The NFA’s New Era: What Has Changed, What Remains the Same, Items of Note

As we announced separately this week, ATF has determined that it will use its executive discretion to uniformly suspend enforcement of large portions of the National Firearms Act (NFA). This follows the court’s decision and injunction in the consolidated cases of Jensen v. ATF and Silencer Shop Foundation v. ATF. We have written about the details of those rulings here, here, and here. As businesses and individuals determine how to proceed, it is important to keep in mind what has changed and what remains the same.

What Remains the Same

• The NFA is still on the books. While the court has issued a binding order against enforcement of certain NFA provisions against certain parties, and while ATF has announced its own decision not to enforce other provisions generally, the underlying law has not disappeared. This is important, because judicial orders can be reversed or dissolved, even without action by the parties themselves. Also, enforcement priorities and decisions can change, particularly in response to elections, new appointments, and emerging circumstances. Actions taken today can have legal consequences weeks, months, and years in the future, including under different leadership.
• Machine guns and destructive devices are still subject to the full range of NFA taxes, registration, and other requirements.
• The special occupational tax (SOT) provisions of the NFA remain fully applicable.
• Suppressors, short-barreled rifles (SBRs), short-barreled shotguns (SBSs), and “any other weapons” (AOWs) are still firearms under the Gun Control Act of 1968, as amended (GCA). This means federal licensing for commercial activity, limitations on interstate transfers, prohibited person provisions, background checks for retail sales, and dealer record-keeping requirements, among other things.
• State laws still apply. Because some states require federal registration to possess NFA items legally, ATF will continue to administer the normal NFA process for those who need or wish to take advantage of it.
• The GCA still requires approval for interstate transport of machine guns, destructive devices, SBRs, and SBSs, which involves filing an ATF Form 20.
• Efforts to fully repeal the NFA remain ongoing. NRA continues to support legislation and litigation to accomplish this, including cases that raise Second Amendment challenges to various NFA requirements.
• FFLs are entitled to their own interpretations and policies, within the bounds of the law, in response to ATF’s announcement. Some may wish to take full advantage of ATF’s enforcement pause. Others may wish to adopt a more conservative approach. We encourage everyone to respect these choices, understanding that this is a time of rapid and evolving change in the legal landscape surrounding firearms. People can reasonably vary in how they respond.

What Has Changed as a Matter of Federal Enforcement

• For the most part, the Trump ATF and DOJ will now treat suppressors, SBRs, SBSs, and AOWs (covered items) as ordinary firearms for purposes of federal law. They will not enforce the NFA’s particular application and registration provisions as they apply to those categories.
• SOTs will not be required to file a Form 3 to engage in interstate transactions of covered items with other SOTs.
• SOTs will not have to register covered items they make with ATF within 24 hours.
• Unlicensed individuals may make covered items for personal use without filing a Form 1 or marking the item.
• Unlicensed individuals may engage in private transfers of covered items as if they were GCA firearms.
• The fact that a covered item is unregistered will not be treated as a bar to transporting it interstate.

ATF’s guidance notes that the agency is preparing rulemakings and forms to comply with the provisions of 18 U.S.C. § 922(b)(4), which require an FFL to obtain specific authorization from the attorney general before transferring an SBR or SBS. In the meantime, ATF states it “will exercise its enforcement discretion and not enforce 18 U.S.C. § 922(b)(4) until such regulations exist.”

NRA-ILA commends the spirit with which President Trump, Attorney General Todd Blanche, and ATF Director Robert Cekada have gone about this process, first by accepting the court’s decision without appeal and now by issuing clear, practical, and uniform standards for how they will respond. It is a testament to their commitment to the Second Amendment and to their willingness to partner with industry and law-abiding gun owners.

ATF last year promised a “new era of reform,” one marked by “transparency, accountability, and partnership with the firearms industry,” as well as “a renewed focus on rebuilding trust with federal firearms licensees (FFLs), gun owners, and the public by prioritizing public safety and collaboration.” With these latest moves, ATF continues to deliver on that promise.

Stay tuned to www.nraila.org as we bring you the latest updates on this developing story.