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MYTH BUSTERS --
COMMON MISCONCEPTIONS ABOUT
THE GUN CONTROL ACT of 1968
This is our second installment of our Myth Busters series. Our first installment addressed common myths of the National Firearms Act. In this article, we address s
ome frequently encountered myths of the Gun Control Act of 1968 (GCA), the federal statute that
regulates interstate and foreign commerce in firearms and ammunition.
MYTH #1
IF A PARTICULAR DEVICE EXPELS A PROJECTILE BY THE ACTION OF AN EXPLOSIVE, IT MUST BE A "FIREARM" SUBJECT TO THE GCA
The definition of "firearm" in the statute covers, in part, "any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive." 18 U.S.C. § 921(a)(3). The word "weapon" is an integral part of the definition. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) takes the position that certain devices that expel a projectile by the action of an explosive are not regulated as "firearms" because they are not designed as weapons. For example, nail guns used in the construction industry use an explosive to expel the nails, but ATF does not regulate them as firearms because they are tools, not weapons. Other unregulated devices include flare guns, tear gas guns, line throwing guns, certain animal tranquilizer devices, and spear fishing guns.
The determination of whether a particular device is a "weapon" is one that must be made by ATF. As indicated in ATF Rul. 1995-3 (relating to 37mm flare guns), the test the agency uses to determine whether a particular device is a weapon is whether it is capable of offensive or defensive use. Questions concerning particular devices should be referred to ATF's Firearms and Ammunition Technology Division.
MYTH #2
FEDERAL FIREARMS LICENSEES, WHEN SHIPPING FIREARMS TO ANOTHER LICENSEE, MAY LAWFULLY SHIP ONLY TO THE ADDRESS SPECIFIED ON THE TRANSFEREE'S LICENSE
There is no provision in the GCA or its implementing regulations that requires federal firearms licensees (FFLs) to ship firearms to another FFL only at the address specified on the transferee's license. FFLs may lawfully ship to another FFL at any address. There are a number of reasons FFLs may not want firearms delivered to the address on their license, including the fact they have a separate storage location or they are licensed at their residence but are not home to accept deliveries during the day. We are aware that some common and contract carriers will only deliver firearms to the licensee's licensed premises. This practice is intended to prevent diversion of firearms into illicit channels. However, it is not required by law.
MYTH #3
A LICENSED MANUFACTURER MAY "BUFF OUT" AN INCORRECT OR ILLEGIBLE SERIAL NUMBER, AS LONG AS THE FIREARM HAS NOT LEFT THE MANUFACTURER'S PREMISES
The GCA makes it unlawful for any person knowingly to transport, ship, or receive in interstate or foreign commerce any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered or to possess or receive any firearm which has had the serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce. 18 U.S.C. § 922(k).
Altering a serial number that has already been marked on a firearm may be viewed by ATF as a violation of section 922(k). Alterations could consist of buffing out the serial number, remarking a serial number to make it deeper, or making any other alteration to the serial number. Because the statute includes an interstate commerce element, manufacturers and importers may take the position that no violation of the statute has occurred if firearms have not left their premises or otherwise previously moved in interstate commerce. We agree that ATF must prove an interstate commerce element to sustain a violation of section 922(k). However, there are risks to adopting a practice of removing or altering serial numbers even if the firearms have never traveled in interstate or foreign commerce. ATF has consistently advised manufacturers and importers that removing or altering the serial number after it has been marked on a firearm potentially violates the statute, irrespective of the commerce element of section 922(k).
MYTH #4
FFLs MAY LAWFULLY EMPLOY PERSONS WHO HOLD MEDICAL MARIJUANA CARDS IF STATE LAW MAKES IT LAWFUL TO POSSESS MARIJUANA FOR MEDICAL PURPOSES
The GCA makes it unlawful for persons who are unlawful drug users to receive or possess firearms or ammunition. The GCA also makes it unlawful for any person, including an FFL, to sell or otherwise dispose of any firearm to ammunition to any person knowing or having reasonable cause to believe that such person is an unlawful drug user.
In an Open Letter dated September 21, 2011, ATF made it clear that marijuana is listed in the Controlled Substances Act and is prohibited under federal law. This is the case regardless of state law authorizing the possession of marijuana for medicinal or recreational purposes. The Open Letter states that if an FFL is aware an employee or potential firearms transferee is in possession of a card authorizing the possession and use of marijuana under state law, then the FFL would have reasonable cause to believe the person is an unlawful drug user. The Open Letter states that FFLs may not lawfully transfer firearms or ammunition to such a person.
Any FFL employing an individual who the employer knows is in possession of a card authorizing the possession of marijuana under state law should consult with qualified counsel. Allowing such individuals to possess firearms or ammunition in the course of their employment could place the license in jeopardy of revocation.
