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What Is A Title 2 Firearm?

What Is A Title 2 Firearm?

Destructive Device (DD) – Explosive Ordnance: A destructive device can be one of three things: an explosive, incendiary, or poison gas weapon. This can include bombs, mines, grenades, missiles, rockets and other similar devices. The parts used to build these devices are also included under Title II. None of the states in the Union permit ownership of an explosive ordnance. Examples: Claymore mine, hand grenade, improvised explosive device (IED)
Destructive Device (DD) – Large Bore Firearms: This type of firearm is described as a projectile weapon with a bore diameter bigger than 50 calibres or half an inch. Non-combat shotguns, flare guns, and antique guns that are not likely to be used as a weapon and made before 1898 are exempt. No state allows for ownership of large bore firearms.

Examples: 20mm rifle, flare launcher with anti-personnel ammunition, Street Sweeper shotgun

Machine Guns: According to the NFA, a machine gun is defined as “any weapon which shoots, is designed to shoot or can be readily restored to shoot, automatically more than one shot without manual reloading, by a single function of the trigger.” This definition includes any frame, receiver, or parts to make a machine gun. The State of Iowa does not allow machine guns. Examples: AK-47 rifle, M16 rifle, M4A1 rifle

Short-Barrelled Rifles (SBR): A rifle is a shouldered firearm that has spiral grooves inside the gun barrel and can fire one bullet at a time. A short-barrelled rifle has a barrel of less than 16 inches or overall length of less than 26 inches, as defined by the NFA. This also includes any weapon made from a rifle that is of the same dimensions. The stock must be extended on folding stock rifles when measuring the length. Pistols with shoulder stocks may be considered a short-barrelled rifle if they meet other requirements. Check with experts like those at Wendl’s Weapons if you are unsure about your firearm. Examples: semiautomatic Glock pistol with shoulder stock, Wilson Combat SBR Tactical rifle, sawed-off rifles

Short-Barrelled Shotguns (SBS): An SBS is any shotgun having a barrel less than 18 inches long, or any weapon made from a shotgun that is less than 26 inches long. A shotgun is a shoulder-fired, smooth bore firearm. Examples: H&K Fabarm FP6, Seraphim Armoury 9″ SBS, customized “sawed off” shotguns

Silencers: A silencer or suppressor is any device that is used to muffle or diminish the sound of the gunshot of a portable firearm. This also includes any parts used to build a silencer or suppressor. Examples: Gemtech MIST25, AAC Element 4, YHM Sidewinder

Any Other Weapon (AOW): This is a miscellaneous weapons category. According to the NFA, an AOW is ” any weapon or device capable of being concealed on a person from which a shot can be discharged through the energy of an explosive.” Examples: a cane gun, a pen gun, pistol with a forward grip

