Deactivated MP40

**AZPhil** · 02-06-2014, 03:16 AM

Can you get any info on how it was deactivated/decommissioned to get a better clarification on it's status?

SF
Phil

**Anzel** · 02-06-2014, 03:28 AM

I just sent the owner of the mp40 a message asking for clarification.

**Anzel** · 02-06-2014, 03:30 AM

I think I'm going to let this go. I don't want to take chance on this. I will stick to the cloth and medals

**relicz** · 02-06-2014, 03:32 AM

Found this a while back - 4 to 6 years ago at any rate.

Here’s the Reader’s Digest version with machineguns in the US (and bear in mind, I’m speaking federal law only…not state law(s.)) By the way, it’s still a long read…

First off, DEWATs are DEactivated WAr Trophies…there’s a distinct difference between them and de-mil’ed machineguns. A DEWAT is/was a machinegun that is generally complete, but unserviceable, such as an MP40 with molten lead poured down the barrel, or an M3 “greasegun” with the barrel welded/pinned to the receiver. In short, it has an intact receiver. Here in the US, the receiver is the actually firearm. Everything else is just “parts” (and unregulated “parts” at that.) On the other hand, de-mil’d machineguns are machineguns that have been DE-Militarized. These generally have had the receiver destroyed or removed. In effect, these are the same thing we see on the market today as “parts kits.”

18USC CH44 is [originally] the 1968 Gun Control Act, and is the general set of statutes dealing with firearms today…it regulates firearms and FFLs. It also includes more recent laws, such as the 1986 Firearms Owners Protection Act and the 1994 “Assault Weapons Ban” (currently defunct.)

18USC CH44 921(a)(3)(B) is what defines a firearm as (among other things) “the frame of receiver of any such weapon.” In other words, it doesn’t have to shoot or function, or even function safely/correctly. A receiver is a firearm, and a machinegun receiver is a machinegun. Carrying it a bit further, 26USC CH53 5845(a) and (B) define “firearm” and “machinegun” in pretty much the same terms. (26USC CH53 is the 1934 National Firearms Act.)

The 1934 National Firearms Act was established to control machineguns and other weapons that were not normally used for hunting, self-defense, etc…, and were more military/militia in nature. Since the Second Amendment protected firearm ownership, Congress couldn’t ban machineguns, but they could try and tax them out of existence. Machineguns were required to be taxed and registered, and at the time the tax was set to $200…the equivalent of about half a year’s wages (or about the same as the price of a new Thompson submachinegun. Remember too, 1934 was at the height of the Great Depression.)

In order for a machinegun to be legally possessed, the gun must be registered in the NFRTR (National Firearms Registry and Transfer Record) AND both the transferor and transferee must be good moral character (i.e., not a convicted felon, crazy, drunkard/pothead, etc…) Additionally, the transferee’s chief law enforcement officer must attest to the fact that possession of the NFA device was not contrary to local law and that he had no knowledge that the potential transferee would misuse the NFA device about to be transferred. If all of that came into the BATF as acceptable, and the MG/NFA device was registered, they’d transfer registration of the MG to the new person, who then became the registrant of record. MGs and other NFA may not be possessed if they are not registered in the NFRTR, nor may they possessed by anyone other than the registrant of record. (In other words, you can’t lend your Thompson SMG to your best friend so he can go to the range with it.)

Up until 1986, one could legally register a machinegun they had built by using a BATF Form 1…Tax-Paid Application to Make and Register a [NFA] Firearm. Most often, someone would purchase a parts kit (for example, a Sten gun kit, with everything but the receiver tube.) They’d file a Form 1 and when the Form 1 was approved, take a piece of tubing and make a Sten receiver (i.e, the actual firearm.) Then they’d weld the whole thing together, and it was perfectly legal. Legally, however, one could not register an already-made MG. I.e., one couldn’t take an original MP40 and register it. Instead, one had to destroy the MG by cutting the receiver in half or otherwise destroying the original receiver, filing a Form 1 (or a Form 2 if an FFL), and then making a new receiver upon approval (either by re-welding the original-but-destroyed-receiver, or creating a whole new receiver.) There really wasn’t a mechanism in place for registering unregistered MG, but the Form 10 was a generally accepted (but unorthodox) method. That is, the apparent original intent of the Form 10 was to be a mechanism for a police department (or similar agency) to register an unregistered MG. Until sometime around 1971(?) the BATF ocassionally allowed MGs to be registered on a Form 10 and then to be transferred to FFLs, FFL/SOTs, and individuals. Post-1971(?), the BATF ruled that any MG registered on a Form 10 could not be a transferable MG, and was instead restricted as a “dealer sample.” Today, a Form 10’d MG has a bit more restriction, having been accorded the status of a “post-’86 dealer sample”, meaning it can only be possessed by an active FFL/SOT, a bonafide law enforcement agency, or other government agency such a museum that receives federal recognition and funding. And once it’s been registered/transferred on a Form 10, it can never go back to transferable status. Never.

