You likely know of Biden’s latest rule affecting firearms and firearm owners. This three-hundred-and-some-page monstrosity, known as 2021R-05F, covers everything from the definition of “firearm” to record retention of FFL’s business documents. I’ll focus on one piece of this rule today: “Privately made firearm” or PMFs.
What is a Privately made firearm? Well, a PMF is not a firearm made by a company as opposed to a government owned entity. Nor is it a firearm made by a privately owned company as opposed to a publicly owned company. It is not even a firearm made by a person as opposed to a company.
“Private” is actually used to describe a person “other than a licensed manufacturer.” A more cumbersome, but accurate description would be “Non-licensee made firearm.” Now wouldn’t that be illuminating?
The full definition of PMF will assist in understanding the term:
“Privately made firearm (PMF). A firearm, including a frame or receiver, completed, assembled, or otherwise produced by a person other than a licensed manufacturer, and without a serial number placed by a licensed manufacturer at the time the firearm was produced. The term shall not include a firearm identified and registered in the National Firearms Registration and Transfer Record pursuant to chapter 53, title 26, United States Code, or any firearm manufactured or made before October 22, 1968 (unless remanufactured after that date).”
27 CFR § 478.11.
In layman terms, a PMF is:
A firearm made after October 22, 1968 without a serial number from a licensee.
Why the extra verbiage?
Red tape is a government specialty. If bureaucrats do not like an industry, they make it very confusing to do business in that industry. The regulations are enforced selectively and without consistency. Statutory interpretations and regulations are changed often. This is a classic recipe of authoritarian government to discourage activity that cannot be outright outlawed.
Less cynically, the ATF intended the definition of “made” to be broad enough to include assembly and completion, along with manufacturing and any other means of production. This eliminates arguing that a firearm only assembled or completed, not “made”, falls outside the definition.
Favorably, the ATF recognized that NFA firearms already have appropriate serial numbers and need not be included, and that firearms made before the Gun Control Act of 1968 are appropriate for grandfathering even if unserialized.
PMF marking requirements.
Now that PMFs have been defined, the ATF requires licensees to mark these firearms in specific instances.
You, non-licensee, do not have to mark your PMF. You can make firearms, as many as you like, and not mark them. You can occasionally sell them and not mark the firearm. You can buy them and not mark the firearm. (Note: You cannot buy and sell, or make and sell, with the purpose of conducting a trade or making a profit. That has and still requires a license.)
However, if a licensee, that is a gun shop with an FFL, acquires a PMF in its inventory, the licensee must mark the PMF. That is, the gun shop will have to engrave its name, city and state and a unique serial number on the PMF firearm. (Licensees may use an abbreviated version of their license number instead of their name and may also adopt a non-licensee serial number in part if it otherwise meets the regulations.)
This is true even if the licensee only accepts the firearm for gunsmithing. But it is only true if the licensee accepts the firearm into inventory. A firearm received and returned to its owner in the same day is not recorded in inventory. Thus gunsmiths may continue to work on PMFs, without marking the firearm, as long as the gun is not retained overnight.
Gunshops will have to start marking PMFs. Existing rules are in place until August 24, 2022. At that time any PMF in the inventory of a licensee will have to be marked. The initial grace period for guns in inventory on August 24, 2022 is 60 days, and after that any PMF taken into inventory will have to be marked within 7 days.
The Practical Effect
Marking PMFs creates a burden that many licensees are not equipped to handle. Sure the regulations allow a licensee to take a firearm to another location, remain with the firearm, and have it marked. But how much cost does that add to each transaction with a PMF? Because only 7 days are allowed to mark the PMF, licensees cannot collect up a bunch in an attempt to achieve economy of scale. Rather they must mark PMFs each week.
As the ATF readily admits, nothing requires a licensee to accept a PMF into inventory. A gun shop can simply choose not to buy PMFs. With the increased cost and trouble of marking PMFs, many gun shops simply won’t deal in these firearms. Sellers will be forced to market the guns on the secondary market directly to consumers.
Rather than ensure that PMFs are serialized, the regulations actually discourage the selling of these firearms through licensed channels that conduct background checks. Effectively a greater percentage of unserialized firearms will be sold on the secondary market. What a boon for criminals!
In the Name of Safety
Government regulations with good intentions have unintended consequences. In this case the regulations, designed to track PMFs once they enter the stream of commerce, will actually discourage commercial sales of such firearms. Instead, commercial sales with background checks will be replaced with private consumer-to-consumer sales that are unregulated.
Is the Biden ATF too ignorant to see this? Or is this ‘unintended consequence’ designed into the rule to create an artificial demand for ‘universal background checks?’
The bottom line is this: You can still make firearms for personal use, and you do not have to mark those firearms in any way. The market for used PMFs just got smaller, and if you only like to deal with licensed shops, that market is likely eliminated. That’s the effect of this change. If you want to know why it will be harder to make PMFs, then you’ll enjoy my upcoming piece.