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View Full Version : Odd legal question on # of guns you can build from scratch


BMartin1776
05-24-2012, 10:38 AM
I was told there is no limit to the number of guns you can build from scratch so long as you NEVER give or sell them to anyone.

This came up at a gun show when I was talking with cpl ppl about buying 80% finished lower receiver (purpose was to cut cost) where I or whomever would have to finish the milling on my own. It was my understanding researching this years ago that you could only build one gun in this manner by fed law. A guy said no you can build as many as you want. He went on to say if you had the money or access to machinery (CNC etc) you could make as many as you want, again as long as you never give them away or sell them.

Anyone want to chime in on this

alfred1222
05-24-2012, 10:46 AM
I'm pretty sure it's as many as you want as long as you don't sell them. If you make them for sale,than you Re a manufacturer and there's a whole slew of laws for that

bwiese
05-24-2012, 3:22 PM
CA has something about 6 or more per year throwing you into mfgr territory

RickD427
05-24-2012, 3:24 PM
IANAL - Please keep that in mind.

Please check out the provisions of California's "Zip Gun" statute (17360 PC):

______________________________

"17360. As used in this part, "zip gun" means any weapon or device
that meets all of the following criteria:
(a) It was not imported as a firearm by an importer licensed
pursuant to Chapter 44 (commencing with Section 921) of Title 18 of
the United States Code and the regulations issued pursuant thereto.
(b) It was not originally designed to be a firearm by a
manufacturer licensed pursuant to Chapter 44 (commencing with Section
921) of Title 18 of the United States Code and the regulations
issued pursuant thereto.
(c) No tax was paid on the weapon or device nor was an exemption
from paying tax on that weapon or device granted under Section 4181
and Subchapters F (commencing with Section 4216) and G (commencing
with Section 4221) of Chapter 32 of Title 26 of the United States
Code, as amended, and the regulations issued pursuant thereto.
(d) It is made or altered to expel a projectile by the force of an
explosion or other form of combustion."
___________________________

This was bantered around in another thread about a month ago (Calguns.net > General Discussions > 2nd Amend. Related Legal & Political Discussion
Question, Is It Legal For An Individual To Build A Semi Auto Pistol?).

The bottom line seems to be that if you're manufacturing a commercially designed firearm per paragraph (b), there's no limit.

If you're manufacturing a non-commercially designed firearm, then you need one of the exemptions in paragraph (c) to be legal. One of those exempts manufacturers of fewer the 50 items in a calendar year (That also kinda makes the Zip Gun Statute a "Toothless Tiger").

CHS
05-24-2012, 4:50 PM
There is no hard and fast limit as to the number of firearms that you can manufacture for personal use.

However, you can't be seen as manufacturing for sale without an FFL. At a certain (high) number, the BATFE could make an argument that you have too many and should be a manufacturer.

But no, there's no rule as to a solid number.

Regarding the zip gun statutes, under 50 a year is exempt from tax no matter what, so they can't be considered zip guns.

Cali-V
05-24-2012, 5:43 PM
Not trying to push the envelope...

But in terms of determining manufacturing for sale, isn't there something about intent at creation? That is manufacturing with the intent to sale, as compared to manufacturing with the intent of, say gaining knowledge or experience.

And further; if sometime after you create your firearm, you decide to sale it, does it not simply have to be properly marked.

Also, why shouldn't I be able to legally loan, my home made firearm to someone who can legally use it?

nicki
05-24-2012, 6:24 PM
So to stay under the radar, I can build up to 6 guns per year for personal use.

Now marking them is optional, with numbers, like say Nicki 666.:43:

I guess if I should consider marking the date I built this so that way we can keep a track of how many guns I built this year.;)

I know what some of you are thinking, don't even go there.:p

Nicki

CHS
05-24-2012, 6:29 PM
Not trying to push the envelope...

But in terms of determining manufacturing for sale, isn't there something about intent at creation? That is manufacturing with the intent to sale, as compared to manufacturing with the intent of, say gaining knowledge or experience.


Correct, but this is the BATFE. Railroading people is their business and M.O.


And further; if sometime after you create your firearm, you decide to sale it, does it not simply have to be properly marked.


I'm actually in disagreement here with the BATFE. They maintain you have to mark it, but the marking requirements in the law only apply to licensed manufacturers.

Plus, what happens if you make a firearm without marking it and then you die. Can the firearm NEVER be transferred to anyone else? Does it have to be destroyed?

On top of that, it's NOT illegal to transfer, possess/own a firearm without a serial number or other markings. Before the requirements of '68, it was common for a gun not to have those markings and/or a serial number. Hell, WWII 1911's have the serial number on the SLIDE instead of the frame in many cases.

But, since the BATFE disagrees, I do not wish to be a test case :)


Also, why shouldn't I be able to legally loan, my home made firearm to someone who can legally use it?

You can. Why do you think otherwise?

Cali-V
05-24-2012, 7:02 PM
Also, why shouldn't I be able to legally loan, my home made firearm to someone who can legally use it?


You can. Why do you think otherwise?

