Author Archives: Adam Kraut, Esq.

About Adam Kraut, Esq.

Adam Kraut was born and raised in Chester County, PA. Active in scouting since kindergarten, Adam achieved the rank of Eagle Scout in 2004. After graduating high school, Adam attended SUNY Binghamton where he graduated in 2009 with a major in Political Science concentrating in politics and law. After taking a year away from academics, Adam attended Widener Law School at night while maintaining a day job and graduated in 2014. Adam is an avid firearms enthusiast, whose love for firearms began in Boy Scouts at Camp Horseshoe. Adam’s experience in the firearms industry as the general manager of a Federal Firearms Licensee, who is a Class 3 dealer, gives him a working knowledge of the challenges the industry, licensees and individuals face on a daily basis. Having worked with industry leaders, individual licensees and individuals both from behind the counter and in a legal context, Adam is in a unique position to give advice with insight others may not have. In addition to being active in the courtroom, Adam is politically active to ensure that the Second Amendment rights of future generations continue to be protected. He is the host of The Gun Collective‘s show, The Legal Brief, where he dispels the various legal myths and misinformation in the gun world. Adam is also a frequent guest on The Firearms Radio Network‘s This Week in Guns podcast. In his free time, Adam volunteers with his old Boy Scout troop, cranks out ammunition behind the reloading press, can be found at the range training, enjoys hiking through the woods and cares for his small pack of dogs. Adam lives in Chester County, PA with his girlfriend and three rescue dogs.

4th Circuit Issues Devastating Opinion Regarding “Assault Rifles”

Today the Fourth Circuit Court of Appeals sitting En Banc issued a devastating opinion regarding “assault rifles” in Kolbe v. Hogan. The Fourth Circuit covers Maryland, West Virginia, Virginia, North Carolina and South Carolina.

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Kolbe challenged Maryland’s Firearm Safety Act of 2013 (“FSA”), which bans AR-15s and other military-style rifles and shotguns as well as detachable large capacity magazines, by contesting the constitutionality of the law under the Second Amendment, as well as bringing a Fourteenth Amendment Due Process and Equal Protection claim. (Quick note to the readers, the use of the terms “assault rifles”, “military-style rifles and shotguns” and “large capacity magazines” are being used in reference to the Court opinion and not the author’s belief that these firearms and magazines should be referred to as such).

At the District Court level, the judge ruled that the FSA was constitutional. While analyzing the Second Amendment claims, the Court expressed doubt that “assault weapons” and “large capacity magazines” were protected by the Second Amendment. As a result the Court employed an intermediate scrutiny analysis.

As the case trickled up the Court system, the 4th Circuit issued an opinion from a divided three judge panel which found “that the banned assault weapons and large-capacity magazines are indeed protected by the Second Amendment, and that the FSA substantially burdens the core Second Amendment right to use arms for self-defense in the home.” More importantly, the Court became the first Court in the country to require a strict scrutiny analysis in regard to the Second Amendment claims.

Unfortunately, the Court sitting En Banc had a different idea. It was happy to affirm the District Court’s opinion, “in a large part adopting the Opinion’s cogent reasoning as to why the FSA contravenes neither the Second Amendment nor the Fourteenth.” However, the Court did make an explicit statement that the District Court did not. The Court stated

[w]e conclude — contrary to the now-vacated decision of our prior panel — that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach…Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.

The Court explicitly adopted that intermediate scrutiny was the correct analysis to utilize. “[I]ntermediate scrutiny is the appropriate standard because the FSA does not severely burden the core protection of the Second Amendment, i.e., the right of law-abiding, responsible citizens to use arms for self-defense in the home.”

In its analysis the Court found that “[t]he FSA bans only certain military-style weapons and detachable magazines, leaving citizens free to protect themselves with a plethora of other firearms and ammunition. Those include magazines holding ten or fewer rounds, nonautomatic and some semiautomatic long guns, and — most importantly — handguns.”

Applying the intermediate scrutiny standard the Court found “the FSA survives such review because its prohibitions against assault weapons and large-capacity magazines are — as they must be — ‘reasonably adapted to a substantial governmental interest.’” The Court stated that “Maryland’s interest in the protection of its citizenry and the public safety is not only substantial, but compelling.”

Unfortunately, this means that yet another Court has refused to require a strict scrutiny analysis to a fundamental constitutional right. Perhaps the most troubling aspect is the Fourth Circuit believes that firearms like the AR-15 are not protected by the Second Amendment, opening the door for more restrictive legislation to be put in place and making it more difficult to challenge.

