Do you have to register for ITAR if you are only manufacturing AR-15 uppers?

In my last post I answered the question of whether or not an FFL is required if one is only manufacturing and selling AR-15 uppers.

Almost immediately I was asked a follow-up question about whether or not a person who is only manufacturing uppers (and therefore not subject to the requirement of holding an FFL) would still need to register with ITAR.

For those of you unfamiliar with ITAR, I have a detailed article on the registration requirements of ITAR for those holding a manufacturing FFL.  However, here we are talking about manufacturing uppers without holding an FFL of any kind.

To evaluate this unique question, we start with the regulation which governs the registration requirements or the International Traffic in Arms Regulations (ITAR) which were promulgated to implement the provisions of the Arms Export Control Act of 1976 (AECA).  The relevant section (emphasis added) is as follows:

Any person who engages in the United States in the business of either manufacturing or exporting defense articles or furnishing defense services is required to register with the Directorate of Defense Trade Controls. For the purpose of this subchapter, engaging in the business of manufacturing or exporting defense articles or furnishing defense services requires only one occasion of manufacturing or exporting a defense article or furnishing a defense service. Manufacturers who do not engage in exporting must nevertheless register.

As for what constitutes ‘defense articles’, 22 USC 121 contains a complete listing under what is known as The United States Munitions List (USML).  The relevant section is contained in Category I of the list in subsections g and h (with reference to subsection a):

(a) Nonautomatic and semi-automatic firearms to caliber .50 inclusive (12.7 mm).

(g) Barrels, cylinders, receivers (frames) or complete breech mechanisms for the articles in paragraphs (a) through (d) of this category.

(h) Components, parts, accessories and attachments for the articles in paragraphs (a) through (g) of this category.

The short answer is that, despite not requiring an FFL, those seeking to manufacture uppers for the AR-15 platform are required to register for ITAR and pay the registration fee.

So … how bad is this fee?  It’s pretty bad.  If you are not engaged in exporting then you would be considered a ‘Tier 1’ registrant.  Therefore you would only have to pay the lowest possible fee.

A set fee of $2,250 per year is required for new registrants or registrants for whom the Directorate of Defense Trade Controls has not reviewed, adjudicated or issued a response to any applications during a 12-month period ending 90 days prior to expiration of the current registration.

I understand that this registration requirement imposes a significant barrier to entry into the firearms industry.  However, until we see federal action on the issue I will continue to educate my clients on the ITAR requirements.

Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.

Posted in AR-15, ATF, BATFE, Federal Law, ITAR, Manufacturing, Uppers | Comments Off on Do you have to register for ITAR if you are only manufacturing AR-15 uppers?

Do you need an FFL to manufacture and sell AR-15 uppers?

I was recently asked whether an FFL is required to manufacture and sell AR-15 uppers.

The answer is ‘no‘ but I want to caution readers that this would not necessarily be the case if the upper in question was for a different firearm.

In the AR platform, the lower is the serialized item (the actual firearm), whereas uppers are considered merely accessories and are not serialized.  Therefore, manufacturing and selling only the upper would not require an FFL (Federal Firearms License) since you are not dealing with an item considered to be a ‘firearm’ or ammunition.

This analysis would not be the same on certain other platforms.  For example, in the FN-FAL and Bushmaster ACR designs (to name just a few) the upper is the serialized ‘firearm’ and therefore an FFL would be required to manufacture or sell uppers for those designs.

Disclaimer:  Please note that this analysis is specifically focused on whether an FFL is required.  Individual states may place additional restrictions or requirements upon the manufacture of firearms components.

Posted in AR-15, ATF, BATFE, Federal Law, FFL Issues, Manufacturing, Uppers | Comments Off on Do you need an FFL to manufacture and sell AR-15 uppers?

Can felons hunt with crossbows in Virginia?

I have written before about the rampant confusion surrounding the issue of whether or not felons can possess, and hunt with, black powder firearms in Virginia.

Spoiler alert … they cannot.

But there is a separate question that comes up almost as often and that is whether or not felons can possess, and hunt with, crossbows.

I believe that part of the confusion is based upon the fact that crossbows were not allowed to be used for hunting by anyone in Virginia until 2005, except in the case of hunters “whose physical disabilities prevent[ed] them from hunting with conventional archery equipment.

