The legal issues associated with completing 80% weapons...

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Walt Sherrill

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In a related discussion on this forum, the problems faced when completing an 80% Glock frame are addressed. Some expressed concerns about creating a non-serialized weapon, while a few relished the idea. Similar discussions can be found on other forums where the difficulties of completing 80% ARs are addressed.

By reading BATF documents and related regulations, it's clear that the 80% frame CAN be completed legally, and owned by the builder, and that a serial number is NOT required on the completed weapon. The BATF does, however, recommend that the builder serialize the weapon.

I've looked for answers on this topic over the past year or two, and have found a lot of opinions that were are seldom backed by regulatory citations. Thus far, I have found NO definitive answers about whether this NEW weapon can later be sold, transferred, or passed on to heirs upon the builder's death. If the weapon is NOT destroyed and is later transferred, the next owner may be faced with a different type of problem, not being the builder, if he or she want's to dispose of or transfer the weapon.

I hold an 03 [C&R] FFL license (as do many on this forum) and have spent some time reading through the regs over the years. Until I retired some years ago, I spent a good bit of time on the job trying to understand the government regulations and tax codes that affect and control the financial services industry. What have I found? I've found that laymen and non-specialists sometimes interpret the language of government codes and regulations far differently than do bank examiners, IRS agents, BATF agents, or judges. What the regs seem to clearly say isn't always as clear as it seems.

I don't know of any legal cases, rulings, or BATF interpretations that address these issues -- but I also know that finding this information isn't easy.

What do you KNOW for sure about the legal issues associated with these types of weapons?
 
I read your questions on the other thread and I have a couple opinions on the matter (I know, you weren't looking for opinions, but this is a forum and not a court room). Generally, I think you want answers that don't exist. I feel like your posts were looking for a guarantee when none can be provided. As you stated, laws and regulations are complex and are up to interpretation. Therefore, you must follow case law as a general rule. But I don't know of any 80% receiver examples to cite.

I think if you are looking for more laws, check into "homemade firearms" laws in general. Because in reality, that is what 80% receivers fall under as the term "80%" is not a specific ATF term, as I understand it. Pretty much, if you build your own firearm, it's just easier to assume it is for you only and you will never transfer it.

So, unless you are in court, with a judge and a bunch of lawyers, no one may be able to give you an example.

-If you are truly concerned, call a lawyer.
-If you are still concerned, contact the ATF (I don't recommend) and get a written answer to your questions.
-If you want an 80% receiver but are worried about serial numbers, give it one. It's not required, but if it makes you sleep better at night, go for it.
-If you build an 80% receiver into a firearm and are worried about transfers, then don't transfer it. Or just sell it as a parts kit and destroy the cheap receiver.
-If you're worried about transfers after you die, then don't die.
-If it concerns you that much, don't build one.

A couple other points you brought up in the other thread dealt with private party sales and transfers. That varies by state and those guidelines are pretty well laid out. If you don't trust that system, then no person on a forum can comfort you.

You also asked a question about using an existing Glock and transferring the parts onto an 80% receiver. The parts do not make a gun. The only legal firearm part of a Glock (same as as AR) is the serialized frame/receiver. So no, an 80% receiver is NOT to be serialized the same as your old donor Glock. The frame is considered a new, separate firearm (after it goes from 80% to 100%). Again, you do not have to serialize your new 100% frame. You can, but you don't have to. You can serialize it 1234567890 or BUTTMUNCH69 or even IHATETHEATF. You can order every single part online, so you do not need a donor Glock or AR or 1911 or whatever platform you are building off of...

But again, alot depends on state laws so if you have to register a firearm, then that's another story. So check your local laws, or call a firearms lawyer.

So if the police give you a hard time about it, it's because they may not know the laws. And if they don't, call a lawyer. Actually, anytime police and firearms are involved, good or bad, 80% or not, call a lawyer.