 

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Delaware Backpedals on Concealed Carry Changes

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The Delaware Attorney General’s Office has changed the information which appears on its website in relation to the reciprocity agreements of concealed carry permits with other states. Earlier this week I wrote that Delaware had changed its reciprocity agreements. At the time, the verbiage on the website was very clear (that being all non-resident permits from the states Delaware had agreements with would not be recognized after September 23, 2017).

As a number of readers and commenters on Facebook seemed to be confused as to the applicability of the language, I called the Attorney General’s Office to seek clarification. I was transferred to the individual who would have knowledge of the matter only to receive his voicemail. I followed up the following day only to be transferred back into voicemail. To date, I have not received a call back (which at this point is rather moot). Some time after the original blog article was posted, the website was updated to remove the language that was causing disdain amongst the firearms community.

The new language states that “[t]he list of states with reciprocal privileges is published on January 15 each year. Any additional reciprocal states would be posted on January 15 and be effective immediately. The removal of reciprocal privileges from any state would be posted by January 15 to take effect one year later.”

It goes on to state that the AG’s Office is currently reviewing the approval procedures for individuals in other states to acquire concealed carry permits to see if they meet the requirements of the Delaware Code to be recognized in Delaware. If the AG’s Office determines that they do not meet the requirements, notice will be published January 15, 2018 and the official change in recognition will occur the following year (January 15, 2019).

The AG’s Office does issue an apology for the confusion of the language that was posted from February 10-15th.

As always, we strive to give our readers the best and correct information. If you read the original article and shared it via Facebook, email, or some other method, I hope that you will forward along the updated information so that those around you can be in the know.

 

Do you have a non-resident concealed carry permit and find this article helpful? Be sure to pass it along to a friend who may benefit from the information by using the buttons below. Don’t forget to like Firearms Industry Consulting Group on Facebook by clicking the “Like” button on the right.

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Don’t forget, ballots for the NRA Board of Directors have been arriving. If you have not already voted, please consider voting for me. Voting members are those that are Life members or those who have been annual members for the past 5 consecutive years. If you have not yet received a ballot and you are a qualified member, you may contact membership services to acquire one.

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Delaware Changes Concealed Weapons Agreements (Not for the Better)

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UPDATE (2/17/17 8:42 AM): New Blog with current information related to the change in position from the Attorney General’s Office can be found here.

UPDATE (2/15/17 8:40 PM): After publication of the below article, it appears the language on the Delaware Attorney General’s page was changed to remove the information indicating that Delaware would no longer recognize non-resident permits. I already have a call in to the Attorney General’s Office requesting clarification and will post an update once I receive a response.

 

Delaware’s Attorney General recently updated their website to reflect the changes in their Reciprocity Agreements.

Previously, the website had listed reciprocity agreements with:

ALASKA

ARIZONA

ARKANSAS

COLORADO

FLORIDA

IDAHO
(Enhanced Permits Only)

KENTUCKY

MAINE

MICHIGAN

MISSOURI

NEW MEXICO

NORTH CAROLINA

NORTH DAKOTA

OHIO

OKLAHOMA

SOUTH DAKOTA
(Enhanced Permits Only)

TENNESSEE

TEXAS

UTAH

VIRGINIA
(Reciprocity with VA will be revoked as of 3/1/2016)

WEST VIRGINIA

Now, the website reflects the following changes:

ALASKA

ARIZONA

ARKANSAS

COLORADO

FLORIDA

IDAHO
(Enhanced Permits Only)

KENTUCKY

MAINE

MICHIGAN

MISSOURI

NEW MEXICO

NORTH CAROLINA

NORTH DAKOTA
(Class 1 permits only)

OHIO

OKLAHOMA

SOUTH DAKOTA
(Enhanced Permits Only)

TENNESSEE

TEXAS

UTAH

WEST VIRGINIA

Further, Delaware will no longer recognize non-resident permits issued by any state beginning on September 23, 2017.

As a number of Pennsylvanians have acquired either Florida or Utah non-resident permits in order to be able to carry a firearm in Delaware, it is important they be aware of this impending change as to not unlawfully carry a firearm in Delaware after the change becomes effective. While it is possible for the Attorney General of Pennsylvania (or the state in which you reside) to enter into negotiations with Delaware to secure a reciprocity agreement, it is likely that unless the state has a training requirement to obtain a license, Delaware will not enter into an agreement.

