ATF Threat To Curios And Relics

The Bureau of Alcohol, Tobacco, Firearms, and Explosives has released a new report entitled National Firearms Commerce and Trafficking Assessment: Firearms in Commerce. It was released May 5th and has received some attention in the media. That attention is concentrated primarily on privately made firearms and the increase in production of all firearms since the year 2000.

As they say, the devil is in the details and this 308-page report touches on a lot more than the increase in production and privately made firearms. While I may get into depth on other parts of the report and the BATFE’s recommendation in later posts, today I want to concentrate on what they have to say about curios and relics.

As things stand now, a C&R is defined by Title 27 Code of Federal Regulations §478.26. They can be a) firearms manufactured more than 50 years prior to today; b) firearms certified by the curator of a municipal, State, or Federal museum that exhibits firearms to be of museum interest; or c) any other firearm that gets a substantial part of its value from being “novel, rare, bizarre, or because of their association with some historical figure, period, or event.” Thus, a curio and relic could be any firearm ranging from a Ruger Model 77 made in April 1972 to Gen. George Patton’s personal handguns. In my own collection of curios and relics is a Winchester Model 50 semi-auto shotgun. It qualified under the 50 year rule and its only real claim to fame for me is that it was manufactured in 1957 which is the year of birth.

The report devotes parts of two pages to curios and relics as well as C&R FFLs. As I have held this FFL since 1997, this was of particular interest. First they note that the number of 03 FFLs has increased by 148% since 2000 with there being 59,457 currently. Those of us with this license now compose 40% of all FFLs. Much is that proportional increase is a result of the decrease in numbers of 01 FFLs due to increased regulations and the anti-gun policies of the Obama and Biden administrations. Second they note while they do have a list of all firearms classified as curios and relics since 1972, they do not have a data system that tracks information on these firearms, museums that certify museum interest, etc. They then note their data analysis questions the 50-year rule. Therein lies the rub.

Here are their recommendations (Page 162):

1. ATF should receive funding to develop a data system that tracks the history of each C&R firearm on the list to include: full description of the firearm, the date the firearm is added to the C&R list, identification of the criteria met to add the firearm to the C&R list, the person making the request, what museum stated the firearm was of historical interest, and who stated the firearm was rare, novel, or collectible. The three criteria for approving a firearm to be added to the C&R list are found in 27 C.F.R. §478. As possible, this information should be catalogued for ATFs current list C&R List -January 1972 through April 2018.

2. DOJ should review the C&R criteria in 27 C.F.R. §478 to determine if the “more than 50 years old” factor is still valid in determining that a firearm is truly a curio or relic. The C&R provisions were enacted in 1968 and firearms more than 50 years old at that time were manufactured prior to 1918. Today, firearms that are more than 50 years old were manufactured prior to 1972 and this now includes a wide variety of modem firearms to include some AR-15 type rifles, AK-47 type rifles, SKS rifles, and semi-automatic handguns. Importation, transfer, and background check regulations are different for firearms on the
C&R list and holders of a Type 03 FFL.

As I see it, these recommendations boil down to two things. First, BATFE says we want money to fund what we should have already been doing with existing funding. Second, BATFE is saying Springfield 1903s we were cool with but those icky ARs, AKs, SKSs, and semi-auto handguns give us the vapors.

Unfortunately, the Gun Control Act of 1968 gives the Attorney General the authority to define a curio or relic by regulation. Given the anti-gun, anti-rights bias of both Merrick Garland and President Joe Biden, this is a real problem. I could foresee them categorically removing the 50-year rule from what constitutes a curio and relic and limiting them to what is on the list. January 20. 2025 as well as January 2023 cannot get here soon enough.

A Machine Gun On Your C&R License?

Yes, you can use your C&R (Curios & Relics) License to purchase a machine gun. There are unfortunately a lot of caveats.

From Ian McCollum:

The short version is that a C&R license does not allow you to skip the NFA transfer process. You still must submit fingerprints and photographs, and wait 6-9 months for your tax stamp to be processed. Once it is approved, however, a C&R eligible machine gun can be shipped interstate to you, without having to go through an NFA dealer in your state.

For the record, the ATF has a document which lists C&R eligible firearms (https://www.atf.gov/file/128116/download). In addition, any firearms 50 years old or older is also considered a Curio & Relic…which now includes every gun registered in the 1968 amnesty.

John Keene of Morphy Auctions goes into more detail in this short video with Ian.

