In order to fully understand the National Firearms Act, we must go back to the decade preceding the enactment of the legislation by the US Congress. Understanding the context in which the legislation was proposed and enacted can give us a much better grasp of what drove this legislation and, not unsurprisingly, why the same issues and circumstances may be relevant today.
The NFA (National Firearms Act) came out of the era known now as the Roaring Twenties. This era had its roots in the economic boom that occurred shortly after the end of World War I and the ratification of the 18th Amendment, which banned the sale, possession, and consumption of intoxicating liquor.
The effect of these three confluences, a booming economy, a period of relative peace, and a national movement to totally prohibit alcohol, led to a black market economy that grew to rival the legitimate economy. This black market economy in illegally imported and manufactured alcoholic beverages became the domain of criminals of all kinds.
With millions of dollars at stake in black market revenues, gang warfare became an everyday affair in many major cities in the U.S. As the level of violence escalated, the public began to demand action.
When the criminal gangs adopted military-style weapons, most notably the Thompson submachine gun, cries for control began to be heard. The result was the National Firearm Act of 1934.
Firearms Included in the NFA
Contrary to popular belief, the National Firearms Act never set out to ban any weapons. The National Firearms Act intended to impose a tax on certain classes of firearms. It targeted a few key things:
- Machine Guns – Machine guns are defined in the National Firearms Act as “any firearm which can fire repeatedly, without manual reloading, by a single function of the trigger.”
- Short Barreled Rifles – This category includes any rifle with a barrel less than 16” long and an overall length of less than twenty-six inches.
- Short Barreled Shotguns – Similar to the short-barreled rifle category, short-barreled shotguns must have a barrel no shorter than 18” and an overall length of 26”.
- Suppressors – Silencers were targeted as well and included any portable device designed to muffle or disguise the report of a firearm.
- Destructive Devices – This category was added in 1968 as part of the Omnibus Crime Control and Safe Streets Act of 1968. This restricted the sale of any type of explosive material or device and any gun with a bore over .5 inches except for shotguns, which were deemed to have legitimate sporting purposes.
How it Was Supposed to Work
In theory, the National Firearms Act did not prohibit the manufacture, sale, or transfer of any of the weapons categorized in the original bill. The requirement was that a tax stamp and proper paperwork had to accompany each sale or transfer. At the time the act was written into law, the tax was $200.
The concept was that the tax would be so heavy that it would make the manufacture, sale, or transfer of these weapons financially impossible. In effect, this created a new level of bureaucracy in the Federal government and did little or nothing to stop the criminal trade in the firearms covered by the National Firearms Act.
What Really Happened
What really happened is that for several years, both gun manufacturers and the public largely ignored the act. The Department of the Treasury, who was charged with enforcing the National Firearms Act, simply didn’t have the administrative or field forces necessary to effectively enforce the new law.
When enforcement did begin in earnest, the usual method was for the Treasury Department to gather enough evidence to pass to the State judicial officials who would then prosecute the case in state courts. This was effectively destroyed in 1968 when the Supreme Court nullified this practice as unconstitutional under the Fifth Amendment to the Constitution. This ruling made the National Firearms Act virtually unenforceable the way the Treasury Department had been administering the law.
The U.S. Government Reacts – Title II of the Gun Control Act of 1968
In 1968 Congress passed into law a series of amendments to the 1934 National Firearms Act. The object was to cure the problem in the enforcement and prosecution of the controls. The single most important part of this amendment process was the removal of any mechanism for the owner of an unregistered and untaxed National Firearm Act weapon to legally register that firearm.
The Noose Gets Tighter – The Firearm Owners’ Protection Act of 1986
Congress further tightened the restriction on the ownership, manufacture, or sale of firearms under the amended National Firearms Act. This included:
- Broadening the definition of a silencer or suppressor to include parts or items that are intended for the assembly or fabrication of a silencer
- Prohibitions on the transfer or possession of machine guns except for government agencies.
- Exemptions for National Firearms Act weapons possessed before May 19, 1986.
The effect of these changes was to virtually freeze the manufacturer of National Firearm Act covered weapons. Since no new NFA covered guns could be sold or transferred except to governmental agencies, the supply of existing NFA registered weapons became static. Prices began to climb on the legal weapons still available and continue to escalate today.
Where We Are Today – Can I Legally Own a Machine Gun?
The simple answer is that you absolutely can. There is no real legal prohibition on the individual ownership of a machine gun, or any other weapon or device listed in the National Firearms Act and its subsequent amendments. However, there are some legal hurdles to cross and financial considerations.
As an individual, you do not have to hold a Federal Firearms License. If you are in the business of reselling or trading National Firearms Act weapons or devices, however, you must hold a Federal Firearms License and pay the Special Occupancy Tax required. As an individual, member of an LLC or other corporate entity, you may still possess and use such weapons provided you hold the required tax stamp.
How Do I Get a Tax Stamp?
You fill out the required application and the supporting documentation and submit it to the BATF. If everything meets their requirements and you pay the $200 tax fee, you will be issued a tax stamp for the National Firearms Act gun you want to own.
Typically, there are three means of getting a tax stamp from the Bureau of Alcohol, Tobacco, and Firearms, giving you the privilege of possessing that weapon. Surprisingly, the tax stamp fee has not gone up since the original National Firearms Act was imposed. The Tax stamp still requires a $200 fee. The three ways most people approach applying for a tax stamp are:
- As an individual (which can be quite problematic)
- Through a family trust (we highly recommend establishing a NFA Gun Trust. Gun Trust NFA makes this process extremely simple and hassle-free)
- By forming an LLC to own the firearm and hold the tax stamp
Most people in the US choose either a family trust or an LLC as the entity that will hold ownership of the National Firearms Act weapon and the tax stamp that accompanies it.