My bad.. OP said "NEVER give or sell them"...

I equated the legal act of giving, resulting in a transfer of ownership; with the personal, and physical act of giving, resulting in the temporary use and enjoyment by another. I.E. a loan... Sorry

BMartin1776
05-26-2012, 5:31 PM
So let me get this right if I had access to a CNC etc had the program for whatever weapon I want to build I could start with a block of metal /aluminum/steel machine it to all the parts and its perfectly legal?!!! What about machine shops?

If I had a friend that had a machine shop could I use his machinery to build weapons strictly for my own personal use?

OrenG
05-26-2012, 5:33 PM
So let me get this right if I had access to a CNC etc had the program for whatever weapon I want to build I could start with a block of metal /aluminum/steel machine it to all the parts and its perfectly legal?‼ What about machine shops?

If I had a friend that had a machine shop could I use his machinery to build weapons strictly for my own personal use?

IIRC you have to be there and you can only be assisted by the person with the machinery otherwise he/she is manufacturing the firearm for you without the proper license. But yes, people have build parties and such all the time for AKs, ARs, etc that accomplish the same sort of thing.

Peter.Steele
05-26-2012, 6:27 PM
IANAL - Please keep that in mind.

Please check out the provisions of California's "Zip Gun" statute (17360 PC):

_____________________________
The bottom line seems to be that if you're manufacturing a commercially designed firearm per paragraph (b), there's no limit.


No, there is still a limit. That limit is 50, at a Federal level. Over that level, you're no longer considered an individual, you're a real-deal manufacturer, and you're evading taxes unless you get properly licensed up.



If you're manufacturing a non-commercially designed firearm, then you need one of the exemptions in paragraph (c) to be legal. One of those exempts manufacturers of fewer the 50 items in a calendar year (That also kinda makes the Zip Gun Statute a "Toothless Tiger").


The para (c) exemption is for someone who is exempt from paying Federal taxes on the particular firearm ... which is where that 50 per year thing comes into play.

Gunsmith Dan
05-26-2012, 6:52 PM
I will find the California law but if I remember correctly there is a limit in California, personal or business, where you are concidered a manufacturer.

I believe it is 100 in a calander year but will find the law and post it.

bwiese
05-26-2012, 7:16 PM
I recall a DOJ letter from Alison Merrilees back in 2006, in which she stated an individual could not 'manufacture' more than 5 firearms a year without a CA mfg license.

Jason_2111
05-26-2012, 9:04 PM
At the moment, I'm gearing up to being running AR 80% build parties at a machine shop.
I've heard a bunch of different opinions on this subject... and nothing I'd consider concrete.
Part of getting all of the "I"'s dotted and "T"'s crossed is to run everything past an attorney that specializes in firearms law. That will probably happen at the end of next week. I'll be specifically asking about this as one of the questions, and I'll post up what he says.

I do know that the number of firearms you can manufacture for sale WITHOUT having the appropriate FFL is exactly 0.

morrcarr67
05-27-2012, 6:16 AM
I recall a DOJ letter from Alison Merrilees back in 2006, in which she stated an individual could not 'manufacture' more than 5 firearms a year without a CA mfg license.

There are a bunch of different letters in this PDF file.

But, the letter you are talking about is on the first page.

The statement you are talking about is the last sentence in the 2nd to last paragraph.

http://gunwiki.net/pub/Gunwiki/HistoryOLL/letters060220.PDF

mrdd
05-27-2012, 12:26 PM
And where in the law does it say that? I think she made it up. The state relies on federal law to a large extent. The PC only says:

CHAPTER 1. License Requirement for Manufacture of Firearms [29010. - 29010.] ( Chapter 1 added by Stats. 2010, Ch. 711, Sec. 6. )

29010. (a) Commencing July 1, 1999, no person, firm, or corporation licensed to manufacture firearms pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code may manufacture firearms within this state unless that person, firm, or corporation is licensed pursuant to Chapter 2 (commencing with Section 29030).
(b) Subdivision (a) does not apply to a person licensed to manufacture firearms pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code who manufactures fewer than 100 firearms in a calendar year within this state.
(c) If a person, firm, or corporation required to be licensed pursuant to Chapter 2 (commencing with Section 29030) ceases operations, then the records required pursuant to Section 29130 and subdivision (b) of Section 29115 shall be forwarded to the federal Bureau of Alcohol, Tobacco, Firearms and Explosives within three days of the closure of business.
(d) A violation of this section is a misdemeanor.

This says that you are only required to have a state license IF you have a federal license AND you manufacture 100 or more per calendar year.

morrcarr67
05-27-2012, 12:35 PM
And where in the law does it say that? I think she made it up. The state relies on federal law to a large extent. The PC only says:



This says that you are only required to have a state license IF you have a federal license AND you manufacture 100 or more per calendar year.

Is that state code you have listed?

Rember state code can be stricter than federal code.

Just look at CA gun laws.

mrdd
05-27-2012, 12:36 PM
That's Federal code. What does CA code say?

Rember state code can be stricter than federal code.

