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In this issue:
– Article: The Heart of the Debate Over Modified Firearms
– Event: Firearms Industry Supply Chain Conference 2014
The Heart of the Debate Over Modified Firearms
Legislation in 2013 can yield product modifications in 2014. It’s a natural response of a commercial industry to respond to legislation with product modifications that meet consumer demand – except when the “it” is a firearm. Those on the left call it “pushing boundaries.” Those on the right speak “constitution” and “capitalism.”
Is it that manufacturers are caught in the middle or are they trying to navigate a complex maze of federal and state regulations to deliver various models of firearms that can be lawfully sold to consumers in various legal jurisdictions otherwise known as “markets?”
Several manufacturers have recently released new designs and modified designs for firearms with an aim of re-entering commercial markets in Connecticut and New York, for example. The State of California has a separate system that requires manufacturers to submit handguns for evaluation and certification as an acceptable product to sell in CA.
Let’s spend a minute considering this business around state prohibitions cropping up all over the place and how to infuse it into your compliance consciousness. We know that product development can be a lengthy and expensive process, and the last thing any manufacturer wants is to get to the point of releasing a product to market only to see it held up as a test case by a state’s attorney general.
And, one of the main concerns from an FBI/ATF perspective is the creation and pedigree that makes a firearm “traceable.” To this end, there is considerable regulation around when, where, and even to what depth must the manufacturer of certain parts mark the serial number. This same serial number can then find its way onto the ATF Form 4473, for example, as a precursor to the federal background check. This form remains part of the FFL document inventory for a period of 20 years. For both the manufacturer and the FFL dealer or import/exporter, these serial numbers also end up in the book of acquisition and disposition, a record that must be maintained by the FFL, even to the point of transmission of these records to a special ATF records repository.
But that’s not really the current challenge, is it?
The “immediate production” problem emerges at the state level amongst the features associated with individual firearms, from long guns to hand guns. Several rapid-fire bills went into effect on top of some already on the scene. From one type of firearm to the next and from one state to the next, there are different restrictions around core design elements and popular features and accessories in a dozen or more markets.
Part of the struggle is that federal statutes and regulations have evolved around vocabulary that includes technical definitions, while states have been and continue to be drafting legislation with the same or similar words but either not including a definition in the statute or otherwise writing a different definition than the federal government has associated with the same word at the federal level.
How does this articulation of competing language help the FFL to not only comply with federal law, but also to develop a game plan for varying markets?
First, develop a command of federal statutory and regulatory vocabulary. If nothing else, spend time with the definitions of firearms under the Gun Control Act. Print out a copy of 18 U.S.C. §921 and of 26 U.S.C. §5845, “Definitions,” and not only read through it, but keep a copy readily accessible. For example, did you know that within the term “handgun” is the essence that its design permits it to be “fired by the use of a single hand?” Not just a matter of trivia, this definition speaks to the design engineer about form and stability.
Second, familiarize yourself particularly with the ATF Rulings that expound upon these definitions. So, for example, where the statute reads that a “firearm” includes even “the frame or receiver of any such weapon,” be aware of and read ATF Ruling 2012-1 that specifically discusses what “frame” and “receiver” mean in the context of the timing during production that the serial number is to be stamped upon the component part and that serialized part entered into the book of acquisition and disposition.
Think of the federal firearms vocabulary as the word “coffee” is within a coffee shop. You are going to hit variations like lattes, cappuccinos, Café Americanos, decaf, and more, but you are confident that these are coffee-based drinks.
Third, for each state in which you are conducting business, get a hold of the state equivalent of the definitions section of the federal Gun Control Act. Any major statutory section is likely to have a definitions section. Now, that said, be aware that not all state statutes define all terms used in the sections prohibiting various firearms. As you grapple with an understanding of what is and is not permissible for a gun sale in a particular market, make actual notations where definitions are missing at the state level.
Finally, when you are missing definitions, go digging. Dig deeper into the ATF website. Go through product offering and advertising by competitors, and contact them to talk about the challenges you are jointly facing. Find out whether an individual state’s attorney general’s office will offer a written opinion about the firearm you intend to offer for sale or are selling.
Ultimately, there is a certain discipline that can permeate the FFL to carry us forward into these unchartered waters. It’s not that there haven’t been regulations of a similar nature at the state level prior to 2013; it is that the regulations abruptly constricted and we don’t know when or how enforcement will be carried out. Additionally, the states did not design the kind of support system that we have operated within for decades at the federal and California levels, for example.
Go ahead and pour that extra cup of coffee. We’ve entered a new environment, and it may be wait-and-see for a little while yet to come.
Orchid Advisors provides electronic newsletter (“Advisory and Alert”) and blogs for general informational purposes only. It should not be considered a formal or informal interpretation of law. It is not intended as professional counsel, should not be considered legal advice and should not be used as such.