Penalties for Violating the NFA

Trying to get around the NFA isn’t recommended, as the penalties are severe. A conviction results in a felony on your record and is punishable by up to ten years in prison and/or a $10,000 fine. Even first offenders will probably see jail time. In addition, any weapon that is in violation of the NFA is subject to civil forfeiture. Using a machine gun or silencer while committing a violent crime or drug crime can add thirty years to your sentence, even if the NFA is not violated.
• The state with most machine guns per capita is New Hampshire, with 7.4 for every 1,000 residents. New Hampshire also happens to have the lowest murder rate.
• In Wyoming, which has a population of only about 600,000, there are over 100,000 “destructive devices” registered. I have not managed to figure out why, but there must be an interesting story there.
• Washington D.C., which does not appear on the map, has the second highest number of NFA weapons per capita, with 62 per 1,000 residents.
• Oklahoma‘s total NFA registrations are lower than the national average, but the number of silencers registered is the second highest per capita.
• California is well known to have some of the strictest gun control laws in the U.S. Yet, it ranks #2 in terms of total number of registered weapons (Texas is #1). Ironically, many of these weapons are owned by Hollywood, an industry that includes some of the loudest voices supporting gun control.
• Arizona, one of the states that bans nun chucks, ranks #9 overall with 16 NFA-registered weapons per 1,000 residents. The obvious question for Arizona: What is the legality of tying two of these machine guns together, thereby creating a pair of “gun chucks?”
All title 2 firearms are regulated by what’s known as the National Firearm Act or what we refer to as NFA. One could spend months reading about NFA but I’ll hit the major misconceptions… which are, contrary to the assumptions by many individuals AND even law enforcement, that NFA weaponry …
• Is legal in almost every state. Most all 6 categories above are allowed in just about all states within the Continental United States. A few states restrict machinegun ownership, others may restrict short barrelled shotguns (SBSs) or suppressors, etc.
• One does not need to obtain a “Class III” weapons license to own. In fact there really is no such thing as a class III NFA weapons license. When a Title 1 FFL dealer pays what is known as a Special Occupation Tax, he/she then becomes a SOT that can then deal in NFA/Title 2 weapons. SOTs have several classes too and they are based on the type of FFL license you currently hold. The term Class 3 comes from when a normal Type 1 (standard dealer) FFL holder pays his SOT tax. He becomes a Type 3 SOT hence the term Class 3.
• Transferring ownership of an NFA weapon – All NFA weapons regardless of category (machineguns, silencers, etc.) are controlled during their transfer from one person/entity to another. These weapons transfer to another entity on what is called ATF tax forms. Each ownership transfer MUST be approved by the ATF before the transfer takes place. This approval takes sometimes many months. Generally individual transfer is approved in 3-4 months, dealer to dealer in 3-4 weeks. When the ATF approves the transfer, they cancel a tax stamp and this is why you sometimes hear some say class 3 stamp. Transfers from/to individuals require a one time $200 tax stamp to be paid for EACH transfer (AOWs require just a $5 stamp). These are considered tax paid transfers and usually are on an ATF form 4. Dealers can transfer to other dealers using a tax free Form 3. If a person buys NFA weapon(s) or item from someone outside his/her domicile (home) state, the weapon must be transferred 1st to a SOT holder within the buyer’s state, similar to a Title 1 firearm transaction. It must go to a FFL/SOT dealer in the buyer’s state before going to the buyer.
• Making of NFA weapons. In 1986 President Ronald Reagan signed a bill that basically stopped the making of any new machineguns. The Firearm Owners Protection Act, which would loosen restrictions on gun ownership with the reopening of interstate sales of long guns on a limited basis, legalization of ammunition shipments through the U.S. Postal Service (a partial repeal of the Gun Control Act), removal of the requirement for record keeping on sales of non-armour-piercing ammunition, and federal protection of transportation of firearms through states where possession of those firearms would otherwise be illegal, also contained an amendment, The Hughes Amendment, (William J. Hughes D- N.J.) which prohibited civilians from owning any machine gun manufactured after 1986. All the other 5 categories (SBRs, SBSs, Silencers, AOWs and Destructive Devices) however can still be made, even by an individual, if he/she first applies for and receives permission to do so. They will file an ATF Form 1 (maker form) and pay a $200 make tax fee. A civilian can still legally own any machinegun that was created PRIOR to May, 1986 as long as they get approval on the ATF form 4 discussed above. Remember that no civilian can possess a machinegun manufactured AFTER May 1986 except for law enforcement and military so there is a finite quantity available.
• An interesting and widely unknown fact, since the NFA went into effect in 1934, there has only been ONE, yes, ONE single felony committed in the whole United States since 1934 that involved a legally registered NFA firearm. And it was committed ironically by a crooked police officer who went to a drug house and shot someone on the premises. He used his legally acquired UZI sub machinegun to commit the crime. You hear all the time of machineguns and sawed off shotguns in the news but these have all been by individuals possessing an illegal, non registered weapon. There are millions of records of legally owned entries on the NFA registry too, so it’s not like we’re talking just a few hundred or thousand potential individuals.
The ATF forms usually used in dealing with these weapons are …
• ATF Form 1 – Maker Form – used by non manufactures to make NFA weapons – for civilians, only Short Barrel Rifles, Short Barrelled Shotguns, Silencers and AOWs can still be made (after May 1986). The ‘one time’ tax stamp for this form is $200. Maker will received an approved form back from ATF and he/she can then make the item in question. Once made, if transfer of ownership is ever needed, this would be facilitated on a Form 4 below.
• ATF Form 2 – Manufacturer Registration Form – used by manufacturers only.
• ATF Form 3 – Dealer to Dealer tax-free form. Any SOT can transfer to any other SOT tax free NFA weapons he/she has in their possession/ownership. This is usually done when someone buys an item and it is transferred from a dealer in one state to a dealer in the buyer’s state to facilitate the approval/filing process.
• ATF Form 4 – Tax paid to/from individual form – used when a NFA item is transferred TO or FROM an individual. Even if the individual transfers the said item to a SOT holder/dealer, there still is a $200 transfer tax. Once the SOT has it, they can transfer it back out to another SOT holder tax free (Form 3) or directly to another individual in their state on a tax paid (Form 4).
• ATF Form 5 – Used to transfer NFA items to police departments for official use – tax fee transfer. Dealer use only.
• ATF Form 5320 – Used in the Interstate Transportation of all Title II firearms. If you are travelling between states, you WILL need to fill this form out a few weeks in advance. NFA weapons must remain in the possession of the registered owner so short of just a few exceptions; you may not permit anyone to have possession of your weapon without you being in immediate presence.