Perhaps the solution to the problem lies in the National Concealed Carry Reciprocity Bill that is currently in committee in the House. I’d encourage you to contact your Representatives and ask them to support the bill.

Do you have a non-resident concealed carry permit and find this article helpful? Be sure to pass it along to a friend who may benefit from the information by using the buttons below. Don’t forget to like Firearms Industry Consulting Group on Facebook by clicking the “Like” button on the right.

 

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Don’t forget, ballots for the NRA Board of Directors have been arriving. If you have not already voted, please consider voting for me. Voting members are those that are Life members or those who have been annual members for the past 5 consecutive years. If you have not yet received a ballot and you are a qualified member, you may contact membership services to acquire one.

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Social Security Administration Publishes Final Rule Relating to NICS Improvement Amendments Act of 2007

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It has been well reported that the Social Security Administration (“SSA”) had been passing along information of individuals that it deemed unable to handle their financial affairs to NICS for the purposes of preventing them from purchasing a firearm due to being “adjudicated as a mental defective.”

In May of this year, the SSA published a Notice of Proposed Rulemaking. It received over 91,000 comments relating to the proposed rule. Of those, 86,860 were identical letters submitted by various individuals of a single advocacy group, opposing the proposed rule.

On December 19, 2016, the SSA published a Final Rule on the Federal Register pertaining to its regulations. While the regulations take effect on January 18, 2017 compliance is not required until December 19, 2017.

Public Comments

There were a number of comments on various issues, which I will recap a few points quickly below before moving on to explain the final rule and its impact.

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Second Amendment and Equal Protection

A number of individuals commented that “these rules would violate the affected individuals’ rights under the Second Amendment to the Constitution, and would also violate their equal protection rights under the Constitution. Most of these comments were provided in largely identical letters, and they asserted that our rules would take firearms away from elderly recipients of Social Security retirement benefits.”

SSA responds stating that “[t]he criteria we will use under these rules do not focus on one age group, such as the elderly or recipients of Social Security retirement benefits, nor do they categorize and treat individuals who are similarly situated differently.” Further, “[w]e do not intend under these rules to report to the NICS any individual for whom we appoint a representative payee based solely on the individual’s application for and receipt of Social Security retirement benefits.”

With regard to the Second Amendment claim, the SSA cites to District of Columbia v. Heller, 554 U.S. 570 (2008) for the proposition that “[l]ike most rights, the right secured by the Second Amendment is not unlimited,” and that “nothing in [the Court’s] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Heller at 626.

Unfortunately, the Heller decision gives no guidance as to what constitutes mentally ill. Is an individual who was diagnosed with OCD “mentally ill”? Where does one draw the line exactly?

Due Process

Individuals commented that the due process rights of the beneficiaries would be violated because the beneficiaries would not be able to appeal the decision prior to the inclusion of their information being reported to NICS, raised concerns about adequate notice being given to the beneficiary who might be reported and argued the costs of pursuing relief should an individual be reported to NICS would be onerous.

SSA responded stating that “[a]ffected individuals will have the opportunity to apply for relief from the Federal firearms prohibitions imposed by 18 U.S.C. 922(g)(4) at any time after our adjudication has become final…we will provide individuals with advance notice at the commencement of the adjudication that we may report their information to NICS if we find they meet the criteria for reporting when the adjudication is final.”

SSA goes on to state that they “will provide oral and written notice to the beneficiary at the commencement of the adjudication, which we define as after we have determined that he or she meets the medical requirements for disability based on a finding that his or her impairment(s) meets or medically equals the requirements of the mental disorders listings, but before we find that he or she requires a representative payee.”

Notice is extremely important and a lot of times never given to individuals. SSA incorporating both oral and written notice to an individual is pleasantly surprising, given a the litany of issues I see where an individual is never told that a finding may result in their Second Amendment rights being taken from them.

Lastly, regarding the cost of pursuing relief, SSA dismissed the concerns by stating they will not impose a fee in connection with a request for relief and that it believes the cost to obtain the evidence it would require for such a request for relief as “reasonable”.

Part of the criteria of the new rule is that the individual appealing the decision will provide the SSA medical evidence in the form of a statement of the individual’s current mental health status as well as their mental health during the preceding five years from the applicant’s primary mental health provider. Such evaluations are typically performed by a psychologist and cost anywhere between $1,500 to $2,000 on average.