Backing up a bit…

The 1968 GCA was intended to settle some issues mainly with Title I firearms, but to a lesser extent, with Title II firearms. (Title II firearms are NFA devices such as machineguns, suppressors, short-barreled rifles and shotguns, “destructive devices” (cannons, grenades, rockets, etc…), and AOWs (Any Other Weapons…cane guns, flashlight guns, certain combination guns like some of the H&R Handi-Guns, etc… Title I firearms are everything else…bare receivers, bolt action and semi-automatic firearms, etc… the run-of-the-mill stuff you buy at Walmart.) One of the issues settled was to define a firearm as the frame of receiver of a firearm. (And since MGs are firearms, an MG receiver is an MG.)

In terms of the NFA, the ’68 GCA halted the importation of MGs except for use as “dealer sales samples.” Today, these MGs are commonly referred to as “keepers”, “pre-samples”, or “pre-’86 samples.” Dealers were allowed to import these after 1968, but they were prohibited from transferring them to anyone who wasn’t a government agency or an FFL/SOT (i.e., a Federal Firearms Licensee who’d also paid their Special Occupational Tax to be a dealer/manufacturer/importer of NFA devices a “Class II manufacturer”, or “Class III dealer” for example.) These “pre-samples” transferred tax-free between FFL/SOTs and government agencies, and they can be kept by the FFL/SOT if he relinquishes his SOT status, but cannot be sold/transferred to an individual.

Another Title II issue addressed by the ’68 GCA was DEWAT machineguns. They were required to be registered since they had an intact receiver. Prior to the 1968 GCA, DEWAT MGs were not required to be registered, since the then-current definition of an MG simply said it was a firearm that would fire more than one round with a single function of the trigger...welded solid, or filled withlead, it couldn't fire anything. (Changing the definition of a firearm to include a bare frame/receiver necessitated registration of intact-receivered MGs.)

To deal with DEWATS, as well as MGs that were in transit/importation-but-not-here-yet, plus any other MGs “out there” the Secretary of the Treasury held a limited amnesty (November to December, 1968) that allowed a for a true, no-questions-asked registration of unregistered MGs and other NFA devices. The 1968 amnesty allowed the registration of unregistered NFA devices by using a Form 4467.

The 1934 NFA authorizes the Secretary of the Treasury to hold an unlimited number of amnesties (none of which can exceed 90 days.) To date, there has been only one amnesty for registering MGs (in 1968.) Just a few years ago, the BATF held its own, (legally questionable) amnesty for the Cobray Streetsweeper shotguns, Striker 12 shotguns, and USAS shotguns when Lloyd Bentsen had them declared as “unsporting” and therefore an NFA-regulated “destructive device.”

In 1986, Congress passed the Firearms Owners Protection Act (’86 FOPA) which was generally a good thing for gun owners. Among the benefits to gun owners, it ended the requirements to have an FFL in order to sell ammunition and allowed for mail-order ammunition sales, it provided for and protected peaceable journey (i.e., traveling with your firearms through an area that prohibits firearms.) However, it added another part to the 1968 GCA (18USC CH44.) This new part, section 922(o), halted the registration of all machineguns as of May 19, 1986 (the date the 1986 FOPA was signed into law.) Regardless of the date of original manufacture, if an MG was not registered by May 19, 1986, it could never be registered and never be transferred to anyone except an FFL/SOT or a government agency. It effectively created a third classification of MGs: “post-samples”/“post-‘86 samples” While these guns carry almost the same restrictions as the “pre-samples” (transferable only to Government agency or active FFL/SOT…someone who’s SOT status is current.) Moreover, they can’t go to just any FFL/SOT; they have to go to an FFL/SOT who has a bonafide “need” for them…

