You are trying to apply logic and common sense to government rules and regulations. It doesn't work that way. As an example, many people have made legal silencers (approved Form 1, tax stamp) out of materials you can find at a hardware store. But the BATFE has ruled that if you sell the parts needed to make a silencer, and you aren't a SOT and go through the BATFE, you are illegally selling silencers. So is Home Depot illegally selling silencer parts, and therefore silencers? Not according to the BATFE.
When is a silencer a silencer?
- Thread starter Caliper_Mi
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Draw up a blueprint of your design.
Send it to BATFE at
NFA Div. BATFE
P.O box 530298
Atlanta Ga. 30353-0298
If they approve it you are good to go!
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Theohazard
Member
Ha, yeah. No, I’m just trying to understand the legal reasoning being used here. And yeah, I know I’m seeming naive and that the ATF’s legal reasoning isn’t always clear and doesn’t always seem to make sense, but that doesn’t stop me from being curious.
adcoch1
Member
I think the answer to "why" is "because we can". They get to decide based pn the court's bias, weather or not you're guilty or innocent of a crime. It is vague on purpose, because in truth, it is illegal for the atf to restrict out 2a rights. But they are big enough to make your life hell, so we as law abiding citizens go the path of least resistance and ask for permission first. Technically, your muffler or moderator or oil filter are not under their authority, until they decide it is. So, do it with a clear conscience and don't make an example of youself, and you are probably fine. Post a how to video and talk about how to get around the nfa, well, you're screwed... Clear as mud, eh?
You can say it's not a silencer all day long but it obviously is a silencer, not a lawnmower muffler or an oil filter or a flashlight. It's just exempt from regulation. The ONLY thing making the silencer and its parts exempt from regulation is permanent attachment to something that is not a firearm. If the reason for that exemption goes away then the exemption goes away.
Ok, here's an easy way to see what's going on.
Let's say you buy two identical silencers and permanently attach one of them to a muzzle loader but do so in a manner that allows you to remove parts from it.
Now take both silencers apart. You claim that some of those parts are regulated while others are exempt from regulation because they came off a silencer that is exempt from regulation. Does it make any sense that the BATF would agree with that assertion? What would the implications be if they did agree?
It's a right old mess, as they say around these parts of the world. We have our share of it here in the UK also.
We have detachable suppressors that are licensed and detachable suppressors that are not licensed. In some cases it is the very same make and model of suppressor!
For example the ASE Utra Dual Rimfire suppressor can be used for air rifles or rimfire .22s. It is an all-steel suppressor which is fully user-serviceable and has removable individual baffles and end cap. I can buy one of those over the counter and put that on an air rifle and I am good to go. However if I put that on a .22LR rifle that's a big no-no! To make matters more interesting, our suppressors do not require serial numbers by law, regardless of whether they are licensed or not. So if you had two of those suppressors and one was licensed and the other was not, it would be an easy mistake to get them mixed up. Same applies to baffles during cleaning.
Then there is the shotgun scenario. Unfortunately we need licenses for shotguns, but there are two kinds of licenses. One is for guns with no more than 2+1 capacity, known as a Section 2 license. The other one is for guns with more than 2+1 capacity, known as a Section 1 license. You can buy a shotgun suppressor for an S2 gun without a license. But if it is for an S1 gun, it takes up an S1 slot on your license. You could end up with two identical suppressors, one licensed and the other not. If you used them both and had them in a range bag and they got mixed up, there would be no way to tell them apart!
Another quirk in the laws we have here is to do with flash hiders. A flash hider is a licensed item like a suppressor for a firearm. But you could have a muzzle device with the exact same geometry and materials as a flash hider, only this time it is sold as a compensator and then it is sold without a licence required!
Ideally, all these suppressors should simply be off the shelf accessories with no licensing requirements at all. Like compensators and muzzle brakes.
The most prudent thing to do (applies to the UK and USA) is check with relevant licensing authorities before doing something you are unsure of and which could have legal consequences.
dogtown tom
Member
The idea that "wipes" are not silencer parts doesn't match up with Federal law.
While ATF did issue an opinion letter in 1999 that said the possessor could replace his wipes, that is no longer valid.
Read this http://www.thefirearmblog.com/blog/2017/03/20/wipes-silencer-parts/
dogtown tom
Member
Because an oil filter is not manufactured to be a silencer/suppressor/muffler for a firearm. It matters not one bit that you can adapt one to fit on the end of a barrel as a homemade silencer.
