Automatic Weapons

Many people believe that it is illegal for private citizens to own automatic weapons, also called machine guns.

Many others believe that it is illegal for private citizens to own machine guns in the state of MN.

This is actually false, although Minnesota law places significant limitations on what automatic firearms can be owned and who may own them.

Federal Law

Federal law defines a machine gun in 26 USC § 5845(b), 27 CFR § 478.11 & 27 CFR § 479.11:

The term “machine gun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

In addition to this definition, there are literally hundreds of determinations by the Bureau of Alcohol, Tobacco, Firearms & Explosives (BATFE) Technology Branch that address very specific technical questions as to which part or combination of parts constitute a machine gun for a particular firearm. In general, any parts that can convert a semi-automatic firearm into a machine gun, or any alterations to a firearm in order to accept any parts that would convert a firearm into a machine gun constitute “constructive possession” of a machine gun, even if the parts have not yet been assembled into a functional machine gun.

Congress has regulated the manufacture, transfer, and possession of machine guns since 1934 with the passage of the National Firearms Act (NFA), 26 USC § 53. The NFA also includes regulation of Short Barreled Rifles (SBR), Short Barreled Shotguns (SBS), Silencers, Destructive Devices (DD), and Any Other Weapons (AOW) which is a catch-all category for unusual firearms such a cane guns, pen guns, pistols with vertical fore grips, and short barrel smooth bore shotgun-like firearms without a stock, etc.

With limited exceptions, the NFA imposes a $200 tax on the transfer of an NFA firearm, and created a federal registry of all NFA firearms, where the description, serial number, and owner of an NFA firearm are maintained by the BATFE. All NFA firearms are required to be registered with the BATFE except for those firearms owned by the Federal Government.

The NFA was revised by the Gun Control Act (GCA) of 1968, and established regulation of all firearms under US Federal law. The GCA is Title I of Federal firearms laws and regulates non-NFA firearms. The NFA became Title II of Federal Firearms laws under the GCA. The NFA (Title II) was also amended by the passage of the Firearms Owners Protection Act (FOPA) of 1986. Among other things,

FOPA made it illegal for any person to manufacture or possess any machine gun manufactured after May 19th, 1986. The only exception to this prohibition are State and local political subdivisions and their agents (laws enforcement), and Federal Firearm Licensees (FFLs) who are also Special Occupational Taxpayers (SOTs). There are 3 categories of SOTs – Importers of NFA firearms (class 1), manufacturers of NFA firearms (class 2), and dealers of NFA firearms (class 3).

Machine guns are often referred to as NFA firearms under the National Firearms Act of 1934. They are also known as Title II firearms under the Gun Control Act of 1968, and also occasionally referred to as Class 3 firearms after the classification level of FFL SOTs that are licensed to deal in NFA/Title II firearms. Often times these terms are used interchangeably, however referring to machine guns as NFA firearms is the most correct classification as it is the original classification under which they were regulated.

Machine guns manufactured prior to May 1986 are considered transferable machine guns because they can legally be transferred to an individual person. Machine guns manufactured after May 1986 are considered post-86 dealer samples and can only be transferred to or possessed by local, state or federal government agency, or FFL SOTs licensed to import, manufacture or deal in post-86 machine guns. Because there is a fixed supply of transferable machine guns, and an increasing demand by collectors, the value of post-86 machine guns have skyrocketed significantly past their original value.

The Federal penalties for possessing an NFA firearm that is not currently registered to you is up to a $10,000 fine and/or 10 years in prison under 26 USC § 5871. Note that BATFE considers anyone who has physical access to an NFA firearm when its registered owner isn’t immediately present to constitute possession, placing that person in jeopardy of conviction under 26 USC § 5871. Because of this, great care must be taken in the storage of NFA firearms to limit their access, as well as insuring that whenever the firearm is not stored it remains in the immediate presence of and under the control of its registered owner.

Failure to strictly control access to the firearm can result in an inadvertent and illegal transfer of the NFA firearm. Because of this, many owners of machine guns and other NFA firearms have created NFA Trusts that significantly reduce the legal liability when multiple individuals may be in possession of the NFA firearm at any given time.