So, if you have the money (and lots of it), you could get that Thompson, that MP40, that Lewis Gun, that fill-in-the-blank machine gun, shipped directly to your house if you have a Curios & Relics license. Oh, and are willing to wait many months and don’t live in a state that has a total ban on machine guns.

A Nice Win For Gun Rights In A California Appeals Court

Prior to a letter sent out by the California Department of Justice in 2014, holders of Curios and Relics Federal Firearm Licenses who also had a certificate of eligibility were exempt from the one handgun a month rule. That changed when the DOJ’s Bureau of Firearms issued a letter to all dealers in California that said, in effect, that C&R FFLs would not exempt holders from the one handgun a month rule with regards to modern handguns. The Calguns Foundation and Cal-FFL brought suit in 2014 challenging this as a violation of the state’s Adminstrative Procedures Act, contradicted the plain language of Sec. 27535, and ignored the legislative history of the one handgun a month law. The case sought a preliminary injunction in California Superior Court.

The trial court found that the Bureau of Firearm’s interpretation of the law was “the only legally tenable interpretation of Sec. 27535” and granted the DOJ’s motion of summary judgement. The case was appealed to the California Court of Appeal, 3rd Appellate District which today overturned the trial court.

From the court’s opinion:

On appeal, plaintiffs argue the interpretation DOJ announced in 2014 is void
because (1) it is inconsistent with section 27535 and (2) it was not adopted in compliance
with the APA. We agree with plaintiffs and address their arguments in reverse order.
Regarding their second argument, we conclude DOJ’s policy is not exempt from being
promulgated under the APA because it does not embody “the only legally tenable
interpretation” of the statute. (Gov. Code, § 11340.9, subd. (f).) Having decided that
DOJ’s 2014 interpretation of section 27535 is void for failure to comply with the APA,
we resolve any ambiguity regarding the proper construction of the statute and construe it

as allowing individuals with the designated federal license, and certificate of eligibility,
to purchase more than one handgun within 30 days regardless of the type of handgun
being purchased. In doing so, we agree with plaintiffs’ first argument as well. We
reverse and remand for further proceedings consistent with this opinion.

Calguns and Cal-FFL released this statement on their win today:

SACRAMENTO, CA (February 8, 2018)­­­­­­ – In a published decision issued today, California’s 3rd District Court of Appeal has issued an important new ruling striking down an illegal California Department of Justice (DOJ) gun control enforcement policy on multiple grounds. A copy of the Court of Appeal’s decision can be viewed at www.calgunsfoundation.org/doe.

The lawsuit, filed in 2014, was brought by two individuals after the DOJ’s Bureau of Firearms sent a letter notifying firearms dealers in the state of a new enforcement policy that prevents Californians who hold both a federal firearms license and a state Certificate of Eligibility, or “COE”, from purchasing more than one handgun in any 30-day period. After nearly two years of litigation, and in spite of both the requirements of the State’s Administrative Procedure Act (APA) and legal precedents on how to interpret statutes, the Sacramento Superior Court upheld the DOJ’s policy. But the Court of Appeal ultimately found that the policy was illegal, agreeing with the plaintiffs on both counts.

“This decision stands for the proposition that Attorney General Becerra and his Department of Justice are not above the law,” explained Brandon Combs, executive director for The Calguns Foundation. “They can’t simply make up the law as they go, without following the rules or having a legal basis in the statutes. The DOJ fabricated and enforced an illegal policy and we put an end to it with this case.”

Combs added that the decision is important for other issues as well, especially because it is citable as precedent. “Today’s decision is perhaps even more important because of the state’s new ammunition and assault weapon laws. Attorney General Becerra has been doing similar things in other areas of state law, and we are eager to show that, like their illegal policy here, those also must be enjoined and struck down.”

Plaintiffs’ attorney Bradley Benbrook of the Sacramento-based Benbrook Law Group hailed the decision. “We are gratified that the court affirmed the important principle that the State can’t take shortcuts when it tries to regulate citizens,” commented Benbrook. “It has to follow the rules.”

Doe, et al. v. Attorney Genera Xavier Becerra, et al. was supported by two California-based civil rights advocacy organizations: The Calguns Foundation, which focuses on legal efforts to protect individuals’ gun rights, and the California Association of Federal Firearms Licensees, the state’s firearms industry group.

The Calguns Foundation is participating in a lawsuit challenging the DOJ’s “bullet button assault weapons” regulations on similar grounds. More information about that case can be found at http://bit.ly/cgf-holt.

While the golden age of cheap surplus weapons may be over, the Curios and Relics FFL is still valuable. The rule of the Court of Appeals today in California affirms that.