Final Rule

In order for an individual to be reported to NICS, they have to meet the five (5) criteria spelled out in Section 421.110.

Adjudicated as a mental defective, in accordance with 18 U.S.C. 922(g)(4), as amended, means a determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: Is a danger to himself or others; or lacks the mental capacity to contract or manage his own affairs.

An individual will have been “adjudicated as a mental defective” if during SSA’s claim development and adjudication process, or when SSA takes certain post-entitlement or post-eligibility actions, SSA will identify any individual who:

  1. Has filed a claim based on disability;
  2. Has been determined to be disabled based on a finding that the individual’s impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments (section 12.00 of appendix 1 to subpart P of part 404 of this chapter) under the rules in part 404, subpart P, of this chapter, or under the rules in part 416, subpart I, of this chapter;
  3. Has a primary diagnosis code in our records based on a mental impairment;

    Primary diagnosis code means the code we use to identify an individual’s primary medical diagnosis in our records. The primary diagnosis refers to the basic condition that renders an individual disabled under the rules in part 404, subpart P, of this chapter, or under the rules in part 416, subpart I, of this chapter.

  4. Has attained age 18, but has not attained full retirement age; and
  5. Requires that his or her benefit payments be made through a representative payee because we have determined, under the rules in part 404, subpart U, of this chapter, or the rules in part 416, subpart F, of this chapter, that he or she is mentally incapable of managing benefit payments.

These criteria will be applied to capability findings that are made in connection with initial claims on or after December 19, 2017 and capability findings that are made in connection with continuing disability reviews (including age-18 disability redeterminations under § 416.987) on or after December 19, 2017. The latter provision will only apply in instances with respect to capability findings in which SSA appoints a representative payee for an individual in connection with a continuing disability review.

If the individual does not meet all five of the aforementioned requirements, then they will not be reported to NICS.

The regulations provide that if SSA determines the person is “mental defective” they will provide both oral and written notice to the affected individual that:

(a) A finding that he or she meets the criteria in § 421.110(b)(1) through (5), when final, will prohibit the individual from purchasing, possessing, receiving, shipping, or transporting firearms and ammunition, pursuant to 18 U.S.C. 922(d)(4) and (g)(4);

(b) Any person who knowingly violates the prohibitions in 18 U.S.C. 922(d)(4) or (g)(4) may be imprisoned for up to 10 years or fined up to $250,000, or both, pursuant to 18 U.S.C. 924(a)(2); and

(c) Relief from the Federal firearms prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)(4) by virtue of our adjudication is available under the NIAA.

If an individual is reported, they may request relief from SSA as to the determination. Per Section 421.150 an application for relief must be in writing and include the information required by § 421.151. It may also include any other supporting data that the SSA or the applicant deems appropriate. When an individual requests relief under this section, SSA will also obtain a criminal history report on the individual before deciding whether to grant the request for relief.

Section 421.151 requires the applicant provide:

  1. A current statement from the applicant’s primary mental health provider assessing the applicant’s current mental health status and mental health status for the 5 years preceding the date of the request for relief; and

    The statement must specifically address:
    (i) Whether the applicant has ever been a danger to himself or herself or others; and
    (ii) Whether the applicant would pose a danger to himself or herself or others if we granted the applicant’s request for relief and the applicant purchased and possessed a firearm or ammunition.

  2. Written statements and any other evidence regarding the applicant’s reputation.

    The statements must specifically:
    (i) Identify the person supplying the information;
    (ii) Provide the person’s current address and telephone number;
    (iii) Describe the person’s relationship with and frequency of contact with the applicant;
    (iv) Indicate whether the applicant has a reputation for violence in the community; and
    (v) Indicate whether the applicant would pose a danger to himself or herself or others if we granted the applicant’s request for relief and the applicant purchased and possessed a firearm or ammunition.

The applicant may obtain written statements from anyone who knows the applicant, including but not limited to clergy, law enforcement officials, employers, friends, and family members, as long as the person providing the statement has known the applicant for a sufficient period, has had recent and frequent contact with the beneficiary, and can attest to the beneficiary’s good reputation. At least one statement must be from an individual who is not related to the applicant by blood or marriage.

The burden is on the applicant to show that he/she is not likely to act in a manner dangerous to public safety and that granting relief from the prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)(4) will not be contrary to the public interest. Assuming those criteria are met, the SSA may grant relief. Unfortunately, the regulation does not state that they shall grant relief.