Because of this, many people seem to mentally separate crossbows from conventional bows and assume that they are regulated more like firearms (which are prohibited to felons whose gun rights have not been restored).  But is that correct?

As always, when we are discussing an issue of ‘firearms’ law, we have to examine both state and federal law.  So let’s start by looking at federal law.

Federal law, at 18 U.S.C. § 921(a)(3), defines a firearm as:

(A) 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; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

So … since crossbows use stored potential energy to propel an arrow rather than the action of an ‘explosive’ (or rapidly burning propellant), they are not prohibited to felons under federal law.

But we still have state law to consider.

I will start by noting that there are no statutes which specifically prohibit crossbows to felons in the Code of Virginia.  So we need to determine if they are swept into the state definiton of ‘firearms’.

In Virginia, the definition of ‘firearm’ is contained in a number of statues, including those governing when a background check needs to be performed (§ 18.2-308.2:2).  Under this code section, we see a definition of “firearm” that closely matches the federal definition.

“Firearm” means any handgun, shotgun, or rifle that will or is designed to or may readily be converted to expel single or multiple projectiles by action of an explosion of a combustible material.

Once again we find that crossbows do not meet this definition.  But we are not done yet. As always, we end our analysis by looking at case law.

After reviewing the holdings of the Virginia Supreme Court, Court of Appeals, and Circuit Courts, I am unable to find any case law which could even tangentially be read to imply that crossbows are considered ‘firearms’ under Virginia law or that they are denied to those convicted of a felony.

In summary, it appears that, in Virginia, there are no statutory bars to the lawful purchase or possession of crossbows by convicted felons.  This would include their use for lawful hunting.

NOTES:  The one caveat I must add is that, for those still on supervised probation, there may be conditions of probation which would change this analysis.

If you are a convicted felon who wishes to regain his or her right to possess firearms then I will be glad to discuss representing you in petitioning the court for restoration of your rights.

If you have any other questions feel free to contact me for a free consultation.


Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer is specific to Virginia.

Posted in Bows, Criminal Law, Crossbows, Federal Law, Felons, Gun Rights Restoration, Virginia Law | Comments Off on Can felons hunt with crossbows in Virginia?

You no longer need to print ATF Form 1’s and Form 4’s double-sided

I received an email today from a client who had noticed that the latest downloadable versions of both the Form 1 and the Form 4 now have new instructions regarding the printing of the forms.

Prior versions of both forms (including the initial versions released for the implementation of 41F) required that the forms be printed double-sided at the risk of disapproval of the application.

The specific instruction on the old versions of both forms stated:

Photocopies or Computer Generated Versions.   After downloading or copying and printing this form from the ATF website, ensure that the front and back are on the same sheet of paper. The NFA Branch will not approve the application if the front and back are on separate sheets of paper.

The new version specifically disavows this requirement.  The new instruction states:

Photocopies or Computer Generated Versions.  The form may be copied or downloaded (for example, from the ATF website (www.atf.gov)). The form does not have to be printed front to back.

My guides to completing both forms have been updated accordingly.

Posted in 41F, ATF, BATFE, Form 1, Form 4, NFA Transfers | Comments Off on You no longer need to print ATF Form 1’s and Form 4’s double-sided

Understanding the Virginia ban on ‘street sweeper’ shotguns

saiga_drum_magA question that arises quite frequently concerns the interpretation of the ‘like kind‘ language in the Virginia ban on Striker 12 Street Sweeper shotguns.

With the popularity of semi-auto shotguns such as the Saiga and Vepr 12, these questions are understandable.

Today I was asked this question yet again by a long-time client and I thought the answer might be of interest to others.

His questions could be paraphrased as follows:

In a Saiga or Vepr semi-auto 12 gauge shotgun with a folding stock:

  1. Is it legal to use any box magazine regardless of capacity?
  2. Is a 10 round drum magazine allowable?
  3. What about a 20 round drum magazine?  Since the statute specifically requires a 12 round magazine wouldn’t a 20 be acceptable?

Let’s start by looking at the applicable statute which is § 18.2-308.8 of the Code of Virginia.  It reads as follows:

It shall be unlawful for any person to import, sell, possess or transfer the following firearms: the Striker 12, commonly called a “streetsweeper,” or any semi-automatic folding stock shotgun of like kind with a spring tension drum magazine capable of holding twelve shotgun shells. A violation of this section shall be punishable as a Class 6 felony.