Minnesota Law

In addition to Federal law, MN also restricts the possession on machine guns in 609.67. Specifically, possession of machine guns and short barrel shotguns by individual persons are prohibited, except under 609.67 Subd. 3(3): persons possessing machine guns or short-barreled shotguns which, although designed as weapons, have been determined by the superintendent of the Bureau of Criminal Apprehension or the superintendent's delegate by reason of the date of manufacture, value, design or other characteristics to be primarily collector's items, relics, museum pieces or objects of curiosity, ornaments or keepsakes, and are not likely to be used as weapons;

This statute was further clarified by Rule 7500.5100 Subp. 2: Approved machine gun or short-barrelled shotgun. "Approved machine gun or short-barrelled shotgun" means a machine gun or short-barrelled shotgun that, although designed as a weapon, has been determined by the superintendent as not likely to be used as a weapon and that has been determined by the superintendent to appear on the National Firearms Act Curios and Relics List, as provided by United States Code, title 18, chapter 44, and as issued by the Department of the Treasury, Bureau of Alcohol, Tobacco, Firearms and Explosives (Washington, D.C.).

The Term Curio Relic is further defined in 27 CFR 478.11: Curios or relics. Firearms which are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons. To be recognized as curios or relics, firearms must fall within one of the following categories:

(a) Firearms which were manufactured at least 50 years prior to the current date, but not including replicas thereof;

(b) Firearms which are certified by the curator of a municipal, State, or Federal museum which exhibits firearms to be curios or relics of museum interest; and

(c) Any other firearms which derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event. Proof of qualification of a particular firearm under this category may be established by evidence of present value and evidence that like firearms are not available except as collector's items, or that the value of like firearms available in ordinary commercial channels is substantially less.

The effect of 609.67 Subd. 3(3) & 7500.5100 is that any machine gun or short barreled shotgun that has been determined to be a Curio Relic (C&R) by the BATFE, or can be demonstrated to be 50 years old or older is legal to own in MN. While this is a limited subset of the types of machine guns that can be owned in other states (any machine gun manufactured prior to May 1986), it does allow for a significant number and wide variety of types of machine guns to be owned in MN.

A note on Curios & Relics

Curio & Relics must be transferred in their original state to remain considered a curio & relic.

For example, an AR-15 model 601 manufactured in 1961 must be completely original in order to be considered a curio relic. If the upper receiver has been replaced with one not original at the time it is transferred, while it is still considered a transferable machine gun, it would no longer be a curio relic, and therefore not MN legal.

Additionally, many transferable machine guns that were imported into the US were first deactivated and rendered unusable in order to be imported, and then rebuilt into functional weapons once in the US. For example, an MG-42 machine gun that was originally manufactured in 1942, and later deactivated and imported into the US, and then rebuilt back into a functional MG-42 by the importer in 1978 is not considered a curio relic. The legal date of manufacture of the firearm is considered the remanufactured date, not the original manufacture date in this scenario. If a person is interested in purchasing a MN legal curio relic machine gun, they must ensure that the firearm is in its original configuration at the time it is transferred to them, and that it has never been deactivated and rebuilt, or that at least 50 years has passed since the time it was rebuilt.

Once a person lawfully acquires a curio relic machine gun in MN, it does not need to remain in its original configuration at all times. For example, the owner may wish to change out the barrel or the sights, to make the firearm more pleasant to shoot, or to limit the wear and potential damage to the original parts to preserve its value. However, the owner must maintain possession of all of the original parts so that the firearm is readily restorable to its original configuration to remain a curio relic. Also, no permanent modifications can be made to the firearm that would affect its curio relic status. Things like cutting, welding, drilling, or refinishing any part of the firearm into a non-original configuration is not considered a readily restorable change, and would render the machine gun no longer a curio relic, and no longer MN legal. Changing the upper receiver, stock and internals of an AR-15 model 601 when shooting it to minimize wear and damage is perfectly acceptable, provided the original parts continue to be maintained by the owner.

How to purchase a machine gun in Minnesota

When a person decides that they want to legally purchase a transferable curio relic machine gun for ownership in MN, the first task is to find a dealer that has the machine gun for sale that you wish to purchase. Since there is a limited supply of transferable curio relic machine guns in the US, simply finding the model machine gun you want, at a price that you can afford, in an acceptable condition may take a long time. There are a number of places online where transferable machine guns are advertised for sale. Both Gunbroker and GunsAmerica have Class III categories where dealers list NFA weapons for sale, and is a good place to start. Autoweapons is another place that tends to have a large inventory of transferable machine guns, and many are identified as curio relic. You will also need to find a local FFL SOT2/3 that can do an FFL NFA transfer to get the machine gun into the state of MN prior to transferring it to you.