If you build a device to reduce the sound of a projectile it will be classified as a silencer/suppressor/muffler UNLESS permanently attached to a muzzleloader or air rifle. Nothing prevents you from filing a Form 1, receiving the stamp and subsequently detaching that muzzleloader silencer and attaching it to a Title I firearm.
dogtown tom
Member
Not exactly. ATF didn't issue a ruling because Federal law already defined "silencer":
Title 18 Chapter 44 921 Definitions:
(24) The terms ‘‘firearm silencer’’ and ‘‘firearm
muffler’’ mean any device for silencing, muffling,
or diminishing the report of a portable
firearm, including any combination of parts, designed
or redesigned, and intended for use in assembling
or fabricating a firearm silencer or
firearm muffler, and any part intended only for
use in such assembly or fabrication.
The 1999 ATF opinion letter I linked to above was a odd interpretation to say the least.
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dogtown tom
Member
That's never been a "Ruling" by ATF.
The companies that ATF shut down were clearly selling parts intended to be used in homemade "solvent trap" type silencers. I believe one even called some parts replacement parts for your silencer.
Of course Home Depot isn't selling silencer parts. The fact that some items found on the shelf at Home Depot can be used to make a homemade silencer doesn't change what the original intended use is. Use that item to make something regulated by Federal law? Better pay the tax.
Theohazard
Member
Sure, but that non-silencer “moderator” isn’t manufactured to be a silencer/suppressor/moderator for a firearm either, since a muzzle loader isn’t legally a firearm.
Going by the legal definition of silencer above, it seems that neither the moderator by itself nor any of its parts should be considered a silencer or silencer parts since they’re not intended for the purpose of silencing a firearm, and therefore it shouldn’t matter if the whole thing or its parts are removed or not. But that’s just my non-lawyer, layman opinion, which obviously means absolutely nothing in the real world.
My question simply arises from the fact that while a non-silencer moderator looks like a silencer and is designed to be used on a device that fires a projectile, it seems like it shouldn’t actually make any legal difference if it’s removed since it still was never designed to be used on an actual firearm and the user didn’t intend to use it on a firearm.
So I suppose the legal difference here is that — once removed from a muzzle loader — a non-silencer moderator is virtually indistinguishable from a real silencer, and therefore the idea of the manufacturer’s and the user’s intent is irrelevant?
Just to be clear, I’m not arguing that any of you are wrong, and I’m not arguing that — if we apply common sense — this thing isn’t basically a silencer in every way but the name. What I’m trying to understand here is the legal reasoning being used, since I’m not at all a lawyer.
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That is the current reading!
I could be wrong but I think the "and any part intended only for use in such assembly or fabrication" was added in 1986.
Before 1986 you could legally purchase, own and posses M16 fire control parts and auto sears! These were just parts!
You could not legally install these parts in an AR15 unless you had an approved form 1 for a machine gun.
You could not legally assemble the silencer parts either unless you had an approved form 1 for a silencer.
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dogtown tom
Member
But it IS a silencer, just not subject to the NFA and Federal tax as long as it's permanently mounted to a muzzleloader.
pdsmith505
Member
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I had forgotten about an analogy that is more fitting....
https://www.atf.gov/firearms/qa/are-paintball-andor-airgun-sound-suppressers-nfa-firearms
Paintball guns are even further from being a firearm than a muzzleloader. While a ML is actually, but not legally, a firearm, a paintball gun is neither.
Yet, because mufflers for paintball guns could potentially be adapted to firearms, they are considered silencers too.
I suppose the difference between the tube of a non-firearm muffler and a flashlight tube is that the flashlight tube was not designed / has not been redesigned to reduce the report of a projectile being fired, while that is the outer tube's designed (or redesigned, if it used to be a flaslight or oil filter) purpose.
https://www.atf.gov/firearms/qa/are-paintball-andor-airgun-sound-suppressers-nfa-firearms
Paintball guns are even further from being a firearm than a muzzleloader. While a ML is actually, but not legally, a firearm, a paintball gun is neither.
Yet, because mufflers for paintball guns could potentially be adapted to firearms, they are considered silencers too.
I suppose the difference between the tube of a non-firearm muffler and a flashlight tube is that the flashlight tube was not designed / has not been redesigned to reduce the report of a projectile being fired, while that is the outer tube's designed (or redesigned, if it used to be a flaslight or oil filter) purpose.
Very interesting. I had missed the 2017 re-evaluation of the issue. Thanks for the update!
Going by the legal definition, and to the extent that this statement is true, it is ONLY true because neither the silencer nor its parts can be removed.
Obviously the one thing that makes the silencer and its parts not legally silencer/silencer parts MUST matter.
If permanent attachment doesn't matter then the silencer and its parts are still fully regulated even while permanently attached. Clearly that is false. If it does matter--and clearly it does--then it is nonsense to say it shouldn't matter.
Either permanent attachment makes a difference or it doesn't. It makes no sense to claim that it both does and doesn't matter.
I provided you with an excellent way to understand the situation in my 2 silencer example but it seems to have escaped your notice, or at least your comment.
Permanently attaching a silencer (and its parts) to something other than a firearm does NOT make it (or its parts) into something different. It merely exempts it (and its parts) from regulation. Calling it something other than 'silencer' doesn't change anything at all.
Go back and read the 2 silencer example I provided. That should make things very clear.
If it were actually possible to magically make a silencer into something else by permanently attaching it to something besides a firearm, thereby turning its parts into something other than silencer parts, then anyone could "deregulate" silencer parts by merely welding silencers to things other than firearms, and then removing parts from them.
Theohazard
Member
Agreed. My argument evolved as I realized that if the internal parts weren't considered silencer parts even if removed, then by the same logic the whole moderator could also be removed and still wouldn't be considered a silencer. I should have made that transition in my argument more clear.
I did comment on it above:
"So I suppose the legal difference here is that — once removed from a muzzle loader — a non-silencer moderator is virtually indistinguishable from a real silencer, and therefore the idea of the manufacturer’s and the user’s intent is irrelevant?"
Again, I'm not arguing that any of you are wrong, I'm simply presenting these questions as arguments so I can better understand the legalities behind this.
My assertion so far has simply been this: A non-silencer moderator can't meet the federal definition of "silencer" that Tom posted above since it wasn't designed to be used on a firearm, and it will continue to not be a silencer if the user doesn't install it (or intend to install it) on a firearm. My example of the oil filter makes logical sense: neither are designed to be used on firearms, neither are owned with the intention of being used on firearm, therefore both become silencers only if the owner uses them (or intends to use them) on firearms. Obviously, that assertion is incorrect, and I'm trying to understand the legal reason why.
Here is my understanding of what @JohnKSa and @dogtown tom are saying (if I'm still misunderstanding, please let me know):
My arguments and my comparison with an oil filter would make sense if the law was a purely black-and-white thing, but it's not. Sure, by the letter of the text of the federal definition of "silencer", this moderator isn't a silencer. But law involves human judgment and analysis. Since this item is designed identically to a real silencer, it doesn't matter what its intended use is; a court would look at the item and rule that it's a silencer. Therefore, the only way to keep it from being a silencer is to physically render incapable of being used as one.
Ah. I saw that but could not tell it was referring to my example.
Both of these statements are false. The latter should be blatantly obvious, the former barely less so.
The only thing that makes the silencer exempt from regulation is permanent attachment. How does one get from there to the idea that removing it (eliminating the one thing that exempts it from regulation) has no effect on its legal status?
I do agree with one part of the statement: " then by the same logic" is correct. Unfortunately the logic, in both cases is problematic and inconsistent with the law.
Your argument is getting circular. You started by arguing that the permanent attachment of the silencer somehow conferred unregulated status on any parts removed from it. Once that argument was shown to be untenable, rather than accept the obvious conclusion, you have changed to arguing that both the parts AND the silencer enjoy the same unregulated status once removed.
I will admit that the logic is, at least, consistent. And it is true that once removed, they have the same legal status, however since permanent attachment was the only thing that gave them exemption from regulation they can not possibly be exempt if they aren't permanently attached. They are once again fully regulated.
It's more accurate to say that the silencer or its parts, if not permanently attached to the muzzle loader, are regulated. The idea that the silencer and its parts magically become something different when permanently attached to the muzzle loader doesn't pass muster. It's not that they become something else, it is just that they are exempt from regulation because they are permanently attached.
It's even more "creative" to try to claim that not only does permanent attachment magically change them somehow, but also that somehow the change persists even if they are removed.
This is absolutely incorrect. If, somehow the permanently attached silencer is removed, the INSTANT that it is removed from the muzzle loader it becomes regulated. Silencers and silencer parts do NOT have to be installed on a firearm to meet the legal definition.
It is because oil filters, flashlight tube, etc. are not silencers. They can be adapted to be silencers, and if it is apparent that has happened then they become regulated as silencers. A silencer is already a silencer and that makes it different from something must be adapted to be a silencer.
However the entire oil filter/flashlight part argument is really a red herring, intentional or otherwise. The focus needs to be on permanent attachment because that is what really makes the difference.
It is, quite obviously, a silencer, it is just that permanently attaching it to a muzzle loader prevents it from being used on a firearm and therefore it isn't regulated.
Ok, back to my 2 silencer example. It is very simple--nothing at all difficult to understand.
1. The two silencers are identical in every respect in the beginning.
2. After permanent attachment, how are they different? (Answer: They are not physically different and calling one of them something different does not/can not change that fact. However, by virtue of its permanent attachment, the permanently attached silencer is now exempt from regulation.)
3. If the silencer that was permanently attached was somehow removed, how are the two silencers different now? (Answer: They are once again identical in every respect--obviously including from a regulatory standpoint.)
4. Does the silencer after being removed have a different legal status than its identical twin because it was attached to the muzzle loader for awhile? (Answer: Absolutely not. The two silencers are once again identical in every respect.) Does the legal status of its parts change? (Answer: Absolutely not--how could it since the two silencers are once again identical in every respect.)
5. If the parts can not be removed from the still permanently attached silencer, they are different from the parts on the unattached silencer. How are they different? (Answer: They are not physically different, however by virtue of their permanent attachment to a non-firearm they are exempt from regulation.)
6. If parts are removed from the still permanently attached silencer, how are they now different from the parts on the unattached silencer? (Answer: They are quite obviously identical in every respect, including regulation, to the parts from the unattached silencer.)
7. If parts, once removed from a silencer that is permanently attached to a non-firearm, remain unregulated, explain how this could possibly be consistent with the ruling that silencer parts are regulated as silencers. (Answer: It can not be explained. It would be obviously contradictory both in terms of common sense and in terms of the legal definitions.)
Theohazard
Member
Agreed. Like I said, my argument has evolved as I’ve thought about it more. And either I’m not doing a good job getting my current point across, or I’m being exceptionally obtuse. Or maybe it’s just that some of my previous posts have clouded the issue. So please read and respond to this post as if it was separate from my others, and let’s forget about the whole permanent attachment part and just focus on what makes this moderator legally a silencer.
I understand that I’m incorrect in my assertion that this item isn’t a silencer. My question is simply “why”; I understand from a common sense standpoint but not from a legal standpoint.
Your previous post was based on the premise that this item is a silencer that’s simply unregulated since it’s permanently attached to a non-firearm. I can accept that. And if that’s the case, I agree entirely and I have no questions about that stance. But my question is simply this: What makes it legally a silencer in the first place? (And before you answer that, please read the rest of this post).
Let’s pretend this moderator isn’t just an off-the-shelf silencer that was permanently attached to a muzzleloader. Let’s pretend this item is made by a separate company whose only product is this moderator that’s specifically designed and intended solely for use on a muzzleloader. Now let’s compare it to the legal definition of “silencer”:
“The term ‘Firearm Silencer’ or ‘Firearm Muffler’ means any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for the use in assembling or fabricating a firearm silencer or firearm muffler, any part intended only for use in such assembly or fabrication.”
This item isn’t designed for the purpose of “diminishing the report of a portable firearm”. It was conceived and designed for the sole purpose of diminishing the report of a portable non-firearm. Therefore it doesn’t meet the actual legal definition of a silencer.
Again, I’ll repeat the oil filter example in order to clarify my question: Both this muzzleloader moderator and an oil filter are designed and intended to be used with things that aren’t firearms. Also, both can be used as a silencer on something that’s legally a firearm, but that’s not either of their original purposes.
So what specifically makes the oil filter not a silencer and the moderator a silencer in a legal sense? Is there a wording of the law that I’m misunderstanding, or is it simply the fact that a muzzleloader moderator is physically similar enough to a real silencer that any court would be expected to rule that they’re legally the same thing?
Elkins45
Member
If one were to remove a baffle from the Silencerco Maxim 50 and play “show and tell” with it, they would describe it as part of a device that muffled the sound of a gunshot. That’s what it is, and in order to possess it you either need a NFA stamp or an exemption. By sealing it up in a can and welding it to a gun that isn’t a gun (non-firearm by GCA 68 standards) you gain the exemption.
A silencer permanently affixed to a ML Rifle is still a silencer, it’s just not a federally regulated one. Once detached from the “exemption stick” it instantly becomes subject to NFA 34.
I don’t find this terribly complicated to understand.
A silencer permanently affixed to a ML Rifle is still a silencer, it’s just not a federally regulated one. Once detached from the “exemption stick” it instantly becomes subject to NFA 34.
I don’t find this terribly complicated to understand.
Theohazard
Member
Then you should be able to answer the questions I posed in my previous post.
Again, I understand the common-sense answer, but what is the legal reasoning used to answer the questions I posed in my previous post?
Elkins45
Member
Am I correct that your question is: why is this item a silencer?
My reply is that it is a silencer because it was designed and produced to reduce the sound created by a gunshot. It has no other use. It was made to quiet the muzzle blast of a gun. It has no other use. As sold it is not attached to a firearm and indeed it cannot be. Therefore it can’t be used to silence a firearm. But it is being used to silence a gun.
Once removed from the non-firearm it immediately becomes a device which could be used to silence a portable firearm. It can’t filter your oil or make your mower not rattle your teeth. It doesn’t protect your engine from freezing or even trap solvents when cleaning your rifle. It muffles gunshots. That’s all it does. It was prevented from muffling a firearm only because the attachment point is blocked by a non-firearm. Once the non-firearm is removed it now becomes possible to slap it onto a firearm.
So it’s legally not a silencer when welded to a ML because the ATF is gritting their teeth and acknowledging that it takes advantage of a loophole in the wording of the law. But once you saw off the gun they stop gritting their teeth and starting getting out their handcuffs.
My reply is that it is a silencer because it was designed and produced to reduce the sound created by a gunshot. It has no other use. It was made to quiet the muzzle blast of a gun. It has no other use. As sold it is not attached to a firearm and indeed it cannot be. Therefore it can’t be used to silence a firearm. But it is being used to silence a gun.
Once removed from the non-firearm it immediately becomes a device which could be used to silence a portable firearm. It can’t filter your oil or make your mower not rattle your teeth. It doesn’t protect your engine from freezing or even trap solvents when cleaning your rifle. It muffles gunshots. That’s all it does. It was prevented from muffling a firearm only because the attachment point is blocked by a non-firearm. Once the non-firearm is removed it now becomes possible to slap it onto a firearm.
So it’s legally not a silencer when welded to a ML because the ATF is gritting their teeth and acknowledging that it takes advantage of a loophole in the wording of the law. But once you saw off the gun they stop gritting their teeth and starting getting out their handcuffs.
Theohazard
Member
But federal law specifically says:
“The term ‘Firearm Silencer’ or ‘Firearm Muffler’ means any device for silencing, muffling, or diminishing the report of a portable firearm”
The law specifically says “firearm”. And a muzzleloader isn’t a firearm. The law says nothing about a gunshot or a projectile.
This hypothetical device I referred to two posts ago isn’t made to silence, muffle, or diminish the report of a portable firearm since its purpose-built for a muzzleloader and a muzzleloader isn’t a firearm.
Yes, that’s the common-sense reasoning. And I agree with your logic. But is that the specific legal reasoning that a court would use? Because, just as there’s a use for an oil filter other than using it on a firearm, there’s also a use for that purpose-built muzzleloader moderator other than using it on a firearm: putting on a muzzleloader which isn’t legally a firearm.
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Elkins45
Member
So to simplify that ^^^^^ just a bit: ATF thinks it IS designed to be a silencer (that is, to muffle the report of a firearm) but they acknowledge that it is impossible to use it as such in the current configuration.
In other words: there is no functional distinction between a firearm silencer and a non-firearm gun silencer, and therefore no legal one except for the fact it can’t be used as one in the way it is configured by the maker.
In other words: there is no functional distinction between a firearm silencer and a non-firearm gun silencer, and therefore no legal one except for the fact it can’t be used as one in the way it is configured by the maker.
Theohazard
Member
So what you’re saying is that if you could somehow prove that the device isn’t designed to be used on a firearm, then you’d have a strong argument that it isn’t legally a silencer?
Or, since the two are similar enough that they’d always be functionally interchangeable, is the real answer that the manufacturer’s intent doesn’t really mean as much as I think it should mean in a legal sense?
Or, since the two are similar enough that they’d always be functionally interchangeable, is the real answer that the manufacturer’s intent doesn’t really mean as much as I think it should mean in a legal sense?
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