Before manufacturing one’s own silencer or other NFA item, one must file an ATF Form 1 for registration and approval and receive said approval. Through a leap of logic, ATF has begun disapproving Form 1s en masse and it has angered, scared, and confused the homemade silencer market.
Suspicions arose last month, as more and more applicants began to share stories of their eFiled Form 1s taking an oddly long time for approval. Over the last couple years it has been an approximately three-to-five-week process from submission to approval, yet all of a sudden Form 1s from back in December were passing the eight-week point and people started chatting.
At some point beginning a few weeks ago it became clear that these long-pending applications were now the norm, not the exception. Was something going on at ATF? Holiday hangovers? New Year’s resolution to suck even harder? Busy murdering dogs?
Well, on Monday this week we found out. Waves of applicants began receiving Form 1 denials (“disapprovals”) and all for the same stated reason, which is shown in the “Reasons For Disapproval” screenshot above. The text is as follows:
A SILENCER IS DEFINED UNDER FEDERAL LAW TO INCLUDE, IN RELEVANT PART, 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. SEE GUN CONTROL ACT (GCA) AT 18 U.S.C.921(A)(24) AND NATIONAL FIREARMS ACT (NFA) AT 26 U.S.C. 5845. PARTS THAT FALL UNDER THE DEFINITION OF SILENCER MUST COMPLY WITH THE REGISTRATION, TAX, AND TRANSFER PROVISIONS OF THE NFA. UPON REVIEW OF YOUR EFORM 1 APPLICATION, THE PART FROM WHICH YOU INTEND TO MAKE A SILENCER ALREADY MEETS THE NFAS DEFINITION OF SILENCER. THE PART WAS NOT REGISTERED NOR TRANSFERRED IN COMPLIANCE WITH THE NFA, THEREFORE, YOUR EFORM 1 APPLICATION TO MAKE A SILENCER IS DISAPPROVED. NFA DIVISION NOTES THAT IT IS UNLAWFUL FOR YOU TO POSSESS A SILENCER MADE OR TRANSFERRED IN VIOLATION OF THE NFA. 26 U.S.C. 5861(B)(C).
So that’s scary. Effectively the ATF is saying that the applicant already possesses the components necessary to make the silencer and, because those components are intended to become silencer components, they ARE silencer components. And now the applicant is being accused of possessing a silencer(s) in violation of the NFA.
Mind you, NFA violation is a 10-year Federal felony offense. No joking matter. And as it appears that a clear majority of Form 1 silencer applications filed since approximately mid-December have been denied and were issued this same reason for disapproval, we’re talking about a heck of a lot of people. People who were, to be crystal clear, trying their hardest to follow the law in good faith and were seeking to register their parts and pay a $200 tax.
So…if I bought a solvent trap and later filed a Form 1 to convert it into a silencer, have I violated the NFA? That’s the assertion in ATF’s disapproval notice, but there are multiple issues with this claim . . .
First and perhaps most aggravating is that ATF has no clue if the applicant already possesses any of the components he or she intends to manufacture into a silencer. There’s nothing on the Form 1 about this and it’s a perfectly simple and extremely common practice to fill out, file, and wait for F1 approval before purchasing or making anything. ATF is blanket denying peoples’ applications with very specific reasoning that only applies to a subset of those being denied.
Second, but no less important, is ATF’s use of the word “only.” ATF says right in their reason for disapproval that [and I’ve added the bold emphasis in the quote to follow] “…any part intended only for use in [a firearm silencer] assembly…” is considered a silencer. Thankfully, “only” has a very clean and well-defined, specific meaning.
In a law that’s entirely about intent — and I mean 100% completely and totally, exclusively about the possessor’s intent — when a word like “only” is used it makes for a restrictive and extremely specific legal case.
People buying solvent traps are buying solvent traps. If they intend to use them as solvent traps, salt and pepper shakers, cleaning equipment storage as seen in the JK Armament photo above, days-of-the-week pill containers, survival gear storage (matches, fish hooks, line, etc.), water bongs for tobacco, or literally anything else (as my pappy always said, “anything’s a di*do if you’re brave enough”) right up until the point of Form 1 approval then it would appear they’re entirely in the clear.
So, no, people who own solvent traps (or oil filters or conduit or potatoes) are absolutely not in possession of illegal silencer parts. Apparently, because of the use of the word “only,” even if the person does intend to one day manufacture the parts into a silencer, as long as that’s not the only intent for the parts then they’re not in violation. In the meantime make sure you intend to use it as a pen holder or, as actually intended by the manufacturer of many of these things, as a solvent trap.
It’s fair to say that ATF’s contention here is that the very filing of a Form 1 is a clear indication that the owner intends to use the parts for a silencer and, therefore, the parts are already legally silencers. According to some folks in the know, ATF is ignoring their own “only” language and is overstepping.
Obviously if you have concerns about the process and want to be as legally safe as humanly possible, the suggestion is to receive Form 1 approval before acquiring or making anything at all that will become a part of your future silencer. However, ATF is so unhinged that they’ve begun making the entirely unfounded assumption that applicants already possess the parts, and they’re denying people based on this.
Registration, tax, and approval of a safety device is absurd in the first place. The U.S. is the only country in the world where silencers are regulated like this (or regulated at all, in most cases). Heck, much of Europe and some countries like New Zealand, I believe, mandate silencer use rather than regulate and suppress it. Mandatory in many cases for hunting and for shooting range use, both for safety and for noise pollution reasons.
So not only are we stuck with ridiculous, onerous, Second Amendment-violating laws, we now can’t even follow the law because of ATF’s malfeasance. This is a bridge too far. This is an incredible infringement.
The best way to push back on this is through your senators and congresspeople. Please email and/or call them today to let them know that you expect action fighting against ATF/DOJ’s gross overreach and violation of our rights.