For example, let’s say I have an FFL/SOT and want to buy a brand new MP5SD form Heckler and Koch. I can’t just order a couple to keep in stock on the hopes that I can sell them to my local police department. I have to send the BATF a “love letter”…a letter from the police department/government agency who is requesting a demonstration of the new MP5SD (perhaps they want to buy one, perhaps they want to know how to operate/disable on if they raid a drug dealer’s house, etc….) I send in the love letter with the Form 3 (tax-free transfer…if I’m buying from another FFL/SOT) or Form 5 (to/from a government agency…also a tax-free transfer) and await approval.

Pulling this all together, if you have a DEWAT with an intact receiver, or if you have nothing but an intact MG receiver, or if you have a live machinegun, you have a machinegun. The machinegun must be registered in the NFRTR, and registration must have taken place prior to May 19, 1986 (regardless of the date of original manufacture.) There is no way to presently register an unregistered machinegun. Finally, even if the gun is listed in the NFRTR, it needs to be registered to the person currently in possession of it. Anything else…not in the NFRTR, not registered to the possessor, etc… constitutes unlawful possession. Unlawful possession of an unregistered NFA device carries a federal penalty of up to ten years’ imprisonment and up to a $250k fine for each count. In other words, having grandpa’s unregistered MP40 he brought back from Normandy in 1944 can count as many as three or four counts…possession of an unregistered MG, receiving an unregistered MG, possessing an MG not registered to you, etc…bad juju.

That said, if you have an MG that you think may be unregistered, you need to look long and hard for any kind of paperwork that lists the MG…BATF Forms 1, 2, 3, 4, 5, 6, 4467, 4473, etc… Even DoD capture papers have been used to prove lawful registration and possession. Likewise, under the terms of the 1968 amnesty, if you can prove you had your unregistered MG during the amnesty but that you were uncontrollably out of the country and unable to register it during the amnesty (ex., you were deployed to Vietnam or elsewhere overseas, you may still be able to register it….rare but possible. Unfortunately, you can just call the BATF’s NFA Branch and ask “is MP 40 s/n 12345 registered?” because they cannot legally release the information…it’s classified as privileged and private tax information. (Remember, a machinegun transfer is in reality a tax issue, and your Form 1/2/3/4/5/6/4476 is a tax return.)

If, however, you've exhuasted all possible avenues to determine if your MG is unregistered and cannot find evidence that it is, your only legitimate choices are: surrender the entire firearm to the BATF; destroy the receiver (and sell the rest of the parts to those of us who have registered MGs); or donate it to a qualified museum.

**Wagriff** · 02-06-2014, 03:36 AM

A Dummy gun-with a parts kit is a totally different animal and is fine to own without all the rigamarole. It is only if it either once had been or can conceivably be made to be fire-able again, even with extensive reworking, that you run into problems. But, if it is, say, a block of wood that's been drilled, painted etc with genuine parts attached all over it, it's fine.

**Anzel** · 02-06-2014, 03:56 AM

John,
Thanks for all the information. It seems like a hornets nest with the seller. He is avoiding my question about the above topic of registration/paperwork. Staying away from this one. I posted a photo of it in previous #12. Something doesn't seem right.

**AZPhil** · 02-06-2014, 04:09 AM

Thanks Anzel for the pic.
Damn I love them even if the collapsible stock sags a bit and the mag well looks like it is not matching. I still drool a little when I see one. I have a friend that is a SOT and have shot his MG34,MG 42(He has 2)But I am always drawn to his MP40. I have a parts kit BUT that doesn't count for crap!!!!

Thank you John for that excellent ATF NFA/GCA lesson and also a thanks to William for clarifying what I had asked.
It does suck that we can't just pick and choose what we would like to add to our collections!!!!!!

SF
Phil

**AZPhil** · 02-06-2014, 04:15 AM

Anzel,
Not to say that the Alphabet boys(ATF) would not set up a sting to grab someone(YES THEY WOULD) But now a day's it is better to be cautious than foolish and wind up with a free ticket to Club Fed!!!!
SF
Phil