The Plot Thickens: SilencerCo Weighs in on the NFA

A few weeks ago, we posted on the recent ruling in the Northern District of Texas and how it potentially impacts the future of the NFA and how we enjoy certain items—suppressors, SRBs, SBSs—now that the tax stamp disappeared late last year.

SilencerCo, one of the foremost purveyors of suppressors and a company whose products have been featured on myriad UN12 featured firearms, has now weighed in with an official statement in light of the ATF’s comments on the subject earlier this month.

We are continuing to monitor the situation, but we think this statement sums things up nicely. Titled “ATF Opens the Door for Every American: What ATF’s October 9 announcement means for your next suppressor,” the press release is reproduced here in its entirety: 

West Valley City, Utah—In August, we celebrated one of the most impactful victories directly affecting suppressor ownership since the NFA was enacted in 1934. On October 9, the celebration returned following ATF’s announcement that it will no longer enforce the NFA’s requirements regarding making or transferring suppressors, short-barreled rifles (SBRs), short-barreled shotguns (SBSs) and “any other weapons” (AOWs). 

Also, ATF will no longer enforce the requirement that these items be registered in the National Firearms Registration and Transfer Record. According to ATF, these policies apply to anyone otherwise subject to these requirements, not just the plaintiffs in the litigation. 

We fought, we won. Now, that victory belongs to every American, and we think that’s worth celebrating. Quietly, of course. Very, very quietly. 

So what does this mean for Americans? 

Except where prohibited by state law, ATF does not care if you:

• Purchase a suppressor, SBR, SBS or AOW without ATF approval under the NFA.
• Make a suppressor, SBR, SBS or AOW without ATF approval under the NFA.
• Skip federal registration. ATF no longer enforces the requirement that these items be registered in the National Firearms Registration and Transfer Record.
• Own an unregistered suppressor, SBR, SBS or AOW. ATF will not enforce the NFA’s prohibitions on making, receiving, transferring or possessing unregistered items, other than the prohibitions on possessing firearms with obliterated serial numbers and those illegally imported (26 U.S.C. § 5861(h) and (k)).
• Skip the NFA marking requirement on items you make, though Gun Control Act serialization requirements remain in place.
• Take an unregistered suppressor or AOW across state lines without federal NFA paperwork. 
• Register voluntarily. ATF will still accept Form 1 applications to make or register these items, and Form 3 or Form 4 applications to transfer or register them. Manufacturers may still report the manufacture of these items on a Form 2.
• Buy SBRs and SBSs from dealers. ATF says it is working on regulations to authorize dealers to transfer SBRs and SBSs under the Gun Control Act. In the meantime, ATF will not enforce 18 U.S.C. § 922(b)(4) and its requirement for specific Attorney General authorization.

ATF’s update lists five limits on this change:

• Enforcement regarding taxes on businesses remains in effect. Anyone in the business of manufacturing, importing or dealing NFA items must still pay the NFA Special Occupational Tax.
• Enforcement of requirements regarding machine guns and destructive devices remains unchanged. They are still subject to the $200 tax, and all NFA provisions still apply to them.
• Suppressors, SBRs, SBSs and AOWs remain firearms under the Gun Control Act. Prohibited persons cannot possess them, and all GCA recordkeeping and background check requirements will continue to be enforced.
• SBRs and SBSs still need a Form 20 to cross state lines, even if they aren’t registered.
• State and local law remains applicable. ATF says most states prohibit possessing some or all NFA items, often with exceptions for items registered under federal law. Prior to purchasing, and before transporting an unregistered item across state lines, consult with your local government officials or an attorney. ATF says it is unclear whether state courts will apply the federal safe-passage law (18 U.S.C. § 926A) to unregistered NFA items. Dealers also still can’t transfer firearms in violation of state or local law.

Crossing State Lines With an Unregistered Suppressor
Following the August court ruling, we encouraged Form 4473 customers to keep their suppressors in the state of purchase until further guidance was provided. ATF’s October 9 update explicitly states that ATF will not enforce 26 U.S.C. § 5861(j), the NFA’s ban on transporting unregistered items across state lines. That applies to everyone, not just the plaintiffs in the underlying litigation. 

What does that mean for you? ATF does not care if you take an unregistered suppressor or AOW across state lines without federal NFA paperwork, whether you’re traveling for a competition or range trip, moving to a new state, or sending your can in for service. If you plan to bring an SBR or SBS, you’ll still need to file a Form 20 first, even if it’s unregistered.

It is important to keep in mind that although federal enforcement has changed, states continue to regulate their own systems. Know your state’s suppressor laws before purchasing a suppressor, and be sure to check the laws of each state that is part of your travel plan, including those you will be traveling through, prior to departure. If you are uncertain about what to do, contact an attorney specializing in firearms laws within your state.

Why We Keep Fighting
October 9 was a major step forward, but it isn’t the finish line. ATF’s guidance is a decision not to enforce parts of the NFA, not a repeal of the law itself, and ATF was clear about what that means. A policy decision can be reversed, so our goal hasn’t changed: we seek a permanent solution. Every win gets us closer, and we intend to finish the job to ensure the caveats included in the materials ATF provided on October 9 are non-issues in the future. Those caveats include:

Material changes in legal or factual circumstances could cause NFA enforcement to resume. For example, Congress could impose a new tax on NFA firearms, the district court’s injunction could be dissolved or overturned, or the Department could rescind the enforcement guidelines.

The NFA treats unregistered firearms as contraband. Individuals who make, possess, transfer, or receive unregistered NFA firearms are subject to felony penalties and forfeitures. 26 U.S.C. §§ 5861, 5871, 5872; 49 U.S.C. §§ 80302, 80303.

Additionally, ATF explained that:

• Federal law does not generally permit subsequent registration of unregistered NFA items nor are there provisions that would automatically grandfather unregistered NFA firearms.

There is no good parallel to this groundbreaking guidance, and as a result SilencerCo cannot reliably provide a risk assessment based on these caveats. We urge everyone involved to make their own risk assessment and decision as to whether to rely on ATF’s guidance.

Nothing in this communication is or should be considered legal advice. We encourage anyone who has legal questions to seek the counsel of their own attorney. 

It really does matter where it’s made, now more than ever, and the Silencer Shop Foundation v. ATF victory is evidence of that. Not only are we delivering the best cans in the world, we are continuing to put our money directly into the fight for American firearms freedoms. That’s something worth celebrating.

Quietly, of course.

SilencerCo
URL: silencerco.com