A general distrust of regulations and the government's interpretation of them can applied to regular firearms too. And cars. And food. And basically everything. No one can ever guarantee that you won't ever have any sort of legal problem ever.

And when you do.... call a lawyer.
 
I had read through all of this before, but the ATF links are good resources and they give you access to other regulations and rulings and letters. The regs on disk and printed copies are a bit harder to use.

It seems that IF the original owner (i.e., gun maker) goes to the trouble of putting a serial number on the completed gun, and perhaps adds a minimum of other information, there should be no real problems if the gun is ever transferred to another person. It shouldn't be a problem for the gun maker, either, as long as he or she doesn't try to turn that process into a business (which would arguably require an federal firearms license). The legality of subsequent transfers has been a concern for me -- because it could (not WILL) leave someone else holding the bag with what might appear to be an "illegal" (unserialized) weapon.

This is all MY interpretation/opinion of subsequent gun transfers, and it seems to make sense -- but it's only a "theory" that has not been tested. Like some of the comments in the AR (ammonland) discussions, opinions are a lot more common than actual legal rulings or interpretations, and worth what you paid for them. ($0.00).

I've found that by reading about other problem cases, the BATF doesn't readily offer letter rulings just because there's a question that needs to be answered. And as noted, there's not a lot of case law that is easily accessed by laymen. It seems that unless you're an attorney -- or, perhaps a student at a major university with a law school -- with access to some of the better legal databases, it's hard to find that sort of information.

If I go this route, you can be sure I'll serialize the weapon and add other identifying information.
 
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I don't want to drag the other thread of topic so I thought I would quote this in here.

Walt Sherrill said:
I suspect that law enforcement officers, should they ever find an owner with an unserialized weapon in his/her possession, may not be any more conversant with the controlling regulations (and details), than most of us -- and if so, that weapon will certainly be confiscated -- at least for a while.
Click to expand...

First of all if you are legally carrying with your permit and they do not have probable cause that you've committed a crime then they have no right to inspect your firearm to see if there is a serial number on it or not. Its none of there business who built your gun and they are unlikely to care if you told them.
 
I agree that probable cause is a protection. But you're talking about a best-case scenario, and we don't always get them in the real world.
  • What if you're legally carrying and you must properly use lethal force to protect yourself -- or someone claims you threatened them with that weapon? In the first case, I think the weapon will be, at least temporarily, confiscated, and in the second case it MIGHT be confiscated or examined.
  • What If you're (rightly or wrongly) arrested for some infraction, and you're carrying? Speeding X mph over the limit can get you arrested in some jurisdictions. If you're arrested, the weapon will be controlled by the arresting officer's agency/department.
My assumption is that situations can arise where a law enforcement officer can PROPERLY gain control of an unserialized weapon, and when that happens his or her agency will then examine it, if only to properly and fully identify and control it as your personal property (via the data found on form 4473) while it's in the agency's/department's custody.

If that happens, it arguably could become their business to ask who built your gun. (There's really now correct way to identify the weapon...) What paperwork or documents should you keep on hand at home to speed up this process and show that you have a legal weapon?

I don't know the answers to these questions, and there might be others. (As I've already said, if I build my own, it will be serialized.) But the answers might be of some interest to others thinking about going this route.
 
I think to many of you worry about “what if” “would be” and “could be.” Some of you sound like yogi, some of you sound like boo boo.
Just do it if you are yogi
If you are boo boo.... “yogi, I don’t think that’s a good idea”
Well then don’t do it.

No reason to blow it out of proportion or give people ideas that could be used against gun owners as the subject in today’s politics seem to be unnoticed for now.
 
No reason to blow it out of proportion or give people ideas that could be used against gun owners as the subject in today’s politics seem to be unnoticed for now.
Click to expand...

I'm asking these questions HERE, not on a forum where the general public is likely to read or get riled. Is there a way to ask similar questions in a more subdued manner?

