Practical improvements to the NFA approval process

[JustinJ]

The word is that NFA approvals are now taking 15 months which we can all agree really sucks. What are some ideas to "fix" this? Obviously most of us would love to do away with the whole process but that is not likely a realistic goal in the near future. Is it simply a matter of the NFA hiring more staff? Should we all be writing our congressman? Are there any groups active in this arena? Of course, I realize the proposed changes to trusts may be a more pressing issue but the turn around time for approvals right now is absurd.

 

[AlexanderA]

This is a "feature," not a "bug." The unspoken intent is to use all means available, including bureaucratic delays, to destroy the NFA market. Thay can do it with no legislation.

I'm surprised that the legal eagles among the NFA community have not gone on a counteroffensive to sidestep the roadblocks. For example, a few years ago some smart people came up with the idea of using trusts to get around the unwillingness of CLEO's to sign the forms. I think an area that needs to be explored is the setting up of simple corporations, each to own a single NFA item. The NFA item would belong to the corporation, not to an individual or trust. The interest in the corporation (shares) could then change hands freely, with no "transfer" within the meaning of the NFA ever taking place.

 

[Telekinesis]

This is a "feature," not a "bug." The unspoken intent is to use all means available, including bureaucratic delays, to destroy the NFA market. Thay can do it with no legislation.

Exactly. The whole point of the NFA was to deny the ability of people to own the restricted weapons. It wasn't until inflation decreased he effective cost of the transfer tax that people started to purchase NFA weapons in any real numbers.

As for putting each NFA weapon in a corp and transitioning ownership of the corp in order to avoid the transfer process... That's not a new concept, and the general consensus is that it would be seen as tax evasion.

I think that the best way to speed up the process in the near term would be to have more examiners. Though removing suppressors from the NFA would help a lot, I think we still have a while before that becomes a reality.

 

[Bubbles]

The process is slow due to high demand and low throughput. To reduce demand on the system, I suggest removing suppressors as Title II firearms. Really, they're nothing more than an accessory. A suppressor as a stand-alone item doesn't shoot anything; the most you can do is beat someone with it.

 

[dogtown tom]

JustinJ
What are some ideas to "fix" this? Less applicant's for starters.

Is it simply a matter of the NFA hiring more staff? NFA is the National Firearms Act (the law) ATF is the federal agency that processes NFA transfers.

Should we all be writing our congressman? Yes. Remind them of the consequences of sequestration and government shutdowns.

Are there any groups active in this arena? Yes, but it a budget issue, not policy.

Of course, I realize the proposed changes to trusts may be a more pressing issue but the turn around time for approvals right now is absurd. Yup

AlexanderA This is a "feature," not a "bug." The unspoken intent is to use all means available, including bureaucratic delays, to destroy the NFA market. Thay can do it with no legislation.

Nice conspiracy theory, but "we" caused this one, not ATF. ATF had plans to hire additional examiners until sequestration hit, there went that plan.

 

[AlexanderA]

Removing suppressors from the NFA would require new legislation. If we could get the NFA legislatively reopened, why stop there? Take out short-barrelled guns and "AOW's" as well. Maybe limit the NFA to machine guns and destructive devices, while repealing the Hughes Amendment. Or repeal the NFA altogether. But, the chance of any of this happening is slim to none.

Regarding the issue of "tax evasion" in the case of a corporation owning an NFA item, and then the corporation itself changing hands, I'm not aware that this was ever ruled on by the courts. Remember that there's a general rule in tax law that tax statutes have to be interpreted strictly. Anyway, when a corporation changed hands in this way, you could send in a voluntary $200 payment to protect yourself from a charge of evasion. Then let the ATF figure out what to do with the $200 payment. I'll bet they would refund it to you.

 

[medalguy]

Having been primary stockholder in several corporations in the past, I don't believe the added burden, both financial and legal, would be worth the savings whenever you wanted to sell an NFA item. Corporations require both state (usually) and federal tax returns, as well as the payment of taxes on all inventory or assets, plus a lot more. It's far better to use a trust.

 

[OARNGESI]

everyone says if you can buy a gun you can own a nfa item, so they should just set up a website were we pay the 200 and give them the serial # for the item and print out the stamp. then just complete a 4473 at your local dealer and take home your item.

 

[Nuclear]

I think that one could argue that a year or more to exercise a right due to government inaction was a violation of your civil rights. Using the courts to force the ATF to hire enough examiners to get the turn around time reasonable is an approach.

A second suggestion would be to have the tax stamps at any FFL that can sell Title III items, and just call in like you do for any other gun. After all, they aren't doing much more investigation than that, since the ATF has about 100,000 transfers every year, which works out to about 400 a day, or about 30 a day per examiner.

 

[dogtown tom]

Nuclear I think that one could argue that a year or more to exercise a right due to government inaction was a violation of your civil rights.

