More Legislation to Alter the National Firearms Act

Last week it was reported that New Jersey Senator Bob Menendez held a press conference in Trenton to unveil a new piece of legislation called the Help Empowered Americans Response Act (HEAR Act) (S. 1943), which was introduced in the Senate this past Monday. The companion House Bill was also introduced this week (H.R. 3454). As of the writing of this article, the bill text is still unavailable.

Slipping under the radar a few days earlier was H.R. 3404, which was introduced by Virginia Congresswoman Jennifer Wexton. The bill, entitled the “Empowering Law Enforcement for Safer Firearm Transfers Act of 2019,” would amend the National Firearms Act (“NFA”) essentially undoing the regulatory change ATF implemented July 13, 2016.

The regulatory change, known as ATF 41F, enacted a number of changes to the process in which NFA firearms were transferred. Of relevance to this bill is the elimination of the Chief Law Enforcement Officer (“CLEO”) signature that used to be required on the forms to transfer or manufacture an NFA firearm.

The signature was never a “permission slip”, as thought by some, but merely a statement that the CLEO had no information to believe the person would use the firearm in an unlawful manner and that there was no information to believe that possession of the firearm would violate state or local law.

H.R. 3404 looks to add the CLEO signature requirement back to the NFA transfer process, albeit slightly different than its predecessor. If adopted, the bill would amend the NFA to require the Secretary (really the Attorney General or their designee, which would be ATF) to notify the CLEO of the jurisdiction where the transferee primarily resides that an application (Form 1, 4 or 5) is pending. The CLEO would then have to certify that there is no objection to the transfer.

If the CLEO fails to certify there is no objection to the transfer, a 90-day period, starting on the date of the notification begins. During that 90 days, if the CLEO does not alert the Secretary that 1) the transferee poses a danger to themselves or others, or 2) there is a reasonable likelihood the transferee will use the firearm for unlawful purposes the transfer will be allowed to occur.

ATF's own assertion in its final rule (ATF 41F), renders the legislation meaningless.

In conjunction with the mandatory background check required of all applicants, including responsible persons of trusts and legal entities, the requirement of CLEO notice fulfills the primary objectives that have supported the certification requirement: It provides the CLEO awareness that a resident of the CLEO’s jurisdiction has applied to make or obtain an NFA weapon and affords the CLEO an opportunity to provide input to the ATF of any information that may not be available during a Federal background check indicating the applicant is prohibited from possessing firearms.

Put another way, the CLEO is already involved in the NFA transfer process to the extent there is anything to add.

About the Author

Adam Kraut is a firearms law attorney practicing in southeastern PA and across the country federally. He hosts The Legal Brief, a show dedicated to crushing the various myths and misinformation around various areas of the gun world. He was also the general manager of a gun store in the suburbs of Philadelphia.

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