Tag Archives: PA Gun Attorney

ATF’s Shocking Position on “Makers” of Silencers/Suppressors, Especially in Relation to Solvent Traps

As many of our readers are aware, Attorney Adam Kraut and I attended the NSSF’s Import/Export Conference on August 2-3, 2016, for which we blogged about many of the statements made by ATF (and other federal agencies) in our blog – News from the Round Table Discussions at the NSSF Import/Export Conference. One issue that we did not discuss is ATF’s statements during the Round Table Discussions relating to ATF’s position on “makers” of silencers/suppressors, especially relative to what been called “solvent traps.”

For those who are unaware, there are a number of business offering “solvent traps,” which are designed to thread on the end of one’s barrel to capture the solvent, typically in an oil or fuel filter threaded on the end.

Oil Filter Suppressor 1Oil Filter Suppressor 2.jpg

While the use of these devices for purposes of collecting solvent is questionable, many of these companies advise their customers that if they want to be able to use the solvent trap as a silencer/suppressor, the customer must first file a Form 1 with ATF to make a silencer and receive approval, before utilizing the solvent trap for purposes of being a silencer. (While we would advise our clients to file a Form 1 and obtain approval of ATF prior to even purchasing a solvent trap or similar device, so to prevent against constructive possession charges, such is beyond the scope of this article).

Under the National Firearms Act (“NFA”), 26 U.S.C. 5801, et seq, one who wishes to “make” an NFA firearm must file an application with the Attorney General, pursuant to 26 U.S.C. 5822. (Although the statute still references the Secretary (of the Treasury), when ATF was moved under DOJ in 2003, it changed to the Attorney General). Under the NFA, pursuant to 26 U.S.C. 5845, “make” is defined as to “include manufacturing (other than by one qualified to engage in such business under this chapter [26 USCS §§ 5801 et seq.]), putting together, altering, any combination of these, or otherwise producing a firearm.”  While the NFA, pursuant to 26 U.S.C. 5841, does differentiate between a “maker” and a “manufacturer” in relation to how one is to initially register an NFA firearm  and does define “make” as mentioned previously, nothing in the NFA differentiates between the rights of a “maker” and those of a “manufacturer.”

Nevertheless, during a discussion on ATF-29p (ATF’s Advanced Notice of Proposed Rulemaking relating to Silencer/Suppressor engravings), ATF’s Mike Curtis and Earl Griffith with the Firearms and Ammunition Technology Division (“FATD”) stated that ATF views “makers” of silencers/suppressors differently than “manufacturers.” Specifically, the example of solvent traps was brought up, where they stated that ATF’s position is that a “maker” of a silencer cannot replace a silencer part without filing a new Form 1, paying another $200.00 and obtaining approval from ATF; whereas, a manufacturer, may lawfully replace a silencer part in a silencer it manufactured, provided that the part that is being replaced is destroyed. While there does not exist any specific statutory provision to support this contention, Mr. Curtis went on to explain that an individual who files a Form 1 to make a “solvent trap silencer” can only use the original oil/fuel filter that is installed and is barred from replacing a previously utilized oil/fuel filter with a new filter, absent a newly approved Form 1.

While Mr. Curtis did admit that to his knowledge ATF has not been asked to make a determination on a solvent trap silencer, he was explicitly clear that if a determination request was filed (or criminal charges brought against someone in such a situation), ATF would specifically find and contend that a “maker” of a silencer/suppressor may not repair/replace any part of the silencer/suppressor without first obtaining another approved Form 1.

Obviously, ATF’s position has a great impact on the Firearms Industry, as many individuals have made their own silencers/suppressors, long before the solvent trap silencers, and have been under the impression that like a manufacturer of a silencer/suppressor, they may lawfully replace a part in that silencer, provided that they destroy the part being replaced.

While Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., does not agree with ATF’s position, we believe it is extremely important to advise those who have Form 1’ed their own silencer/suppressor of ATF’s position, since non-compliance could result in federal charging.

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Extremely Interesting Developments Relating to ATF’s Re-Opening of the Comment Period for the ATF 4473

As our readers are likely aware, I previously blogged that ATF had re-opened the comment period for the ATF 4473 form. After digging a little deeper, I determined that OMB issued a PRA Primer Memo of April 7, 2010 directing that an agency, after providing the initial 60 day notice period required by 44 U.S.C. 3506(c)(2)(A), summarize the public comments received and any response by the agency, then submit that information to OIRA and thereafter provide an additional 30 day comment period so the public has an opportunity to respond to comments submitted.

Accordingly, on August 5, 2016, I submitted a correspondence to OIRA and ATF citing to the PRA Primer Memo and explaining that in relation OMB Number 1140-0020 “ATF has failed to provide either (1) the actual comments submitted or (2) any summary of the public comments received (as well as any response by the agency); therefore, depriving the public of any opportunity to know what comments were submitted and depriving the public of an opportunity to respond to those comments and thereby eviscerating the purpose of the 30 day comment period.”

Although I received no response from OIRA or ATF, today, Attorney Adam Kraut, who drafted our Comment in Opposition, initially received an email from the ATF Firearms Industry Program Branch (FIPB) in relation to his June 1, 2016 email inquiring as to why ATF was not posting or providing access to the comments submitted regarding the proposed changes to the ATF 4473. FIPB stated that “Comments received from this information collection will soon be available on the www.reginfo.gov website.”

Shortly thereafter, Attorney Kraut received a second email from FIPB with a response to Firearms Industry Consulting Group‘s Comment in Opposition. You can download a copy of ATF’s response to our Comment here. Additionally, I recently learned that ATF also emailed a response to our friends at Cannabis Industry Law Group in relation to their Comment in Opposition to the ATF 4473 and ATF provided this response.

It appears that OIRA was not exactly happy with ATF’s failure to comply with OMB’s requirements and directed ATF to correct its errors. It will be interesting to see if the 30 day comment period is extended to provide all interested parties with the requisite 30 days to respond, after ATF provides access to all comments received and its responses thereto.

If you are in the Firearms Industry and desire to file comments in relation to ATF, DDTC or any other federal agency’s rulemaking, contact us today to discuss how we can assist.

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The 411 on National Reciprocity for Concealed Carry

Since the prosecution of Shaneen Allen, there has been a push across the United States for national reciprocity but few are aware of the proposed reciprocity bills. While I have some concerns about national reciprocity (which I review below), it is important to understand the four currently pending bills regarding national reciprocity.

Senate Bill 498, introduced by U.S. Senator John Cornyn (R-Texas) and House of Representatives Bill 923, introduced by U.S. Representative Marlin Stutzman (R-Ind.) are companion bills (meaning that they are identical, at least, when submitted). Currently S.B. 498 has 32 cosponsors and H.R. 923 has 36 cosponsors. These bills would provide that where an individual is not prohibited under federal law from possessing firearms and has license or permit from a state, which includes a photo, that allows him/her to possess or carry a concealed firearm, he/she would be entitled to carry a concealed firearm, pursuant to his/her license/permit, in any state that allows residents of that state to obtain licenses or permits to carry concealed firearms or in a state that does not prohibit the carrying of concealed firearms by residents of that state for lawful purposes. Additionally, the same protections are afforded to a resident of a state where he/she is entitled to carry a firearm absent a license or permit. (This provision is of questionable benefit, since, to my knowledge, all states that have gone to “constitutional carry” still have a mechanism for an individual to obtain a license/permit for purposes of reciprocity). It should be noted that both machineguns and destructive devices are exempt from carrying, pursuant to this bill; however, short barreled rifles/shotguns and Any Other Weapons would seemingly be permitted, since not excluded. Furthermore, all the laws and regulations of the state the individual is in would apply; hence, if a particular state’s laws precluded hollow-point bullets, one could not carry hollow-point bullets in that state, pursuant to this bill.

House of Representatives Bill 402, introduced by U.S. Representative Rich Nugent (R-Fla.) currently has 93 cosponsors. This bill is almost identical to S.B. 498 and H.R. 923 but lacks the inclusion of non-licensed residents of states where the individual is entitled to carry a firearm absent a license or permit. (See above for the questionable benefit of this provision).

And, saving the best for last, House of Representatives Bill 986, introduced by U.S. Representative Richard Hudson (R-N.C.), currently has 183 cosponsors. Similar to H.R. 402, it lacks a provision including non-licensed residents of states where the individual is entitled to carry a firearm absent a license or permit. (See above for the questionable benefit of this provision). Additionally, unlike the other bills, H.R. 986 supersedes state law seemingly in all respects, except for state laws which “permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property” and “prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.”

And if that wasn’t enough to sell you on H.R. 986, it also provides for (1) immunity from prosecution “unless there is probable cause to believe that the person is doing so in a manner not provided for by this section”; (2) the individual’s right to attorney fees, where he/she is prosecuted unsuccessfully; (3) a civil cause of action against any state or political subdivision that deprives an individual of their rights under this bill, where the individual is entitled to damages and attorney fees.

While I support H.R. 986, I have some general concerns about national reciprocity in general, especially in determining, whose laws apply. As I see it, there are five options:

  1. The laws of individual’s state of residence apply. This is extremely problematic as it would require that law enforcement know the 50 states’ laws, when they typically do not even know the laws of the state in which they are employed.
  2. The laws of state the individual is in apply. This has generally been toted as the most practical; however, how is a resident of another state suppose to determine what is lawful and unlawful? I frequently spend 4+ hrs during firearms law seminars just going over Pennsylvania’s law. I cannot fathom how any lay person could possibly comprehend, absent competent legal advice, most states’ laws regarding the carrying and possession of loaded firearms. This, in essence, is no different than requiring that a law enforcement officer know 50 different states’ laws; however, at least the law enforcement officer has training in reading and interpreting the laws.
  3. Hybrid of 1 and 2. My own personal opinion of the best option that is likely (e.g. absent 5 applying) is for each state to be required to make an easily comprehensible guide to their concealed carry laws, where if an individual reasonably relies on the information in the guide to his/her detriment, he/she is immune from prosecution.
  4. Federal law dictates the permitted conduct, such as, an individual carrying pursuant to national reciprocity is restricted to ten rounds, only full metal jacket,…etc. The problem, for me, with this approach is that this would encroach upon states’ rights. While the U.S Government has encroached upon states’ rights for decades, seemingly erasing the 10th Amendment, I have never nor can I support further erosion of the Constitution.
  5. The 2nd Amendment applies! Clearly, if all state laws regulating the possession and carrying of firearms are unconstitutional pursuant to the 2nd Amendment, then there is no erosion of the 10th Amendment, since the states cannot restrict an inalienable right. Unfortunately, most court decisions are not supportive of this position; however, it appears to (largely) be the outcome sought through H.R. 986.

Also, I must note that I have a problem with all of the bills in that they require photographic identification. As our readers are likely aware, I recently filed suit against the U.S. Government for denying my client the right to purchase a firearm because his religious beliefs preclude him from having his photo taken. As none of us are born with photo identification and all states have a mechanism in place for an individual to obtain, for the first time, photographic identification, any law should permit individuals with sincerely held religious beliefs to prove their identity no differently than that required for an individual to prove his/her identity for the first time to obtain photographic identification.

Let us know your thoughts on national reciprocity, which bill you support and why!

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Filed under Firearms Law, Pennsylvania Firearms Law

It’s Legal To Carry a Firearm, While Voting!

While I have blogged on the topic extensively, many residents of Pennsylvania are unaware of their right to carry a firearm while voting, unless their polling location is located at a place which prohibited under state law. Accordingly, I did a short video on the right to carry a firearm, while voting. For those interested in a more in-depth review of the general right to carry a firearm while voting in Pennsylvania, see my article – Voting While Carrying a Firearm in PA – It’s Legal!

Carrying while Voting Joshua Prince(Your PA Firearms Attorney® voting in 2013 with a Sig on my right hip)

When Northampton County previously precluded one of my clients from voting, I took action, which resulted in Northampton County now informing all of its voters of their general right to carry a firearm, while voting. http://www.northamptoncounty.org/northampton/cwp/view.asp…|34800|&northamptonNav_GID=1988 declaring

The Pennsylvania Uniform Firearms Act, 18 Pa.C.S.A. Sections 6101 et seq., permits any person permitted to possess a firearm to openly carry or, with a license to carry firearm, to conceal carry the firearm in Northampton County with the exception of elementary schools, secondary schools, or court facilities. No individual shall be precluded from entering a polling location while lawfully carrying a firearm, whether openly or concealed, unless such polling location constitutes an elementary school, secondary school, or court facility. No individual shall be precluded from voting while lawfully carrying a firearm, whether openly or concealed, unless such polling location constitutes an elementary school, secondary school, or court facility. No sign shall be drafted, written, erected, placed, or visibly available at any polling location precluding an individual from entering a polling location or voting while in lawful possession of a firearm.

I cannot stress enough how important it is to vote, regardless of whether or not you carry a firearm. While I believe voting while carrying a firearm is a political statement, the failure of so many citizens to become involved in the political process may result in us losing our right to make any political statement, as evidenced by the current state of our Union.

If anyone precludes you from voting while carrying a firearm, contact our office – 888-313-0416 or info@princelaw.com – so that we can discuss your legal options.

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Filed under Firearms Law, Pennsylvania Firearms Law