Breaking the prohibition down, we see that the ‘like kind‘ language requires that, in order to be prohibited, a firearm must be:

  • A semi-auto …
  • shotgun …
  • with a folding stock …
  • with a spring tension drum magazine …
  • that is capable of holding 12 shotgun shells

Now that we have broken down the requirements, let’s answer the 3 questions above.

  1.  Is it legal to use any box magazine regardless of capacity?
    1. Yes.  In order to fall under the prohibition, a firearm must have a spring tension drum magazine.  A box magazine would fall outside the prohibition.
  2. Is a 10 round drum magazine allowable?
    1. Yes.  A 10 round drum magazine is not ‘capable of holding 12 shotgun shells’ and therefore that configuration would fall outside the prohibition.
  3. What about a 20 round drum magazine?  Since the statute specifically requires a 12 round magazine wouldn’t a 20 be acceptable?
    1. No!  The statute does not require that the magazine be exactly 12 rounds, only that it becapable of holding twelve shotgun shells’, which a 20 round drum certainly is capable of.  Anyone who interprets this statute to only prohibit drum magazines which hold exactly 12 rounds subject themselves to a significant risk of prosecution and conviction!

I hope this clarifies the issue somewhat.  The good news is that one can take either of these shotguns (or any other semi-auto shotgun capable of holding a drum magazine) completely out of the purview of this statute by removing the folding stock and replacing it with a fixed stock.

NOTE:  This analysis governs ‘like kind‘ shotguns that are not NFA items.  As I explained in this article, the Striker 12 Street Sweeper itself is now classified as an NFA item.

Posted in Street Sweeper, Virginia Law | Comments Off on Understanding the Virginia ban on ‘street sweeper’ shotguns

In honor of our nation’s veterans

veterans_dayAs a nation we tend to talk about ‘rights’ and ‘freedoms’ as if they were something inevitable.  But a quick look around the world will demonstrate the folly of that assumption.  The ‘freedoms’ we enjoy and the ‘rights’ we claim were purchased in the coin of sacrifice, blood, and lives; and the same price is required to maintain them.

Today … on a day when we as a nation pause to honor those who have served in our military … let us take great care to remember the debt we owe to every man and woman who has ever taken the oath and gone far from home where they intentionally placed themselves in harms way to protect our great republic.

I ask everyone to join me in honoring our service members, past and present, for their service to our country and for their service in defense of freedom.

#RealSuperHeroes

 

Posted in Opinion, Second Amendment | Comments Off on In honor of our nation’s veterans

Picking up a firearm from consignment

consignmentI received a call earlier today from one of my FFL clients asking about this topic.

Specifically, they wanted me to verify whether or not the owner of a consignment firearm needs to complete a 4473 and NICS check in order to have their firearm returned.

Apparently their customer was questioning the requirement and they wanted to be able to show him verification that it was based upon law and not just store policy.

Thankfully, the ATF has this very question answered on their Q&A web site (see the screenshot below).

The answer from the ATF is clear:

“Return of any consigned firearms by the licensee to the consignor must be entered in the licensee’s disposition record. An ATF Form 4473 and a NICS check must be completed prior to the return of such firearms.”

atf_consignment

Posted in 4473, ATF, BATFE, Consignment, Federal Law, FFL Issues | Comments Off on Picking up a firearm from consignment

May an FFL rent handguns and provide ammunition to those under 21 for on-premises use?

range_pictureI have written before about the differences between Virginia law and federal law where the age to acquire, possess, and carry handguns is concerned.

In that article I note that FFL’s are prohibited under 18 USC § 922(b)(1) from ‘selling or delivering‘ a handgun, or ammunition for a handgun, ‘to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age‘.

The question then arises as to whether or not the rental of a handgun for use on an FFL’s on-premises range constitutes ‘delivery‘ for the purposes of applying this prohibition.

The ATF answered this question in their March 2013 Newsletter (embedded below) where they states that “A licensee may rent a handgun to a person less than 21 years of age, or a long gun to a person less than 18 years of age for use at an on-premises shooting range. The on-premises rental of National Firearms Act (NFA) firearms is also permitted.