The process for legally purchasing a machine gun is to first pay for the weapon from the dealer that is selling it. If the dealer is located in a different state, then a dealer-to-dealer transfer will need to be performed to get the firearm into MN. This is not unlike a normal FFL transfer, except that the transfer must be approved by the BATFE and registry updated prior to the transfer taking place. This is accomplished on BATFE Form 3. This process typically takes several weeks to complete. Once the transfer has been approved and the firearm is transferred to you in-state dealer, they will assist you with completing the BATFE Form 4 required to transfer the firearm to you.  There are 3 types of entities that constitute a “person” for the purposes of transferring an NFA item – an individual, a corporation, or a trust.

Individuals are required to submit FBI fingerprint cards (available at your local law enforcement office), a passport sized photograph, and have their form 4 application signed by their Chief Law Enforcement officer (CLEO) stating that he has no reason to believe that the transfer and possession of the machine gun is unlawful. Unfortunately, many CLEOs will not sign off on BATFE form 4 applications, as there is no obligation to do so. For many, this is seen as a significant obstacle to ownership of NFA weapons, but in reality it isn’t.

Corporations are also able to own NFA firearms, and are not required to provide fingerprint cards, photographs or have the CLEO section of the form 4 signed. If a person currently owns a corporation, having the corporation own the NFA firearms is a viable alternative. Another benefit of going the “corporation” route is that any officer of the corporation is legally allowed to be in possession of the NFA firearms it owns. The downside is that corporations can be sold, they can be sued, they can go bankrupt, etc. Also, if a person doesn’t already own a corporation, setting one up specifically to own NFA firearms is quite a bit of work, and there is annual paperwork and taxes involved with going the corporation route,

Trusts are also able to own NFA firearms, and are not required to provide fingerprint cards, photographs or have the CLEO section of the form 4 signed. Additionally, any person listed as a trustee of the trust is allowed to be in possession for the NFA firearms it contains. However, unlike a corporation, trusts are typically changed very rarely after they are setup, and there are no recurring annual paperwork, fees or taxes involved in maintaining a trust. Trusts, much like a will, are also established for how you wish your property to be disbursed at the time of your death. There are a number of advantages to going the “trust route”, and in general it is the preferred way to acquire NFA firearms. There are special consideration to owning NFA firearms, so having an “NFA Trust” created specifically to deal with the complex legalities of owning NFA weapons is advised.

Once you have your form 4s completed (in duplicate), you send them off to BATFE along with the $200 transfer tax (and your corporation or trust paperwork), the waiting begins. A form 4 transfer can take anywhere from 3-12 months to complete, during which time you are not able to take possession of your machine gun. Only after your form 4 comes back approved with the transfer stamp affixed to it are you allowed to take possession of the machine gun.

As soon as you receive your approved form 4 and take possession of your machine gun, you should make several copies of it. Your approved and stamped form 4 is the only document proving that you legally own the machine gun. Keep the original with all of your other important documents, but keep copies of it in your gun safe, in your gun case, in your car, etc. You never want to find yourself in a situation where are in possession of your machine gun, but don’t have a copy of your form 4 readily available should you be questioned by law enforcement.

The other thing that you should do immediately is to complete and submit a report of the possession of the machine gun to the MN Bureau of Criminal Apprehension (BCA) as required in 609.67 Subd. 4(a). You have 10 days from the date of transfer to submit this report. Within a week or two you will receive an approved copy of your report back, keep the original with your other original documents, and keep a copy with all of your other copies so you can demonstrate that you are in compliance with 609.67 Subd. 4(a) if questioned.

Most shooting ranges, especially indoor ranges are going to want to be told prior to shooting that you are going to be shooting a machine gun. They will likely want to see a copy of your paperwork to ensure you’re legally in possession of the firearm. If you are shooting it outdoors, there is the possibility that you might be approached by law enforcement. Be calm and polite, and provide your approved form 4 application and approved curio relic report.

Where to go for help

There are a number of places online that provide additional information of the process, current BATFE processing times, the going rate for certain popular machine guns, etc. Make a point to familiarize yourself with the laws, processes and procedures involved. Your dealer is going to be familiar with the process and legalities, and will help you through the process, but the more you research and understand, the better off you’ll feel.

Most people get very anxious purchasing their first machine gun. Many are simply intimidated by the process, and don’t want the legal liability of doing something wrong. The truth is that owning a machine gun really isn’t that big of a deal compared to other process intensive activities such as buying a house. You just need to research what’s involved, and work with a dealer that’s familiar with the process.

Links & Resources

Below are some helpful links that can assist in the process: