The Hearing Protection Act of 2017

Making the Dream a Reality

If you’ve ever legally bought or built a suppressor, you’ve shared the pain of more than a million Americans who’ve endured and complied with the federal government’s bureaucratic paper shuffle before enjoying the fruits of your labor.

You prepared and submitted special forms, a photograph, and a set of fingerprints. Before July 13, 2016, you either waited for the approval of your local chief law enforcement officer (CLEO) or spent time and money to prepare a special trust. You also paid a $200 tax. And then you waited. Six to 12 months went by while the ATF hand-processed this personal and revealing pile of paperwork.

And finally, if your forms were two-sided, your signatures original on duplicate copies, your supporting documents in order, and, of course, a background check revealed you’re not prohibited from possessing firearms, the special “tax stamp” was affixed. Your new suppressor was officially tied to you in the National Firearm Registration and Transfer Record (NFRTR), and permission was finally yours to enjoy the pleasure of shooting without earplugs.

Currently in America, the land of the free and the home of as many as 80 million gun owners, American taxpayers dole out millions of dollars annually to enforce an inefficient, expensive, and unnecessary process. These dollars are spent in the name of overseeing and taxing gun owners who, in part, wish to acquire the mufflers once sold at hardware stores for around $5. These same, heavily regulated “firearms” are required hunting tools in some European countries.

Photo courtesy of Oleg Volk

The American Suppressor Association (ASA), backed by gun owners, dealers, and manufacturers across the country, is lobbying for what its supporters view as a necessary update to the law.

When the Hearing Protection Act was first proposed in 2015, Congress.gov indicated it had only a 3 percent chance of becoming law. After almost a decade of the Obama Administration’s push for more gun control, it seemed very unlikely that Americans would pass any laws in favor of gun rights.

One year and a presidential election later, the dream is moving toward reality. For Second Amendment advocates, a light has begun to shine through the murk of America’s gun-control system. This light is, in part, produced by the ASA, which refers to itself as “the unified voice of the suppressor industry.”

Before delving into how the ASA is lobbying to fix what they see as a broken system, a brief history lesson is in order.

The National Firearms Act
In an attempt to control prohibition-inspired crime in the early 1930s, Congress formulated a plan to restrict certain firearms by reducing the average American’s ability to afford them. Congress enacted the National Firearms Act (NFA) to tax certain firearms, including short-barreled rifles and shotguns (SBRs and SBSs), fully automatic firearms, suppressors, and the ill-defined category of “any other weapons.” The NFA taxed these firearms into oblivion, making them unaffordable to the average American gun owner. The ATF’s website still portrays this bit of history:

Hopefully, some day soon these will be collectors items.

“[The NFA’s] underlying purpose was to curtail, if not prohibit, transactions in NFA firearms. Congress found these firearms to pose a significant crime problem because of their frequent use in crime, particularly the gangland crimes of that era such as the St. Valentine’s Day Massacre. The $200 making and transfer taxes on most NFA firearms were considered quite severe and adequate to carry out Congress’ purpose to discourage or eliminate transactions in these firearms.”

At 40 times the cost of a suppressor, the average citizen could no longer afford the $5 muffler after this tax was added to the purchase price. Interestingly, there was a complete lack of data or even mention in the legislative record that suppressors were ever used in crimes.

The Door Opened to More Gun Control Laws
In 1934, when the NFA became law, America had no computerized background check system. In fact, there were no federally required background checks for gun purchases at all. There were no federal laws preventing felons or the mentally ill from possessing firearms. Congress expected that the would-be gun buyer’s local law enforcement officers would know who the bad guys in town were, and these officers would simply refuse to sign the required paperwork to prevent known criminals from legally acquiring NFA regulated firearms.

Since then, Congress has passed several comprehensive gun-control laws, including the Gun Control Act of 1968 (GCA) and the Firearm Owners Protection Act of 1986 (FOPA). The GCA requires federal licensing for dealers, manufacturers, and importers, requires them to keep records and conduct background checks on would-be purchasers, and prohibits certain people (felons, the mentally ill, and illegal drug users, to name a few) from legally possessing firearms.

Despite its title, the FOPA further restricted gun owners by expanding the definitions of silencers and machine guns to include their mere parts. The FOPA also expanded the list of “prohibited persons” who cannot legally possess firearms, and it denies gun owners the ability to purchase machine guns manufactured after 1986, which caused their cost to skyrocket.

This line of federal gun-control laws created a system that restricts purchases and requires so-called instant computerized background checks — all in the name of ensuring that the “bad guy” doesn’t get the gun. As many gun owners have experienced, state governments can, and have, passed even more laws further restricting our ability to buy and possess firearms and ammunition.

If the aim of the NFA was to protect citizens by keeping firearms out of the hands of criminals, it has been substantially replaced by the later federal and state laws that restrict transfers and require efficient, computerized background checks. Gun owners argue the extra paperwork required by the NFA does nothing to deter crime, and only places a burden on Americans who follow the rules.

Some Americans created gun trusts to avoid some of the NFA-required paperwork. But in January of 2016, Attorney General Loretta Lynch signed Rule 41F into law. Rule 41F is a 250-page death warrant for one gun trust benefit, which was to avoid some of the NFA paperwork and process.

While many gun owners believe the solution to the paperwork and wait times is to completely abolish the NFA, that solution will not happen overnight. The first step, according to the ASA, is to address silencers and their current definition as firearms under the National Firearms Act.

In the following interview with Owen Miller, Director of Outreach for the American Suppressor Association, he further explains the HPA and the likelihood that it’ll be enacted so that suppressors will no longer be controlled by the archaic rules of the National Firearms Act.