Download (PDF, 591KB)

But an observant person will note that 18 USC § 922(b)(1) prohibits the sale or delivery of handguns and ammunition for handguns.  So we then have the secondary question of whether or not an FFL may provide ammunition to someone between the ages of 18 and 21 after they have rented them a handgun?

Renowned Pennsylvania firearms attorney Joshua Prince was asked by one of his clients to get a determination letter from the ATF on just this issue.  That determination letter is embedded below.

Download (PDF, 129KB)

To summarize, the ATF’s position is that ammo may be ‘provided’ (but not ‘sold’) in the case of a range-rental if the following requirements are met:

  1. The ammunition is included as part of the overall fee for the usage of the facility.
  2. All spent cartridges must remain at the facility.
  3. Any unused ammunition must be returned with the firearm.
Posted in Age To Possess, ATF, ATF Guidance Letters, BATFE, Federal Law, FFL Issues, Range Issues, Virginia Law | Comments Off on May an FFL rent handguns and provide ammunition to those under 21 for on-premises use?

Does putting a bipod on a pistol make it an AOW?

Charger_BipodI received an email this morning from a client asking whether or not they could add a bipod to their pistol without making it an AOW.

As I have pointed out on more than one occasion, the answer to almost any legal question is “maybe”  and that is certainly the case here.

There is no ATF regulation directly on point to the ‘bipod’ question but that does not mean that we are done with our analysis.

Let’s start with some basic rules:

1) Adding a vertical foregrip to a ‘pistol’ makes it an AOW subject to NFA regulation.  See the Franklin Armory letter below.

2) If the pistol has an overall length greater than 26 inches then you can add a vertical foregrip and convert the ‘pistol’ to a ‘firearm’ in the eyes of the ATF without it being considered an AOW.  This is also covered in the Franklin Armory letter.

Download (PDF, 969KB)

For purposes of this analysis, I am going to assume that we are dealing with a pistol that has an overall length less than 26 inches.

Now we turn to the question of whether or not a bipod can be considered a ‘vertical foregrip’ for purposes of applying rule #1 above.

As my client pointed out in his email, the Ruger Charger 10/22 pistol comes from the factory with a bipod and is not classified as an AOW.  Therefore we do know that at least some types of bipods are allowable.

But does this hold true for all bipods?  No it does not.

The most obvious example of a bipod that would be considered to also be a vertical foregrip is the aptly named Grip Pod pictured below.

This is a bipod that can also serve as a vertical foregrip and therefore would cause a pistol to which it was attached to be considered an AOW.

But not all examples are so clear-cut.  While we do not have a detailed ruling on the issue from the ATF, if a given bipod is capable of being folded into a stable configuration approximating a vertical foregrip then I believe ATF would consider it violative of the rule against vertical foregrips.

Finally, I believe that ATF would probably apply the same logic from the stabilizing brace issue to this question.  In that case, the ATF held that “[s]ince the pistol stabilizing brace was neither ‘designed’ nor approved to be used as a shoulder stock, use as a shoulder stock constitutes a ‘redesign’ of the device because a possessor has changed the very function of the item.”

As applied here, I can easily see them holding that “Since the bipod was neither ‘designed’ nor approved to be used as a vertical foregrip, use as a vertical foregrip constitutes a ‘redesign’ of the device because a possessor has changed the very function of the item.”

So … where does that leave us?

I believe the best summary would be as follows:

Use of any bipod that has a built in grip or the capability to be folded into a stable configuration approximating a vertical foregrip would potentially expose the owner to a charge of violating the NFA.  The same would probably be true of any person who uses an otherwise legal bipod as a vertical foregrip despite its intended purposes and design.

Outside of those two broad categories, a bipod is perfectly legal for use on a pistol.

Posted in Administrative Law, AOW, AR Pistols, ATF, ATF Guidance Letters, BATFE, Criminal Law, Firearms Technology Branch, Stabilizing Brace | Comments Off on Does putting a bipod on a pistol make it an AOW?

Virginia Gun Rights Restoration Failures

If you call me with a tax law question, I am going to refer you to an attorney who practices tax law.  The same is true with all the other areas of law that are outside my wheelhouse.

The reason for this should be readily apparent.  As attorneys we have an ethical obligation to avoid taking cases where we lack the necessary competency.

However, not everyone understands the level of complexity involved in firearms law and this can lead to disastrous consequences.

