Expert: Robert P. Firriolo - 9/20/2010

Question
QUESTION: I am currently 26, but when i was 15/16 my parents hired a lawyer and had him enter a plea of no contest to a felony theft charge. I was charged as a minor to the best of my knowledge, and ordered to complete deferred adjudication probation and a number of community service hours. Upon completion the charges were to be deferred. I successfully completed my sentence and although it has not come up with any civilian employment, it has prevented me from serving in active military service. Instead I serve with the Army National Guard. I legally purchased a .45 about 4 or 5 years ago, although there was a short delay during the background check, it finally cleared and the pistol was released to me. I now live in Arizona, and I have recently been contemplating/playing with the idea of purchasing some NFA Firearms, specifically an automatic rifle or two and possibly some suppressors, to make teaching my boys to shoot a bit safer for them, (I do not want their hearing damaged, especially at their young ages.) My question is - Would I need a class 3 FFL to obtain these items for personal use, since I do not intend to be a dealer? If so, would the felony situation I described above prevent me from obtaining said license since I was a juvenile at the time and charged as a minor? If I would not require said license, what would be the proper procedure to lawfully obtain said items? I know that since the Class 3 FFL is a federally issued and regulated license, the states are almost irrelevant, aside from whether or not they allow Class 3 FFLs and NFA items to be owned, but I want to make sure you have all the information possible, so once again, i currently live in Arizona, but the criminal incident happened in Texas some 10-11 years ago.

ANSWER: An individual who is not prohibited by Federal, State, or local law from receiving or possessing firearms may legally acquire NFA firearms (including machineguns) by transfer of a registered weapon from its lawful owner residing in the same State as the transferee after approval by ATF. Since you apparently passed a NICS check when you purchased a handgun, you do not appear to be a prohibited person.

Being a federal firearm licensee is not required. Here is the transfer procedure for one who is not a dealer, manufacturer or importer:

ATF Form 4 (5320.4) must be completed, in duplicate. [http://www.atf.gov/forms/download/atf-f-5320-4.pdf] The transferor first completes the face of the form. The transferee completes the transferee’s certification on the reverse of the form and must have the “Law Enforcement Certification” completed by the chief law enforcement officer.

The transferee is to place, on each copy of the form, a 2-inch by 2-inch photograph of the transferee taken within the past year (proofs, group photographs or photocopies are unacceptable). The transferee’s address must be a street address, not a post office box. If there is no street address, specific directions to the residence must be included.

If State or local law requires a permit or license to purchase, possess, or receive NFA firearms, a copy of the transferee’s permit or license must accompany the application. A check or money order for $200 shall be made payable to ATF by the transferor. All signatures on both copies must be in ink.

Fingerprints also must be submitted on FBI Form FD-258, in duplicate. Fingerprints must be taken by a person qualified to do so, and must be clear and classifiable. If wear or damage to the fingertips do not allow clear prints, and if the prints are taken by a law enforcement official, a statement on his or her official letterhead giving the reason why good prints are unobtainable should accompany the fingerprints.

Forward the completed application and appropriate tax payment to the Bureau of ATF, P.O. Box 73201, Chicago, IL 60673.

Transfer of the NFA firearm may be made only upon approval of the ATF Form 4 by the NFA Branch. If the application is approved, the original of the form with the canceled stamp affixed showing approval will be returned to the applicant. If the tax application is denied, the tax will be refunded.

Upon approval of the ATF Form 4, the transferor should transfer the firearm as soon as possible, since the firearm is now registered to the transferee.






---------- FOLLOW-UP ----------

QUESTION: Mr. Firriolo,
Thank you for answering my question in such a timely manner. Honestly I expected a much longer delay, so it was a pleasant surprise to have received it so quickly. I am pleased to know that I should be able to obtain the items in question (Assuming compliance from the local CLEO and approval from the BATFE,) my next question is are there any limitations on what types of firearms may be purchased (ie Assault Rifles such as the FNH Scar 16/17, or any other type assault rifle manufactured after the '89 Bush Ban) or is the selection limited to domestic and grandfathered imports only?

Answer
The "'89 Bush Ban" is irrelevant to the purchase of a machine gun. That was an import ban on certain semiautomatic rifles and shotguns, not on true machine guns. Semiauto rifles deemed "non-sporting firearms" are still prohibited from importation under sections 922(l) and 925(d)(3) of the Gun Control Act.

Under the import ban, all provisions of the National Firearms Act (NFA) relating to registration and transfer of machine guns, short-barreled rifles, weapons made from rifles, short-barreled shotguns, weapons made from shotguns, "any other weapons" as defined in 26 USC section 5845(e), silencers, and destructive devices still apply. However, it is now lawful to possess NFA firearms that are also "semiautomatic assault weapons," as long as all provisions of the NFA are satisfied.

For example, USAS-12 and Striker12/Street-sweeper shotguns are still classified as destructive devices under ATF Rulings 94-1 and 94-2 and must be possessed and transferred in accordance with the NFA.

If a machine gun was lawfully registered and possessed before May 19, 1986, it may be transferred pursuant to an approved ATF Form 4 (5320.4). Anything manufactured after that date, such as the select-fire FNH Scar, may not be registered.

Please review the ATF FAQ on NFA Firearms for more information:

http://www.atf.gov/firearms/faq/national-firearms-act-firearms.html