SSA’s regulations provide that a decision maker who was not involved in making the finding that the applicant’s benefit payments be made through a representative payee will review the evidence and act on the request for relief. If the request is denied, the applicant will have 60 days to file a petition for review in a Federal District Court. If the application for relief is approved, SSA will provide the applicant with written notice as to the reason for their decision, inform them that they are no longer prohibited under 18 U.S.C. 922(g)(4) from purchasing, possessing, receiving, shipping, or transporting firearms or ammunition based on the prohibition that we granted the applicant relief from, and inform the Attorney General of the decision in order to remove the applicant from the NICS database.

SSA has 365 days to act upon an application pursuant to NICS Improvement Amendments Act.

 

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ak4nra_logo-01smallIf you are an NRA Life, Endowment, Patron or Benefactor member or an annual member of the past 5 consecutive years I ask that you please consider me in the upcoming election for the Board of Directors in February of 2017. Ballots will be mailed in the February issue of the NRA magazine to which you are subscribed. For more information, please visit www.adamkraut.com.

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ATF Announces New Form 4473 – Firearms Transaction Record

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The National Shooting Sports Foundation is reporting that on Monday, November 14, 2016, ATF announced that the new 4437 would be required on ALL firearms transactions beginning on January 16, 2017. As you may remember, I previously blogged about ATF soliciting comments on the proposed 4473 and then filed a Comment in Opposition to ATF’s Proposed Changes to the Form 4473. ATF responded to my comment in which it admitted to violating its own regulations but seemingly did not care.

It does seem that ATF took into consideration some of the comments FICG had filed in drafting the new form. One of the biggest problems I took issue with was the certification statement that the transferor (person transferring the firearm) had to sign.

Specifically, the individual signing the form is currently certifying that based upon

“…information in the current ATF Publication ‘State Laws and Published Ordinances’ – it is my belief that it is not unlawful for me to sell, deliver, transport, or otherwise disposes of the firearm(s) listed on this form to the person identified in Section A.”

The issue, as I previously blogged about, is that the ATF Publication “State Laws and Published Ordinances” has not been updated since January of 2011, in violation of ATF’s own regulations. See 27 CFR § 478.24.

ATF in the updated version of the form has changed the language to read that based upon

“…State or local law applicable to the firearms business — it is my belief that it is not unlawful for me to sell, deliver, transport, or otherwise dispose of the rearm(s) listed on this form to the person identified in Section A.”

Essentially, ATF changed the language so that the individual signing the form would not be responsible for referring to the guide that ATF is required to publish by its own regulations but rather be responsible for knowing the applicable state and local laws on their own.

Equally of interest is the new language found over question 11e. In case there was any confusion from licensees or individuals attempting to purchase firearms who utilize medical marijuana, there can be no more confusion. If an individual is a user of medical marijuana, they may not answer no to question 11e.

Marijuana leaf on a white background

e. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.

ATF did fail to take into consideration an important suggestion that FICG had made. There is no box on the form to indicate the firearm is being transferred to a legal entity. Rather than having licensees use a form, which the licensee has to make on their own, ATF could have simply added a spot on the form to indicate the firearm was being transferred to a legal entity. ATF stated that we were free to submit that suggestion again in the future, which is a comical response, because the reason they said they could not include it was that the form had already been drafted when the suggestion was made. It appears this ideal will turn into a Catch 22.

All in all, from my experience behind the gun shop counter, the revisions to the form (at least the part the transferee or purchaser will be responsible for completing) appear to make it a bit easier for individuals to follow and complete. While ATF could have done a better job listening to some of the suggestions which would have been helpful to licensees, it appears this version of the form is better than the last.

 

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Ballot selfie? PA Law and the First Amendment Collide

If you are planning on snapping a “selfie” in the voting booth this Tuesday, you may find yourself on the wrong side of the law.

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25 Pa.C.S. § 3530 prohibits a voter from showing “his ballot or the face of the voting machine voted by him to be seen by any person with the apparent intention of letting it be known how he is about to vote.” A person who violates this section “shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand ($1,000) dollars, or to undergo an imprisonment of not more than one (1) year, or both, in the discretion of the court.”

While the law does not make it a crime to show a ballot after it has been cast, any revelation prior to the vote being cast appears to be punishable. This would seemingly include any live streaming activities as well. It also appears to conflict with one’s First Amendment right to free speech.

In fact, a Federal Court held in September that a New Hampshire ban on “ballot selfies” was unconstitutional. The law challenged made it unlawful for voters to snap a picture of their ballot and post it on social media.

