USA – -(Ammoland.com)- Welcome back to The Legal Brief, the show where we CRUSH the various legal myths and misinformation surrounding various areas of the gun world. I’m your host Adam Kraut and today we are talking about everybody’s favorite topic…Silencers.
Don’t forget, if you are attending the NRA Annual Meeting in Atlanta this year, and you need to, be sure to attend The Gun Collective Panel presented by NRA on Saturday April 29th at 1 PM. You’ll want to be on the third floor at Room B304 and 305 before we get started. The first 350 people are going to be receiving a small prize pack. We’re going to do a mountain of giveaways including some guns, NFA items and a bunch more. You can ask us anything you want and panelists include myself, Jon Patton, FourGuysGuns, Military Arms Channel, 22Plinkster, IraqVeteran8888 and more. Afterwards, there will be a meet and greet so you can hang out and take pictures with us because we want to meet every single one of you. I hope to see you there.
Now, we’ve covered the topic of silencers in one form or another exhaustively here on The Legal Brief. However, we have never covered exactly what is a silencer. Before we jump into the important part of this conversation, I just want to take a minute to explain something that I know I’ll get a lot of flack about in the comments.
We are talking about silencer. They are in fact silencers. For those that don’t know Hiram Percy Maxim is the man who invented them. His first patent was for a “silent firearm”. Another patent issued in 1921 was for a “silencer for guns”. The Congress utilized the term “silencer” in the National Firearms Act of 1934 and Gun Control Act of 1968. It’s a silencer. Now, if you want to make the argument that they should be referred to as suppressors because from a term of art standpoint, a suppressor is not as scary, doesn’t have the negative connotation, etc. that’s fine. I think that is a very valid point. However, to say it isn’t a silencer because it isn’t silent, well….when you invent something you can name it whatever you want.
The definition of a silencer is found in the Gun Control Act which we covered before and you can find that in the YouTube playlist. It states that a “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 use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.”
So what does this mean in layman’s terms? Simply put, a silencer is a complete silencer, such as one you would purchase from a dealer. It is also a combination of parts that were designed for use or redesigned for use in assembling a silencer. Lastly, the term also includes any part that is intended only for use in the assembly or fabrication of a silencer, such as a baffle.
I don’t think we really need to spend anytime on the first part of the definition as that is pretty straight forward. However, the latter two parts of the definition are where the lines become a little blurred. A combination of parts that were designed or redesigned for use in assembling a silencer is rather broad to some degree. It would be rather obvious to state that if you had a bunch of baffles, a tube, a front cap and a rear end cap, which were not from a registered silencer laying around, you have met that criteria. However, there are some other things to consider.
Solvent traps have been all the rage with a certain segment of the gun population. At first blush these kits seem pretty innocuous with their freeze plugs, threaded tubes and threaded caps for the front and rear.
And they probably are…that is until you start drilling holes in things. ATF’s NFA Handbook states that “[an] example of parts redesigned and intended for use in assembling or fabricating a firearm silencer are automotive engine freeze plugs that have been modified by drilling a hole through their center to permit passage of a bullet.” It would seem that ATF believes that once you start drilling holes through the freeze plugs, you’ve crossed the line from harmless automotive part to silencer controlled by the NFA.
Don’t forget, the definition of a silencer also includes any part that is intended only for use in the assembly or fabrication of a silencer. The easiest example of this would include a baffle. It is a silencer part and it is only intended for use in the assembly of a silencer. Other examples would have formerly included things like pistons, front end caps, etc. So why are they not silencer parts now? The definition says that it includes any part “that is intended ONLY for use in the assembly or fabrication of a silencer.” See those holes on the piston? Muzzle brake. All those nifty muzzle brakes that have interchangeable endcaps that also fit on your silencer? Not only intended for the assembly of a silencer. In other words, if the part serves a dual function, it falls outside the scope of that definition.
Lately, there has been some controversy over silencer wipes. For those that don’t know, wipes are a piece of rubber material that are put inside a silencer to provide for more sound reduction.
There are letters from ATF which drew different conclusions as to whether a wipe was a silencer part or not. The Bardwell letter, which is what was relied upon with supplying the wipes, stated that “[i]n regard to the two parts in your cited example, we consider a baffle to be a silencer, but a wipe, which is usually nothing more than a rubber or plastic disc with a hole in it, is generally not considered to be a silencer. Thus an individual owner could replace a wipe.”