In particular, I am talking about gun rights restoration.

Over the last year I have encountered a number of purported gun rights ‘restorations’ which do not, in fact, restore the rights of the petitioner and can lead to state or federal charges against the person who believes that his or her rights have been restored.

These failed restorations generally fall into one of four categories:

1) The petitioner was convicted of a federal felony

The 1994 case of Beecham v. United States, (511 U.S. 368) made it clear that  a state does not have the power to restore the firearm rights of a person whose disability was imposed by a federal or military felony.  However, I have received calls from several potential clients who claimed that they have a signed order from their circuit court purporting to do just that.

Just to be clear … if you have been convicted of a federal felony then there are only two ways to get your gun rights back and only one of them is actually available.

1 – By applying to the Secretary of the Treasury for relief from firearms disabilities

This is governed by 18 U.S.C. § 925(c).  The problem?  Since 1992, Democrat-lead efforts in Congress have prevented the agency from expending any appropriated funds to investigate or act upon applications for relief.  Furthermore, the US Supreme Court held in the 2002 case of  United States v. Bean (537 U.S. 71) that this refusal to process an application is not a ‘denial’ of the request and therefore, the District Courts have no jurisdiction to review the ‘denial’.

2 – By receiving a presidential pardon.

Information and instructions for submitting an application for a presidential pardon are available here.

Therefore, absent a presidential pardon, a person suffering under a disability imposed by a federal or military felony cannot have his or her gun rights restored and any state order purporting to do so is ineffective.

2) The disqualifying charge was a misdemeanor charge of domestic violence

I have written about this before but it bears repeating here.  In early 2015 I received an email from someone who claimed that they had successfully petitioned a circuit court to restore their firearm rights after having been convicted of misdemeanor domestic violence.

The problem here?

1)  While a misdemeanor crime of domestic violence makes you a prohibited person under federal law, Virginia does not remove the firearm rights of those convicted of misdemeanor domestic violence;

2)  The jurisdictional grant of power in 18.2-308.2(C) to restore firearms rights only applies to those who are prohibited persons under Virginia law; and

3)  The federal courts have repeatedly held that states may not ‘restore’ that which was never taken away.

In one of many cases to uphold this premise, United States v. Jennings, 323 F.3d 263 (4th Cir.), the court held that “restoration of a thing never lost … is a definitional impossibility.

This leaves a simple pardon from the Governor as the only path by which those convicted of misdemeanor domestic violence in Virginia may currently seek to remove their federal disabilities.

A court order from a Virginia court, purporting to restore rights never taken away by the State, is ineffective.

3) The disqualifying offense was from another state

Under the terms of the Firearms Owners Protection Act (FOPA),  the consequences and status of a disqualifying conviction must be “determined in accordance with the law of the jurisdiction in which the proceedings were held.”  This is codified at 18 U.S.C. § 921(a)(20).

The Virginia State Police has this to say about convictions from another state,  “While an individual may have his firearms rights restored under state law, we must determine if their rights are also restored under federal law. We have been advised that the removal of federal firearm disabilities that were imposed by a state conviction will occur under 18 USC 921(a)(20) only if the restoration of rights proceedings are held in the jurisdiction where the conviction occurred.”

Therefore, a court order from a Virginia court, purporting to restore rights taken away by a conviction in another state, is ineffective.

4) The restoration is conditional

The final category occurs when a restoration is validly granted but contains some sort of condition on the type of firearm that may be purchased or possessed, such as:

– This restoration is valid only for rifles and shotguns and does not authorize the possession of handguns.

The US Supreme Court held in the 1998 case of Caron v United States (524 U.S. 308), that a gun rights restoration must be all-or-nothing.  In other words, if there are any restrictions on the types of firearms that the petitioner may possess then the restoration order fails to remove the federal disability.

Therefore, if a purported restoration has such a condition it is ineffective.

What if I have one of these ‘failed’ restorations?

If you have a purported restoration that falls into one of these categories then I would be glad to offer you a free consultation.

Contact me at (276) 206-9615 and we will discuss your options.

Posted in ATF, BATFE, Criminal Law, Federal Law, Gun Rights Restoration, US Supreme Court, Virginia Law, Virginia State Police | Comments Off on Virginia Gun Rights Restoration Failures