Then file suit.

Using the courts to force the ATF to hire enough examiners to get the turn around time reasonable is an approach.

Courts don't set the federal budget. Guess who does?

A second suggestion would be to have the tax stamps at any FFL that can sell Title III items, and just call in like you do for any other gun. After all, they aren't doing much more investigation than that, since the ATF has about 100,000 transfers every year, which works out to about 400 a day, or about 30 a day per examiner.

Heck, just run them on a 4473 like every other firearm. Dealer could run the NICS check right then and there.

 

[Nuclear]

Actually the courts can force other parts of the government to do things they don't officially have the funding for, and if I could get a gun rights organization to step up and fund it, I would bring suit.

Can anyone name any other right that one needs to get government approval for, let alone take a year to get said government approval? Suppose you were in custody on some charge, could the government let you sit for a year to do a background check prior to a bond hearing? How about an appeal, could the government let the paperwork just sit for a year before even looking at it? I'd love to hear a prosecutor argue before a judge that he didn't have enough money in his budget to review background checks or appeal paperwork.

 

[Aaron Baker]

Suppose you were in custody on some charge, could the government let you sit for a year to do a background check prior to a bond hearing? How about an appeal, could the government let the paperwork just sit for a year before even looking at it? I'd love to hear a prosecutor argue before a judge that he didn't have enough money in his budget to review background checks or appeal paperwork.

There's no "background check" before bond hearings, at least in Kentucky. However, yes, a judge can set an unreasonably high bond and leave you sitting in jail for years before you get a trial. And it will be justified so long as the criminal justice system continues to be overloaded. Meeting the burden for proving a claim of a violation of your right to a speedy trial is almost insurmountable.

And yes, appeals take forever. If I lose a criminal case today, it will take about a month for the notice of appeal to be filed. It will take another 2 months for the trial court record to reach the appeals court. I have 6 months to file my appellate brief after that. (Although obviously I don't want to be part of the problem, and usually get mine done within a month, but many public defenders (a government employee) are overworked and have to take more time.) Then the attorney general's office is usually going to take their full 6 months before they get their brief submitted. After 1+ year, the case is finally in the hands of the state court of appeals to make their decision. Maybe it will only take them 6 months. Maybe it will take 3 years. There's nothing you can do about it either way.

And yes, being underfunded and overworked is a totally valid excuse that's trotted out every single day by almost every player (defense AND prosecution) in the criminal justice system.

You want to know the common factor at work? What affects both the "criminal" constitutional rights and the 2nd Amendment? No one cares about you. Politicians can't get anywhere by sympathizing with criminal defendants. (And no, it doesn't matter that some people are innocent, that it could just as easily be you in the orange jumpsuit, or that criminal defendants have rights.) Politicians also don't gain traction by sympathizing with machine gun owners.

Your Constitutional rights have to be politically sexy if you want help enforcing them from the politicians that run the government.

Aaron

 

[Nuclear]

The argument I was trying for was that a prosecutor can't go before a judge and argue that a bond hearing should be delayed because the prosecutor hasn't done the research to make an argument in the bond hearing (at least I hope no one goes up there and says "we know nothing about this guy, so let him rot while we don't do our job for another year").

A court of appeals is a different animal than an administrative function.

Note to self, don't get arrested in Kentucky. ;-)

 

[Aaron Baker]

Note to self, don't get arrested in Kentucky. ;-)

Amen.

I think it would be an uphill court battle to get a court to decide that the delays were an infringement of our 2nd Amendment rights, unfortunately. They'd probably decide it was reasonable, considering the "background checks" and highly regulated nature of NFA firearms. And if they don't find a Constitutional infringement, you're not going to be able to get the court to force the NFA branch to hire more examiners. Frankly, it's a bad situation that doesn't seem to have a viable solution, either political or judicial.

Aaron

 

[Ingsoc75]

Allow those with active DOD government security clearances to not require a DOJ background check for every NFA weapon approval.

 

[Mike OTDP]

Actually, I think the lawsuit would work. The key being that we aren't objecting to a thorough background check, all we ask is reasonable timeliness.

That being said, I can see the following options:

1. Run suppressor transfers through NICS. NFA'34 requires the submission of an application with photo and fingerprints...but does not specify what background check gets used. NICS wasn't even a dream in 1934.

2. Have a provision for all people holding a current security clearance to authorize use of that information to expedite processing. I'm nearly certain there are Privacy Act regs that apply - but a written authorization solves the problem.

3. Keep track of who has already been through the process. Update for subsequent applications.

 

[dogtown tom]

Ingsoc75 Allow those with active DOD government security clearances to not require a DOJ background check for every NFA weapon approval.

What makes you think verifying a DOD security clearance will take less time than an FBI NICS check?

 

[rbernie]

JPAS has no human in the loop adjudications.