MYTH #5
FFLS MAY LAWFULLY SELL RIFLES AND SHOTGUNS
TO RESIDENTS OF ANY U.S. STATE
The GCA allows FFLs to sell or deliver rifles and shotguns to nonresidents if the transfer is in person and the sale, delivery, and receipt fully comply with the legal conditions of sale in the seller's state and in the buyer's state. 18 U.S.C. § 922(b)(3). This provision of the statute requires the FFL to determine the conditions of sale in the buyer's state and ensure that all conditions are met. If it is not possible to comply with state law (for example, the rifle in question is restricted as an assault weapon in the buyer's state), then the sale may not be made.
A starting point for this inquiry is ATF's publication State Laws and Published Ordinances-Firearms. However, this publication was last updated in 2011. Consequently, to ensure a transaction is in compliance with current state law, FFLs should locate online versions of the relevant state code and regulations. Violations of section 922(b)(3) are one of the most commonly cited against FFLs during ATF compliance inspections. Taking care to ensure understanding of the relevant and current state law will help avoid violations.
MYTH #6
IT IS UNLAWFUL FOR A FFL TO TAKE UNMARKED FIREARMS INTO INVENTORY
There are still firearms in circulation that were made before the marking requirements of the GCA or its predecessor, the Federal Firearms Act, were effective. Such firearms are usually shotguns or .22 caliber rifles, and they may bear only manufacturer's markings but no serial number. It is not unlawful to possess firearms without a serial number, unless the serial number was removed, obliterated, or altered. However, it is difficult to record and track firearms that bear no serial number. FFLs who record all the information on the firearm will comply with the law. An entry in the serial number column such as "pre-1957 firearm no serial number" will comply with the law and regulations.
ATF has a procedure for assigning a serial number to an unserialized firearm. Although this procedure is not required, it helps FFLs account for firearms in their inventory and avoid any question about the missing serial number. FFLs who wish to utilize this procedure may contact the nearest ATF office.
MYTH #7
ATF INVESTIGATORS HAVE THE RIGHT TO ENTER A LICENSED PREMISES AT ANY TIME TO CONDUCT COMPLIANCE INSPECTIONS
The GCA gives ATF authority to inspect FFLs without a warrant in three specific situations: (1) annual compliance inspections; (2) for purposes of firearms tracing; and (3) for bona fide criminal investigations of persons other than the FFL. All other inspections must be carried out with a warrant or voluntary consent from the licensee.
FFLs should ensure they know the identity of the ATF representatives who arrive at the licensed premises and the purposes for which they are requesting access to the FFL's records and inventory. If investigators are there for a reason other than an annual compliance inspection, this is particularly important. FFLs often feel they must consent to inspections outside the three situations outlined in the statute, but this is not the case. FFLs should consult with qualified counsel before consenting to any inspections by ATF personnel.
MYTH #8
FIREARMS UNLAWFULLY IMPORTED BY A LICENSED IMPORTER MAY BE TAKEN INTO THE INVENTORY OF ANOTHER FFL AS LONG AS THE SECOND FFL HAD NOTHING TO DO WITH THE IMPORT VIOLATION
The GCA (18 U.S.C.
§ 922(l))
prohibits the knowing importation of any firearm or ammunition into the United States, unless the importation is specifically authorized by the import provisions in 18 U.S.C. § 925(d). Section 922(l) also makes it unlawful for any person knowingly to receive any firearm or ammunition imported in violation of the GCA. Thus, purchasers of firearms who know they were illegally imported will violate the law when they
receive
the firearms. This is true even if they had no part in the unlawful importation itself.
MYTH #9
ATF HAS THE AUTHORITY TO REVOKE A LICENSE FOR "WILFULL" VIOLATIONS OF THE GCA ONLY IF THE VIOLATIONS ARE REPEAT VIOLATIONS CITED IN WRITING DURING A PREVIOUS COMPLIANCE INSPECTION
Pursuant to 18 U.S.C. §923(e), ATF has the authority to revoke a license for willful violations of any provisions of the GCA or any rule or regulation prescribed thereunder. Courts have taken the position that a willful violation of the GCA is one that is a deliberate, knowing, or reckless violation of the statute's requirements. To sustain its burden of proof, ATF must prove the licensee knew of the legal obligation and purposefully disregarded or was plainly indifferent to the requirement. In most reported cases ATF establishes willfulness through previous Reports of Violation or warning conferences held with the FFL for the same or similar violations.
However, ATF may revoke a license if the agency has other evidence the FFL was aware of the law or regulation at issue and failed to abide by the requirement. For example, ATF may rely upon a regulations checklist completed by ATF personnel during a license application inspection as evidence of the FFL's knowledge of a requirement. ATF may also rely upon instructions on Form 4473 or another ATF form, information in FFL Newsletters, and published Open Letters or ATF rulings on a particular issue. FFLs should not be complacent about their lack of an ATF regulatory history. If the agency believes a first-time inspection results in significant violations that pose a threat to public safety, ATF may proceed with license revocation.
The above alert is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this alert does not establish, in and of itself, an attorney-client relationship.
Questions about this alert can be directed to:
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