Just look at CA gun laws.

No, that is the California Penal Code. My point is that they don't even require a license unless you meet the stated requirements.

morrcarr67
05-27-2012, 12:40 PM
No, that is the California Penal Code. My point is that they don't even require a license unless you meet the stated requirements.

Cool. Looks like some more undergound regulations they're trying to push.

mrdd
05-27-2012, 12:47 PM
Cool. Looks like some more undergound regulations they're trying to push.

Remember, this was the gang under Lockyer. Jerry Brown did a lot of housecleaning when he became AG.

morrcarr67
05-27-2012, 12:54 PM
Remember, this was the gang under Lockyer. Jerry Brown did a lot of housecleaning when he became AG.

Hopefully you are correct.

RickD427
05-27-2012, 12:54 PM
Cool. Looks like some more undergound regulations they're trying to push.

Gents,

I'm not so sure that Ms. Merrilees is in error here. Her correspondence addressing the 5 firearms per year is several years old.

IANAL, but did do some research prior to my earlier postings in this, and in the preceding thread, on the subject. California's "Zip Gun" statute is the only governing law that I was able to locate. It "borrows" from the federal law (26 USC 4181) to define persons exempt from licensure requirements based on the number of items manufactured per year. The statute currently sets that number at fifty (50).

One poster in the previous thread recalled that section having been amended, and the number having been much lower in the previous law. I also have to think that the authors of the "Zip Gun" statute would never have passed it if 50 weapons/year could be lawfully manufactured.

I don't have the resources to research archived versions of the US Code (Librarian - Can you help?).

My "street sense" is that the federal law read five (5) items in a prior version.

mrdd
05-27-2012, 1:30 PM
The prior version of the federal statute did not have any limit. The fewer than 50 exemption was added by Public Law 109-59 (2005).

I still think the referenced letter from the CA DOJ made it up.

PART 5--SPORT EXCISE TAXES

SEC. 11131. CUSTOM GUNSMITHS.

(a) Small Manufacturers Exempt From Firearms Excise Tax.--Section
4182 (relating to exemptions) is amended by redesignating subsection (c)
as subsection (d) and by inserting after subsection (b) the following
new subsection:
``(c) Small Manufacturers, Etc.--
``(1) In general.--The tax imposed by section 4181 shall not
apply to any pistol, revolver, or firearm described in such
section if manufactured, produced, or imported by a person who
manufactures, produces, and imports less than an aggregate of 50
of such articles during the calendar year.
``(2) Controlled groups.--All persons treated as a single
employer for purposes of subsection (a) or (b) of section 52
shall be treated as one person for purposes of paragraph (1).''.

(b) <<NOTE: 26 USC 4182 note.>> Effective Date.--
(1) In general.--The amendments made by this section shall
apply to articles sold by the manufacturer, producer, or
importer after September 30, 2005.
(2) No inference.--Nothing in the amendments made by this
section shall be construed to create any inference with respect
to the proper tax treatment of any sales before the effective
date of such amendments.

RickD427
05-27-2012, 3:08 PM
The prior version of the federal statute did not have any limit. The fewer than 50 exemption was added by Public Law 109-59 (2005).

I still think the referenced letter from the CA DOJ made it up.

mrdd,

Thanks for the research and the clarification. Looks like the 5 per year in Ms. Merrilees' letter is still unresolved.................

Jason_2111
06-01-2012, 12:38 PM
Update: I brought this up with my attorney yesterday. He located the law mentioning "5 per year", but that was specifically addressing Pistols and not Rifles. He will research this and get back to me.
He did urge caution though, when it comes do doing 80% completions for pistols. The problem there is the Unsafe Handgun Act (California silly Roster). The law stating 5 pistols per year max actually pre-dates the roster law... so the roster is the one to look out for.

Doing a build into an SSE pistol is one thing... then converting it to normal is entirely another if you're not an 07 FFL. (I was advised against doing so)

Just sharing what I was told. More updates as info comes in. :)

Jason_2111
06-01-2012, 12:39 PM
I should be a little more clear... the problem with doing pistol builds isn't the federal law, it's the state law.

CHS
06-01-2012, 1:38 PM
I should be a little more clear... the problem with doing pistol builds isn't the federal law, it's the state law.

No one has ever claimed otherwise.

It's a misdemeanor in CA to manufacture an "unsafe" handgun. You can, however, manufacture an exempt handgun, and then modify it at a later point into the "unsafe" form.

mrdd
06-01-2012, 6:24 PM
Update: I brought this up with my attorney yesterday. He located the law mentioning "5 per year", but that was specifically addressing Pistols and not Rifles. He will research this and get back to me.

I'm waiting for the cite on this. The penal code does define 5 or less per calendar year as "infrequent", applying to certain specific acts involving handguns without a license:

1) It applies to the number of loans.

2) It applies to the number of transfer transactions.

It does not apply to manufacturing!

All the PC says about manufacturing is that you must have a state license if the following applies:

You have a federal manufacturing license.

AND

You manufacture 100 or more items per calendar year.

That's all.