However, ATF has also stated that “certain commercially available items such as … rubber washers … may be used to assemble firearm silencers. Such items are unregulated until a possessor assembles, accumulates, or otherwise intends to use an item of this type in a silencer. Once such an item is possessed with the intent to use in assembling or repairing a firearm silencer, it comes within the purview of the NFA and is properly classified as a firearm silencer.” A point of order, the Bardwell Letter was from the Chief of the NFA Branch and the other letter from was from the Firearms Technology Branch. Based upon ATF’s unofficial communication and the FTB letter, it’s probably a safe bet to say that you don’t want to have extra wipes laying around. Even better, look at the determination letter I’ve included which states that Chore Boy scouring pad may be a silencer part.
For those of you who want to know if you can currently build your own silencer, the answer is yes. You just need to fill out a Form 1, submit it to ATF and AFTER it is approved, construct your silencer. It is perfectly legal to make your own, and yes, you must mark it in accordance with the regulations. Just a note of caution, if you possess solvent traps and jigs to make the appropriate holes, etc. without an approved Form 1, you could potentially find yourself entering the world of constructive or presumed intent. Simply put, constructive or presumed intent is a legal theory that there was intent to commit an action presumed from the action itself. For example, having all the necessary parts to make a silencer without actually having made one and not having an approved Form to make one.
Also worth noting, and you may remember this from the “Should you mark your Form 1 NFA Item?” episode, which you can find by going to the playlist on YouTube, that you as a person with an approved Form 1 are “making” an NFA Firearm. More importantly, the law distinguishes between a licensed manufacturer and a maker of a firearm. A manufacturer who is licensed under the Gun Control Act and has paid the special occupational tax to manufacture NFA firearms may replace a component part or parts of a silencer. However, you as a Form 1 maker of a silencer may not. The reason you cannot replace a component part of your homemade silencer goes back to the definition. Remember, any part that is intended solely for use in the assembly of a silencer is a silencer. In other words, you would need to obtain another approved Form 1 for that single part! You can see more about this in the attached letter from FTB. And for those of you who ran out to buy those oil filter adapters and either filed a Form 1 or transferred those on a Form 4, that means you can’t just simply replace the oil filter when it is used up.
Additionally, silencer repairs are limited to some degree. A licensed manufacturer who has paid their SOT cannot repair the outer tube, cannot lengthen it and cannot change the caliber of the silencer. I’ve included a list of frequently asked questions from ATF in the description. As you can see, under the law, silencers are not only limited to the end product, but cover a large number of things.
Hopefully that gives you a better understanding of what a silencer is. If you guys liked this episode, you know what to do, hit that like button and share it around with your friends. Have a question you want answered on this show, head over to The Legal Brief section on theguncollective.com. Be sure to check out my website adamkraut.com for more information on my quest to serve YOU on the NRA Board of Directors. Don’t forget to like The Gun Collective on Facebook, Instagram, YouTube, Full 30, Snap Chat and wherever else you can catch us on social media.
And as always thanks for watching!
Links for this episode:
- 1909 Silent Firearm Patent – https://www.google.com/patents/US916885
- 1921 Silencer Patent – https://www.google.com/patents/US1482805
- 18 U.S.C. § 921(a)(24) “Silencer” – https://www.law.cornell.edu/uscode/text/18/921
- 26 U.S.C. § 5845(a) “Firearm” – https://www.law.cornell.edu/uscode/text/26/5845
- 27 C.F.R. § 478.11 “Silencer” – https://www.law.cornell.edu/cfr/text/27/478.11
- 27 C.F.R. § 479.11 “Silencer” – https://www.law.cornell.edu/cfr/text/27/479.11
- Bardwell Letter – http://www.titleii.com/bardwell/atf_letter66.txt
- Firearms Technology Branch Letter – https://princelaw.files.wordpress.com/2017/03/ftb-letter.jpg
- Chore Boy Letter – https://princelaw.files.wordpress.com/2017/03/chore-boy.pdf
- Silencer FAQ – https://princelaw.files.wordpress.com/2017/03/silencer-faq.pdf
- ATF NFA Handbook Chapter 2 – What are “Firearms” under the NFA? – https://www.atf.gov/firearms/docs/atf-national-firearms-act-handbook-chapter-2/download
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