Are Machine Guns Still Available?
Absolutely. There is a healthy market around NFA identified weapons. All these guns have been manufactured, with a few small exceptions, after the 1986 amendments were put into place. Any time you create a growing market where the supply is fixed or limited, the result is an escalation of prices.
Since 1986, the market prices of those legally registered National Firearm Act guns has skyrocketed. Yes, you can still purchase a legally registered machine gun. The tax stamp to do the transfer is still only $200. However, the financial demands have put the ownership of a machine gun well out of reach – put simply, the supply is far smaller than the demand, thus the price has risen greatly.
What Happens If I Have an Unregistered Machine Gun?
You have several options and face some serious trouble at the same time. If you come into possession of a machine gun, or any other NFA covered firearm, you are legally obligated to tell the BATF. There are then several options open to you.
- You are protected by the Fifth Amendment if you report finding or coming into possession of an unregistered National Firearms Act weapon within some exceptions.
- If you can prove that the firearm was manufactured before May 19, 1986, you may be able to pay the tax stamp fee and register the weapon and keep it.
- If you prove unable to meet the requirements of the National Firearms Act to possess the weapon or you can’t prove the manufacture date, you must surrender the firearm to the BATF.
- Under some circumstances, you can choose to render the firearms inoperable, making it a museum or collectible. This usually involves cutting or filling the barrel, cutting the receiver so that the action will no longer operate, or other methods of rendering the gun unshootable.
A Word of Caution
Being found in possession of a National Firearms Act weapon with no registration or tax stamp opens you to some serious legal problems.
- Being caught with an unregistered National Firearms Act weapon strips you of your Fifth Amendment protections. You are open to the full fury of the Federal judiciary.
- You have become subject to being prosecuted for a Federal offense that can include punishments such as:
- Spending up to 10 years in a federal penitentiary
- Forfeiture of firearms that are in violation of the National Firearms Act
- Revocation of your right to own firearms in the future
- Financial penalties of $10,000 for some violations of the tax act
- Further fines of up to $500,000 dollars for tax evasion
Obviously, the BATF and the Federal judiciary take these matters seriously. You can be vigorously prosecuted if you are caught in possession of a National Firearms Act covered device illegally.
What Has Been the Overall Effect of the National Firearms Act?
Since its inception, there have been court challenges to the constitutionality of the National Firearms Act and its subsequent amendments and additions. To date, all these challenges have been defeated, mostly at the US Supreme Court level, which has upheld the constitutionality of the amended National Firearms Act.
The overall effect of the National Firearms Act and the changes that have been made have:
- Increased federal government bureaucracy
- Effectively eliminated the manufacture of fully automatic firearms in the United States
- Imposed registration and sometimes overbearing demands on otherwise legal owners to keep their National Firearms Act devices
- Led to the inflation of prices on fully automatic weapons in the marketplace
- Had no appreciable effect on gun violence or the possession of machine guns and other National Firearms Act devices by the criminal element
Looking Ahead – The Gun Control Issue in the United States
The National Firearms Act was the US Government’s first attempt at gun control. The stated objective in the arguments that led up to the passage of the National Firearms Act in 1934 was to stem the growing violence in the streets of American cities by using the power of the tax to control the ownership and transfer of these firearms.
If this was the goal, then the passage of the National Firearms Act has been a dismal failure. This realization brings some sobering truths about the current social and political landscape in the United States.
The Call for Gun Control – Louder and More Insistent
Calls for more gun control, tighter restrictions, and more government oversight grow each year in the United States. Advocates for gun control seem to ignore the realities of any sort of legal method for stemming the growing violence seen in many urban areas. The historical truth that prohibition doesn’t work and is unenforceable has no bearing on those who want to see the Second Amendment stripped of its power.
Looking back, it was the violence perpetrated openly in American cities that triggered the National Firearms Act. The final tipping point seems to have been the terrible slaughter that occurred in Chicago on February 14th, 1929. Six mobsters were brutally murdered on Chicago’s Northside and the calls for an end to the gangster violence escalated.
We face a similar situation today. Many large urban centers are plagued with unprecedented levels of street violence despite some of the most draconian gun control measures being put into place.
Is History Repeating Itself?
The intense street violence in many urban areas over the past few years has driven more and more calls for restrictions on the rights every American enjoys under the Second Amendment of the Constitution. These calls seem to ignore historical evidence that such legalistic maneuvers have no effect on the violence or the elements perpetrating that violence.
The truth is that only law-abiding citizens comply with these laws. The criminal element simply ignores them, and our law enforcement officials have no effective way of policing or stopping these elements. The criminal will continue to be a criminal and will get the guns that they desire to further their ambitions.
The National Firearms Act and the Future
More legislation, more laws, and more prosecutions will not, in the estimation of many experts, have any appreciable effect on the street violence plaguing our cities. The problem is not the gun. The problem is rooted much deeper in our culture and our society.
The National Firearms Act served as the springboard for governmental restrictions on basic rights guaranteed in the Constitution. Without vigilance and proactive involvement by law-abiding Americans, the National Firearms Act and its amendments may prove to be the springboard from which gun control advocates launch even more ambitious assaults on our rights.If you have any NFA items or would like to in the future, we highly encourage you to establish a NFA Gun Trust. At Gun Trust NFA, we make this simple and straightforward, and help you every step of the way when setting up your Trust. We encourage all Americans to exercise their Amendment rights, in order to be as safe and secure as they deem necessary.