The Pennsylvania Department of State (DoS) issued a guidance on rules in effect at the polling place on election day in October of this year. Under the section entitled “Electronic Devices” the DoS states that the Election Code does not address the use of electronic devices in the polling place and as such, counties should “adopt common sense rules that take into account the need for order in the polling place and the right of citizens to vote unimpeded.”

In particular, the guidance notes that “[r]ecent court cases have found a First Amendment right to take “ballot selfies”. Therefore, the DoS recommends that “voters who want to take a picture of themselves voting take care that they not disclose the selections of voters other than themselves. The Department recommends that voters wait until after they leave the polling place to post ballot selfies on social media.”

While the law has not changed here in Pennsylvania, it would seem that the trend on a national level would indicate that if an individual were to challenge the law in relation to “ballot selfies” they would be successful on First Amendment grounds.

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BREAKING: BATFE Has Not Changed Anything Relating to Fingerprints for NFA Firearms

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This morning TheFirearmBlog.com posted a story which stated that ATF had revised its ruling in relation to fingerprints for NFA firearms. The article claims that ATF now requires law enforcement agencies to take fingerprints rather than anyone qualified to. To support this position the article links to ATF’s Explosives website.

As always, the information is provided by an anonymous source. Had the source or TheFirearmBlog.com looked at where the information came from, they would have clearly been able to see that this is simply not true. I’m a bit disappointed in TheFirearmBlog.com because usually they are an excellent source for correct information.

The problem is that the link goes to the Explosives portion of the website, NOT the firearms part. This is the same link that SilencerCo had previously used to support its position that Silencer Shop’s Secure Identity Documentation (SID) system would not be acceptable for the purposes of NFA firearms when it had sent an email to a major distributor earlier this year.

The link the article points to states:

How do I get my fingerprints taken?

Fingerprints must be submitted on Fingerprint Identification Cards, FD–258 that have been issued by ATF. The fingerprint cards must contain the following ORI information: WVATF0900; ATF–NATL EXPL LIC, MARTINSBURG WV. These fingerprint cards may be obtained by contacting the Federal Explosives Licensing Center at 877-283-3352 or the ATF Distribution Center at 703-870-7526 or 703-870-7528. The fingerprint cards must be completed by your local law enforcement authority.

Last Reviewed September 23, 2016

Emphasis added. Further if we look at the website the link goes to, we can clearly denote it is in the explosives area by looking at the information found on the left and above the question.

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ATF’s own Q&A relating to ATF 41F states that a licensee may take fingerprints provided they are properly equipped.

Q. May a Federal firearms licensee fingerprint a customer? As an FFL dealer, can we fingerprint our customers?

A. Fingerprints may be taken by anyone who is properly equipped to take them (see instructions on ATF Form 1, Form 4, Form 5, and Form 5320.23). Therefore, applicants may utilize the service of any business or government agency that is properly equipped to take fingerprints.”

As if there were any doubt, let us head to the regulations to review them.

In relation to the transfer of an NFA firearm, 27 C.F.R. § 479.85 Identification of Transferee states:

(a) If the transferee is an individual, such person shall:

….

(2) Attach to the application two properly completed FBI Forms FD-258 (Fingerprint Card). The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

In relation to the making of an NFA firearm, 27 C.F.R. § 479.63 Identification of Applicant states:

(a) If the applicant is an individual, the applicant shall:

….

(2) Attach to the application two properly completed FBI Forms FD-258 (Fingerprint Card). The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

(b) If the transferee is not a licensed manufacturer, importer, or dealer qualified under this part and is a partnership, company, association, trust, or corporation, such person shall:

(2) Except as provided in paragraph (c) of this section, attach to the application –

(iv) Two properly completed FBI Forms FD-258 (Fingerprint Card) for each responsible person. The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

(b) If the applicant is not a licensed manufacturer, importer, or dealer qualified under this part and is a partnership, company (including a Limited Liability Company (LLC)), association, trust, or corporation, the applicant shall:

(2) Except as provided in paragraph (c) of this section, attach to the application –

(iv) Two properly completed FBI Forms FD-258 (Fingerprint Card) for each responsible person. The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

Once again, we see there is no support for the proposition ATF changed anything. If you are applying to make or transfer an NFA firearm you can roll your own fingerprints, utilize Silencer Shop’s SID kiosk, have your FFL roll your fingerprints or head over to your local law enforcement to have them taken.

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