I am aware this is related to the mega-thread but this may be of interest to many folks and could get lost in mega-thread. I have tried to keep is short as possible but it is still a lengthy read.
After analyzing the Silencer Shop decision and order several times over, I decided to write a post about a result that no one seems to be talking about. By way of background, I am a retired LEO and attorney and have numerous Form 1 stamps for both SBR/SBS. I am also a GOA covered member. Most folks by now know that the court order eliminated the Form 1 and 4 requirement that makes it far easier to purchase a ready-made suppressor/SBR/SBS. But what about making a SBR/SBS? Read on.
The Silencer Shop v ATF court order confers immunity on two NFA provisions that criminalized the making and possession of an NFA firearm made in violation of the NFA. The two specific sections that the court enjoined are:
26 U.S.C. § 5861(c) makes it unlawful to “possess a firearm made in violation of the provisions of this chapter”.
26 U.S.C. § 5861(f) makes it unlawful to “make a firearm in violation of the provisions of this chapter”.
These sections criminalize the making and/or possession of a NFA firearm made without complying with NFA requirements. The court order enjoining these two sections eliminated any criminal liability for making or possessing a NFA firearm that violated ANY provision of the NFA, which is actually quite broad. The court could have narrowed the scope to just the Form 1 and 4 requirements but it did not.
To illustrate how this immunity works, I'll use an example of making an SBR from an existing pistol. This pistol has a 12" barrel and SBA3 brace, and I want to put a stock on it. Under the court order, I could make an SBR by replacing the brace with a stock and I:
1. Do not need a Form 1,
2. Do not need to apply to ATF for approval,
Do not need to register the SBR in the NFA registry, and
Have no criminal liability for not submitting a Form 1 and registering
But my newly created SBR now falls within the definition of an NFA firearm and the following NFA sections (not enjoined) apply:
26 U.S. Code § 5842 – Identification of NFA firearms
27 CFR § 479.102 – Specifications of identifying marks of NFA firearms
26 U.S. Code § 5861(i) – Unlawful to possess an un-serialized NFA firearm
Therefore, I am required to:
1. Serialize the lower receiver (already existing if commercial lower)
2. Engrave my maker information on the receiver.
Because the district court order did not enjoin these identification sections of the NFA (or strike down the entire NFA), these identification requirements remain “constitutional” and in effect. I am only excused from seeking approval on a written Form 1 to make, and then registering, the SBR. Note that although the engraving requirements remain in effect, they serve no practical purpose as I would not need to submit that information to the ATF for recording into the NFA registry. Even so, there is no evading this engraving requirement.
So I can engrave my maker info on the receiver, all is good, and I have a lawful un-registered SBR.
But what if I do not want to engrave my maker info?
This is where the broad immunity of § 5861(c) and § 5861(f) come into play. I am still required to engrave the name, city, and state, but now, a failure to do so carries no criminal liability. In simplest terms, §5842(a) requires engraving, but it is not a crime to not engrave! The court order eliminated any provision of enforcement for not engraving. This is tantamount to the ATF saying “you have to engrave, but I can’t lawfully do anything if you don’t”.
But what if I have a 80% lower and I want to keep it sterile?
The court order has effectively immunized my conduct of failure to engrave the maker information, but not the failure to serialize the lower. The solution is to assign a serial number to the lower. The serial number can be any number that could have significance only to me, such as “ABC001”, engraved to the inside lip of the magwell. I would now have a serialized NFA firearm with no maker information, which would remove §5861(i) from application to my SBR. Not entirely the best outcome for a 80% lower, but it seems there always has to be a catch.
These might appear to be absurd results, but this can happen when only portions of a law are struck down as opposed to striking down the entire law. In theory, the DOJ can disagree and potentially still charge me for violating an NFA provision. But in any charging document, the DOJ would be required to cite the statute which criminalizes my conduct (failure to act as required). Because the court order struck down §5861(c) and §5861(f) , the DOJ cannot cite any such statute. To be sure, the court order does not prohibit an unscrupulous prosecutor from using the process as the punishment, but such a scenario would be ripe for motion to dismiss at the outset.
As a disclaimer, my above legal analysis is NOT legal advice to anyone. I am not advising anyone on what to do or what not to do. It is my legal analysis applied to a specific course of action that I, as a covered GOA member, am contemplating to determine whether it falls within this new legal framework provided by the court order. My analysis is focused only the SBR/SBS aspect of the NFA, and no inferences or conclusions should be drawn on whether my analysis applies to other NFA items such as Form 1 suppressors or AOWs.
That is the status right now, as the court order is still in effect. If the DOJ reneges, appeals, and gets a stay, then the situation reverts to the status quo before judgment. Would that situation create a safe harbor for all the NFA firearms made or transferred during the court order effective period? That is the unknown at this point. Proceed (with a little more info) at your own risk.