How does this situation really differ from a person building a car that doesn't have a valid VIN number? What must that builder do to sell that homebuilt car, or put it on the road? Can the builder get a title? Can the builder or the buyer get liability insurance for an vehicle without a valid VIN, and isn't liability insurance required in most states to get a license plate? Do the state require emissions testing for such a vehicle? If you've got a farm or ranch, it can be used a lot and never hit the highway, and a lot of old trucks and cars provide years of service in that role.

If it ever happens that the finished weapon is involved in a lethal force situation, do you doubt that the lack of a serial number on a weapon in that situation might make the news? What do you think the anti-gun types will make of that?

We can all agree that such a weapon is legal, but so is an 18-year old buying an AR... and you see the stink that's arisen over that situation.

Rather than saying "don't worry, be happy," help us find some answers that address the questions and give us more than "don't worry about it."
 
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Maybe Frank or one of the mods in the legal forum might care to comment.

Having said that, I don't think that an 80 % build would be treated any differently then the multitude of factory firearms manufactured without S/Ns in circulation and being sold everyday, like the Savage Fox 16 guage SxS shotgun with no serial number I recently aquired. I purchased it from a licensed dealer, filled out the 4473, and the dealer put NVN (No Visible Number) in the serial number block on the form. Legally procured, but no serial number recorded on the 4473 or store receipt.

Bottom line is that until we have established case law, everything is open to interpretation.
 
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I have a C&R rifle that doesn't have a serial number, and have had other older guns that weren't serialized. Those gun are/were old, and it's not unusual for many older guns to NOT be serialized if made before 1934.

Newer guns aren't looked at in the same way. A Glock look-alike won't be treated like a gun made at the turn of the 20th century or before 1934 if there's no serial number by an FFL.

If there are steps that will allow a person who has turned an 80% frame into a firearm to later transfer, gift or pass on (through inheritance) know, steps would be good to know. Just being able to fill out ALL of the required information from form 4473 -- most of which are still required for that older Fox 16 gauge -- might be enough. More than just a serial number is require don that form.

------------------

While the following gun is NOT an example of an 80% gun made into an actual weapon, it is an interesting and difficult situation for the owner.

The gun, in the link, is a beautifully engraved WWI DWM Luger, It was first shown on this forum a while back, and it has had it's serial number removed when the gun was engraved, apparently before WWII. It was a WWII "bringback" and the owner's father described where it was captured from a German officer. The place where the serial number is usually found (and the rest of the gun) is covered with very high quality European-styled engraving.

We also don't know if the gun owner has the papers provided by the U.S. military when some guns were brought back from overseas. That would provide some type of provenance which could be useful. (Some of these guns come back "unofficially" however.)

(I don't know if a gun made BEFORE 1934 that WAS serialized and then had the serial number removed must still meet the requirements of the 1934 law. That may be an out for the owner in question -- and something to investigate.)

Several folks looking at the photos said they felt like crying... I did. THAT gun may be a big problem for the owner, and I'm pretty sure that "NSF" won't work for this gun. Here's a link -- the photos are in the first few comments. https://www.thehighroad.org/index.php?threads/wwi-luger-should-i-sell.832279/#post-10754106
 
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Striker said:
Maybe Frank or one of the mods in the legal forum might care to comment....
Click to expand...

I'm afraid that I can't add anything useful to the the substantive discussion here because I've never had occasion to delve into the subject. I suspect there's not a lot out there beyond the sources cited in post 3.

But I did want to comment on this:
Walt Sherrill said:
....I've found that laymen and non-specialists sometimes interpret the language of government codes and regulations far differently than do bank examiners, IRS agents, BATF agents, or judges. What the regs seem to clearly say isn't always as clear as it seems.

I don't know of any legal cases, rulings, or BATF interpretations that address these issues -- but I also know that finding this information isn't easy.

What do you KNOW for sure about the legal issues associated with these types of weapons?
Click to expand...