National Firearms Act

The NFA was originally enacted in 1934. Similar to the current NFA, the original Act imposed a tax on the making and transfer of firearms defined by the Act, as well as a special (occupational) tax on persons and entities engaged in the business of importing, manufacturing, and dealing in NFA firearms. The law also required the registration of all NFA firearms with the Secretary of the Treasury. Firearms subject to the 1934 Act included shotguns and rifles having barrels less than 18 inches in length, certain firearms described as “any other weapons,” machineguns, and firearm mufflers and silencers. While the NFA was enacted by Congress as an exercise of its authority to tax, the NFA had an underlying purpose unrelated to revenue collection. As the legislative history of the law discloses, its underlying purpose was to curtail, if not prohibit, transactions in NFA firearms. Congress found these firearms to pose a significant crime problem because of their frequent use in crime, particularly the gangland crimes of that era such as the St. Valentine’s Day Massacre. The $200 making and transfer taxes on most NFA firearms were considered quite severe and adequate to carry out Congress’ purpose to discourage or eliminate transactions in these firearms. The $200 tax has not changed since 1934. As structured in 1934, the NFA imposed a duty on persons transferring NFA firearms, as well as mere possessors of unregistered firearms, to register them with the Secretary of the Treasury.

If the possessor of an unregistered firearm applied to register the firearm as required by the NFA, the Treasury Department could supply information to State authorities about the registrant’s possession of the firearm. State authorities could then use the information to prosecute the person whose possession violated State laws. For these reasons, the Supreme Court in 1968 held in the Haynes case that a person prosecuted for possessing an unregistered NFA firearm had a valid defense to the prosecution — the registration requirement imposed on the possessor of an unregistered firearm violated the possessor’s privilege from self-incrimination under the Fifth Amendment of the U.S. Constitution. The Haynes decision made the 1934 Act virtually unenforceable.

Title II of the Gun Control Act (GCA) of 1968

Title II amended the NFA to cure the constitutional flaw pointed out in Haynes. First, the requirement for possessors of unregistered firearms to register was removed. Indeed, under the amended law, there is no mechanism for a possessor to register an unregistered NFA firearm already possessed by the person. Second, a provision was added to the law prohibiting the use of any information from an NFA application or registration as evidence against the person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration. In 1971, the Supreme Court re-examined the NFA in the Freed case and found that the 1968 amendments cured the constitutional defect in the original NFA. Title II also amended the NFA definitions of “firearm” by adding “destructive devices” and expanding the definition of “machinegun.”

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Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

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About the Author

People who want a lot of Bull go to a Butcher. People who want results navigating a complex legal field go to a Lawyer that they can trust. That’s where I come in. I am Michael Anderson, an Attorney in the Salt Lake area focusing on the needs of the Average Joe wanting a better life for him and his family. I’m the Lawyer you can trust. I grew up in Utah and love it here. I am a Father to three, a Husband to one, and an Entrepreneur. I understand the feelings of joy each of those roles bring, and I understand the feeling of disappointment, fear, and regret when things go wrong. I attended the University of Utah where I received a B.A. degree in 2010 and a J.D. in 2014. I have focused my practice in Wills, Trusts, Real Estate, and Business Law. I love the thrill of helping clients secure their future, leaving a real legacy to their children. Unfortunately when problems arise with families. I also practice Family Law, with a focus on keeping relationships between the soon to be Ex’s civil for the benefit of their children and allowing both to walk away quickly with their heads held high. Before you worry too much about losing everything that you have worked for, before you permit yourself to be bullied by your soon to be ex, before you shed one more tear in silence, call me. I’m the Lawyer you can trust.