Written by So You Want To Buy a Suppressor: Silencer and NFA Laws
William Lawson
Silencers, or suppressors if you prefer, are becoming more popular every day. The benefits to shooters and hunters are paramount, whether it’s protecting your hearing, and the hearing of those around you, not having to wear ear protection while hunting, or just general noise pollution reduction. A silencer also reduces felt recoil by redirecting the gases released when a gun is fired.
One would think that such beneficial devices would be on every gun store shelf, as they are, ironically, in Europe. But, thanks to reactionary and poorly conceived legislation, Americans have to jump through a series of bureaucratic hoops and pay a special tax to legally obtain a silencer. This article is not intended to describe all the minutiae of silencer purchasing and ownership. It will, however, hit the basics so that prospective buyers know the history behind the process and what to expect.
The National Firearms Act of 1934
The National Firearms Act of 1934 (NFA) is the federal law governing silencers, among other things. Individual state laws may or may not impose further restrictions or requirements. We will focus primarily on the NFA, while briefly mentioning certain state laws.
The NFA came about in response to seemingly out of control gang wars during the Prohibition Era. The infamous St. Valentine’s Day Massacre, in which Chicago mob boss Al Capone whacked several rivals, made national news in 1929. That incident prompted Congress and US Attorney General Homer S. Cummings, to “do something.” Sound familiar?
The result was the NFA, a Constitutionally suspect law that Cummings took care to present as a tax bill, knowing that outright bans violated the Second Amendment. When asked how the proposed Act “escaped” the Second Amendment, Cummings replied:
Oh, we do not attempt to escape it. We are dealing with another power, namely, the power of taxation, and of regulation under the interstate commerce clause. You see, if we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But, when you say, “We will tax the machine gun” and when you say that “the absence of a license showing payment of the tax has been made indicates that a crime has been perpetrated,” you are easily within the law. (Emphasis added)
Remember that Capone guy? He was never busted for murder, racketeering, or anything like that. He went down for income tax evasion. With respect to guns, the government knew that criminals would never pay the tax on weapons they owned, so that was a bonus to framing the NFA as a tax, not a ban. The public could still own NFA controlled items. They just had to pay the tax first. And we all know how ruthlessly the government pursues an unpaid tax.
That criminals like Capone, Clyde Barrow, and others used automatic weapons was well-known, so those firearms were the NFA’s primary target, along with short-barreled rifles and shotguns, which were viewed as being easily concealable by bank robbers and such. But, thanks to Hollywood, silencers were seen as assassins’ tools, prompting their inclusion in the NFA.
That criminals rarely used silencers wasn’t considered. Nor was it understood that silencers, especially 1930s silencers, aren’t really “Hollywood quiet.” Imagine lawmakers restricting items they know nothing about. It’s inconceivable, isn’t it? So, anyway, thanks to the NFA, you have to file special paperwork with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), pay the $200 tax, and receive your tax stamp before you can take possession of a silencer you have purchased.
Legal Requirements for Silencer Ownership
Federal requirements for silencer ownership are similar to the requirements for firearms ownership. Let’s list those. Keep in mind that individual states may have additional requirements, while silencers are completely illegal in eight states and Washington DC. We’ll get to those shortly.
- You must be at least 21 years old to purchase a silencer from a licensed dealer.
- You must be at least 18 years old to purchase a silencer from an individual.
- You must be at least 18 years old to possess a silencer as part of a trust or corporation.
- You must be a resident of the United States.
- You must be legally eligible to purchase a firearm.
- You must pass the federal background check.
- You must pay the $200 for your tax stamp, which proves you paid it. Each silencer or other NFA item must have its own tax stamp.
As noted, eight states and the District of Columbia currently prohibit civilian silencer ownership or possession. Those states are Hawaii, California, Illinois, New York, Massachusetts, Rhode Island, New Jersey, and Delaware. No real surprises there. Of the states where silencers are legal, only Connecticut prohibits hunting with a silencer.
The Process, In Brief
Suppressor companies and retailers do a good job of sharing information with potential customers. SilencerCo breaks down the process into the following steps while also providing examples. You will need to be fingerprinted as part of this process. You will submit the fingerprint cards with your paperwork. Electronic fingerprint cards can be submitted with e- forms.
- Carefully complete two copies of BATFE Form 4 (5320.4). Use blue or black ink. ATF also has e-forms available.
- Obtain two passport photos and affix one photo to each Form 4. Do not staple them. The photos will be uploaded for e-forms.
- Make one photocopy of your completed Form 4 with passport photo affixed. If using e- forms, download a copy for your records.
- Use SilencerCo’s example to carefully complete two copies of FBI Form FD-258. Use blue or black ink. You get the point about e-forms by now.
- Identify your Chief Local Law Enforcement Officer (CLEO). You must submit your paperwork to this individual, declaring your intent to purchase a silencer. That person will also have the opportunity to present disqualifying material to the ATF.
- Write a check for $200 to the Bureau of Alcohol, Tobacco, Firearms, and Explosives. You may also pay by cash, credit or debit card, or money order, but SilencerCo recommends a check because, when it clears, you will know your forms are being reviewed. SilencerCo also recommends writing your silencer’s serial number on the check’s memo line.
Keep in mind that you will not possess the silencer during this process. You will purchase it from the retailer or manufacturer, who will retain it until you receive your tax stamp. This process can take 8 to 10 months. The ATF introduced e-forms in 2022, but they have not been as fast as originally promised. You may receive your stamp in 90 days. Or you may not.
NFA Trusts
NFA Trusts are legal arrangements by which family members or other designated “responsible persons” can use your silencer without your being present. A trust also allows you to transfer your silencer to one of those responsible persons without their having to go through the entire process again. SilencerCo and other companies provide example forms for your convenience. They are also available from the ATF. To create a trust, insert the following steps in between the previously enumerated steps 3 and 5:
- Carefully complete BATFE Form 5320.23 (trust application). Use blue or black ink for paper forms. Each designated responsible person must also sign.
- Obtain one passport photo for each responsible person and affix them to the form. Do not staple. Upload for e-forms.
- Make a photocopy of the completed Form 5320.23, with photo, for each responsible person. Download for e-forms.
- Carefully complete two FBI Form FD-258s for each responsible person. Use blue or black ink for paper forms.
Note that each responsible person included in your trust will have to submit fingerprints. Also, if any of your responsible persons lives outside your jurisdiction, they must notify their Chief Law Enforcement Officer in addition to yours.
Those are the Basics
We have laid out the basic requirements and processes for owning and purchasing a silencer. It’s important to study the examples we’ve linked above so that you know what’s happening. If even one little thing isn’t done correctly, you can be delayed for a long time. Ask us how we know.
It’s also important to know your state laws regarding silencers. It’s easy to say that silencers are legal in 42 states. But we don’t necessarily know the ins and outs of each state. Make sure you understand your situation.
The process can be very confusing at times. Fortunately, companies like SilencerCo have easy-to-understand resources to help with that. Take advantage of them, do it carefully, and you’ll soon have your tax stamp and your new silencer.
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