In real world legal terms case law is the tip of the iceberg. As with icebergs, 90% of real world, practical legal goings on are out of sight. Case law consists of the reported, published decisions of courts of appeal. But a lot goes on at the trial court level, and that doesn't get reported. And when regulators are involved a lot of matters are informally resolved during the investigative stage -- before any enforcement action is begun or any charges filed.

I suspect that the vast majority of any issues ATF has had with guns made by hobbyists were resolved informally. And therefore there's probably not much, if any, useful case law out there.
 
Hmm, sheriff blanket-checking all serials 'just cuz' some person wrongly complained and confiscating extrajudicially without followup? Seems dubious, or fictitious, but then again, CA (and they have their own laws beyond federal ones in play for built guns).

I'm not sure why people think lack of serial on a built gun is any sort of controversy as far as federal law. There is no question that is what the law says, there is no question there is a large and vibrant builder community that has operated this way without prosecution for decades, and there is no question that police flat out enforce their ignorant whims sometime, and that guns are a topic that brings out such behavior in a subset of officers. The 'sherpas' have proven for decades this path to the summit is a safe one so long as you don't do anything dumb (change the order of operations, stray from instructions, attract attention which is unsafe with any gun, annoying the ATF with already-answered questions, etc)

Much like "his gun was unregistered," the serial number is a meme that people have internalized, when it actually only pertains to a very specific, albeit predominant, class of firearms produced or imported commercially. To paraphrase Idiocracy; "Your gun has no tattoo! Ahh! Ahh!" Notice that no one ever asks if guns have to be marked with chambering or the maker's name or address; the exact same requirement for serials requires that information as well.
 
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Walt Sherrill said:
I've found that laymen and non-specialists sometimes interpret the language of government codes and regulations far differently than do bank examiners, IRS agents, BATF agents, or judges. What the regs seem to clearly say isn't always as clear as it seems.
Click to expand...
Well, if I was legally allowed to interpret documents to benefit myself at the expense of others without question, you probably wouldn't understand my interpretations, either ;)

The main reason this is confusing, is because the ATF hasn't always been very up front about this, and has at times been disingenuous ("we recommend built guns be serialized" as though we are supposed to take Uncle Sam's lethal-force-authorized 'recommendation' as anything but a direct order backed by aforementioned licensed dog-killers).

Here's the law (it's the 68 GCA Section 923i, not the 34 NFA);
(i) Licensed importers and licensed manufacturers shall identify, by means of a serial number engraved or cast on the receiver or frame of the weapon, in such manner as the Secretary shall by regulations prescribe, each firearm imported or manufactured by such importer or manufacturer. The serial number of any semiautomatic assault weapon manufactured after the date of the enactment of this sentence shall clearly show the date on which the weapon was manufactured. A large capacity ammunition feeding device manufactured after the date of the enactment of this sentence shall be identified by a serial number that clearly shows that the device was manufactured or imported after the effective date of this subsection, and such other identification as the Secretary may by regulation prescribe.
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If a gun has no serial, it is not to be confiscated or assumed 'illegal,' the government is supposed to prove it originated from a licensed manufacturer or importer if they want to make trouble for the owner. That's because built guns are not subject to the marking requirements (no, the law does not explicitly state the exemption, because that is not how laws are written; they typically only state what they do, not what they don't do)

Here's the ATF's explanation;
https://www.atf.gov/file/58216/download

Note the line at the fourth paragraph. "All NFA firearms must be identified by a serial number and other specified markings." All firearms are NFA firearms since the statute classifies and regulates everything it defines as a 'firearm,' but in this case it is short-hand for Title II NFA firearms that require registration and tax-stamp approval prior to construction --well of course those have to be serialized, they're registered by serial number and manufacturer and caliber and owner. This is an example of how the ATF frequently implies that all guns in existence must be serialized; whether it's intentional or due to the previously mentioned unconscious bias of the agents that write these sorts of things, I honestly can't say. What I can say, is this question is asked thousands of times annually, likely hundreds of times annually of the ATF, yet there are millions of unserialized guns built for personal use that are completely legal, and bring no prosecution for that issue from authorities that are familiar with the law.