RECOIL: How has the American Suppressor Association helped pass pro-suppressor legislation.

Owen Miller, Director of Outreach for the American Suppressor Association.

Owen Miller: For the past five-and-a-half years, we have been at the forefront of the fight to pass pro-suppressor reform across the country. Since we formed the ASA in 2011, three states have legalized private ownership of suppressors: Vermont, Minnesota, and Iowa. Eighteen states have legalized hunting with suppressors. That list is too long for this article, but suffice it to say we’ve been incredibly active on the legislative front.

In total, 42 states now allow private ownership of suppressors, and 40 states allow hunting with suppressors. Those figures mean that 80 percent of our states recognize a right to protect our hearing with a suppressor while hunting. There are still eight states that do not allow private ownership of suppressors. Those states are California, New York, New Jersey, Hawaii, Illinois, Massachusetts, Delaware, and Rhode Island. Connecticut and Vermont are the only two states where you can own, but not hunt, with a suppressor.

RECOIL: Since the NFA became law in 1934, Congress passed the GCA in 1968 with all kinds of prohibitions on firearms possession, as well as licensing requirements for dealers and manufacturers, and a background check system. Why do we need the NFA?

OM: Well, you bring up a good point. The laws have changed dramatically since the NFA was passed in 1934. Eighty-two years ago, there were no televisions, cell phones, and computers. One component of the NFA, the required CLEO signature, was a primitive background check for people applying to register NFA firearms. By asking the applicant’s CLEO if the applicant was the town bad guy, the NFA allowed the CLEO to refuse to sign the applicant’s paperwork. The computerized instant background check system that we have today provides a far better level of safety and security that we can utilize for suppressor transfers. The modern system does not require all the extra paperwork or a six- to 12-month process. And let’s not forget, criminals are not submitting the paperwork anyway.

RECOIL: Whose brainchild was the Hearing Protection Act?

OM: Since the start of the ASA, removing suppressors from the NFA has been a primary objective of the Association. We want to see suppressors treated like other firearms, like a long-gun. We want the process for buying a suppressor to be the same as the process for buying any other firearm. Law-abiding Americans should be able to go to a dealer, fill out Form 4473, undergo a NICS background check, and leave with the suppressor.

The HPA was the brainchild of our staff, the NRA, and Representative Matt Salmon of Arizona. We worked closely with his office and House Legislative Counsel to draft the language, ultimately going back and forth for months, ending up with multiple revisions. This process ensured that we had a solid bill to introduce to Congress. It wasn’t perfect, but it was a good starting point, which is why we have since drafted a package of technical amendments to address things like the suppressor parts classification issue.

We knew this would be a long road, likely a several-year process, focusing on the education of members of Congress once the bill was introduced. We need to help the members of Congress understand the same things you and I understand about suppressors: the benefits and the safety factor of suppressor use is a great thing for the American sportsman. Now, with what we’ve accomplished in the most recent election, we have a great chance of getting this bill passed.

RECOIL: How many sponsors does the HPA have?

OM: This year, following Rep. Salmon’s retirement, Rep. Jeff Duncan and Rep. John “Judge” Carter have taken over as the primary sponsors. There are currently 125 sponsors in the House, including two Democrats, so this is a bipartisan supported bill. That’s up from 82 cosponsors last year. On the Senate side, it’s being carried again by Senator Mike Crapo of Idaho. That bill has 11 cosponsors.

RECOIL: People keep asking if Trump can just “fix” this, but we know the “fix” means an act of Congress:

OM: Yes. The NFA was an exercise of Congress’s power to tax, and it will require an act of Congress to change it.

RECOIL: The burden to the gun owners is the paperwork and the wait for the paperwork to be processed, but the burden to all Americans is the inefficiency of the system, which costs taxpayers millions of dollars each year. Whether you’re a gun owner or not, you’re still paying for this law to be in effect, aren’t you?

OM: Absolutely. Since ATF 41F was signed, the ATF has had to bring in a number of contractors. They pay quite a bit for human beings to run this manual, paper-based process. Attempts to modernize the process through e-forms have failed, costing tax-payers millions of dollars for a system that was essentially broken from the start. So, we are back to individuals shuffling paper. The government has attempted to limp the e-forms system along, but it would be a major undertaking and cost many millions more to have a functioning, efficient system that would save taxpayers money.

We believe, and so does the ATF, that the real solution is to take suppressors out of the NFA. Suppressor applications make up approximately 80 percent of the transfers that the NFA branch processes. So, removing suppressors from the NFA and from their workload would ultimately save the taxpayers a lot of money.

RECOIL: How can people support the HPA and the ASA?

OM: They can go to HearingProtectionAct.com and send an email directly to their legislators to let them know they support this legislation. It takes about 30 seconds. They can also join the ASA on our website AmericanSuppressorAssociation.com.

RECOIL: If you are successful, how soon could we see a change?

OM: We are working around the clock to move the HPA as quickly as possible, but these things take time. We included a provision in the bill for a tax credit for anyone purchasing a suppressor after the legislation was introduced. There is no downside to buying a suppressor now and starting your paperwork. Those purchases of suppressors today will help fund the industry’s efforts to pass the HPA as quickly as possible.

About the Author
Alex Kincaid is a former elected district attorney and current firearms law attorney with over 19 years experience. She is an active proponent of the Second Amendment, a legal analyst, and author. Alex hosts an online show highlighting current firearms law-related news called The AK Show.
www.alexkincaid.com

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