loan) without the recipient also receiving a tax stamp of his own. See 26 U.S.C.A. § 5861(b)—(e).

In plain English, the owner of an NFA item must ask permission to take his NFA item out of state, or to loan the NFA item to another person, even if that loan is only for a limited time. The NFA item must stay with the person whose name appears engraved on the NFA item, in the state engraved on the NFA item. This can create problems if multiple people intend to use an NFA item, or when the owner of an NFA items dies.

The penalties for violating this regulatory framework are severe. Penalties can include prison sentences up to ten years for a first violation, or up to twenty-five years for subsequent violations. See 18 U.S.C.A. § 924. If you want an NFA item, you should be aware that the consequences for neglecting your legal responsibilities can be dire. You should therefore take great care to avoid any possible violation and take your responsibilities seriously.

To sum-up, the NFA classifies and regulates six categories of firearm: machineguns, destructive devices, short-barreled shotguns, short-barreled rifles, silencers, and the nebulously defined “any other weapons.” To own a weapon in any of these categories, the prospective owner must first obtain a “tax stamp.” Once the owner has the tax stamp and the weapon in question, he must then follow numerous other regulatory restrictions on who may use his weapon and where. The restrictions placed on American firearm owners by the NFA may rightfully be considered unreasonable and burdensome. Restrictions on barrel lengths seem particularly arbitrary. Nevertheless, the NFA remains in force and responsible, law-abiding firearm owners must be aware of its requirements and comply therewith.

[1] The NFA mysteriously combines the two words into a single, compound word, “machinegun,” so I will do likewise here.

[2] Additionally, because silencers are included and specifically defined under the NFA, they are considered firearms themselves for the purposes of other statutes such as interstate sale, transfer, and prohibited persons.

[3] The $200 tax was recently reduced to $0.00 for short-barreled rifles, short-barreled shotguns, and silencers. We will discuss this at length in a later post.

[4] In reality, the “pistol” in this hypothetical is a rifle that has been marketed and sold without a a shoulder stock. ATF has defined such weapons as “pistols” because without a stock they are not meant to be fired from the shoulder as a rifle is. In practical terms, “pistols” of this type exist as a way to navigate the NFA as outlined here.