There is no controversy.
 
barnbwt said:
Here's the law (it's the 68 GCA Section 923i, not the 34 NFA);

...

There is no controversy.
Click to expand...



I agree with your post, but check the source of your citation for 18 USC 923 (i). It looks like your version was taken from the 1994-2004 period (i.e. The last federal assault weapons ban period). It references markings for post-ban semi-auto assault weapons and magazines which no longer appear in code.

Below should be the current verbiage of 18 USC 923 (i):

(i)
Licensed importers and licensed manufacturers shall identify by means of a serial number engraved or cast on the receiver or frame of the weapon, in such manner as the Attorney General shall by regulations prescribe, each firearm imported or manufactured by such importer or manufacturer.
Click to expand...
 
Where'd you find it, btw? Very hard to find the actual code text via search engine (tons of old AWB protest group posts, however, ergo the dated copy; to my knowledge gun marking was unaffected)
 
One trap to be wary of. Remember that BATFE is a FEDERAL agency and is concerned ONLY with FEDERAL law and regulations. So you can ask a BATFE agent a question and receive an answer, the answer you receive may be a narrow one, true and correct, but applicable only in the narrow context of the original question, not a general rule, and will apply only to Federal law. And, even a letter from BATFE has no legal standing unless it is a revenue ruling, a specific type of ruling that has been fully coordinated and binds the agency. You won't go to jail for following bad advice in an ordinary BATFE letter, but you might lose your property, have to pay some additional tax, etc.

Jim
 
barnbwt said:
Where'd you find it, btw? Very hard to find the actual code text via search engine (tons of old AWB protest group posts, however, ergo the dated copy; to my knowledge gun marking was unaffected)
Click to expand...
There are a few good ones out there, but the one I used for this quote was from Cornell's law school. It's not guaranteed 100% accurate (so if you're in real legal trouble, get a lawyer) but they usually do a good job of staying on top of changes and I've found it to be good for my purposes.

https://www.law.cornell.edu/uscode/text/18/923
 
The good ones cost money, I hear...fancy that? I thought for sure it'd be prominently displayed at ATF.gov --nope. Just some poor explanations of what they think it means.
 
Your definitive answer is that, under federal law, YES, you may transfer a title I home made firearm in the same manner as any other title I firearm, including succession. Title II builds would be dealt with as any other NFA weapon.

What you may NOT do is manufacture with the intent to distribute without a license.

What does that mean? How do you prove, if accused of manufacturing and dealing without a license, that you had no such intent? Well, there is no finite timeframe that must pass between manufacture and transfer, nor any figure on the number of builds that would constitute it (sound familiar? Same as no "cut off" to the number of commercially produced weapons you may transfer without a license). So it really comes down to what is reasonable. Sold a home build you did years ago to a buddy? No problem. Sold a dozen "80" builds you made over the last month? Pretty easy to label that one with intent to distribute.
 
If I were as concerned as the OP about serials on my builds (I’m not), I’d write BATFE and ask them to assign some numbers. Although the regs around this are set up for manufacturers, they’ll happily do it for individuals and home builds. Done.

Ain’t freedom great?
 
Sovblocgunfan said:
If I were as concerned as the OP about serials on my builds (I’m not), I’d write BATFE and ask them to assign some numbers. Although the regs around this are set up for manufacturers, they’ll happily do it for individuals and home builds. Done.

Ain’t freedom great?
Click to expand...
LOL, I think the answer you'd get may be humorous, depending on the agent. ATF doesn't assign serials, nor would they burden themselves so for individual manufacturers.

"Okay sir, you are registered under number 66666666666666. Terminating call."
 
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