I get this question a lot, and it’s clear that there is some confusion out there about what it means to “register” a firearm. It is the purpose of this article to lend some clarity to the subject.
In order to comprehensively address the topic of firearms registration, I will make two distinctions. The first distinction is between the categories of firearms: those which are subject to the National Firearms Act (“NFA Firearms”), and those which are not (“non-NFA Firearms”). (I am avoiding other often-used terms, like “Title I Firearms,” “Title II Firearms,” or “Class III Firearms” as they are inaccurate and misleading.) The second distinction I will make is between registering a firearm, on the one hand, and undergoing an ownership transfer background check, on the other.
Categories of Firearms
Returning to the two types of firearms, “non-NFA Firearms” are the most commonly owned guns, and this category includes handguns (revolvers and semi-automatic pistols) and long guns (rifles and shotguns). Only a handful of states require registration of these types of guns. In fact, here in Pennsylvania we have laws that affirmatively prohibit registration of firearms. The premise of such a prohibition is that firearm registration is a step down a slippery slope, leading to eventual confiscation. Conversely, the motivation behind background checks is to ensure that those who are “Prohibited Persons” (such as felons, for instance) are not allowed to own guns.
However, the law still requires the transferee (the recipient) of certain non-NFA Firearms to undergo a background check (as mentioned above, for the purpose of making sure a transferee is not a “Prohibited Person”). This is done at a Federal Firearms Licensee (“FFL,” i.e. a dealer) who runs a background check on the transferee through the NICS (the National Instant Criminal Background Check System) database, though here in Pennsylvania we use the “PICS” (Pennsylvania Instant Check System). This is always accompanied by the completion of an ATF Form 4473, as well as the Pennsylvania State Police Application/Record of Sale form (SP 4-113) which is the form that lists the various factors prohibiting gun ownership.
(CAUTION: we have had many clients stumble into trouble by filling out one of these forms without a proper understanding of what they mean – read the instructions on the back of the forms before completing them, because an incorrect answer can lead to criminal charges.)
All Pennsylvania handgun transfers must be subjected to a PICS check, with the completion of a Form 4473 by the transferee of the handgun. However, PICS checks (and therefore ATF Form 4473s) are not required for long gun (i.e. rifles and shotguns) transfers in Pennsylvania (as long as the barrels are not shortened). That means that a handgun which is owned in Pennsylvania but which was not properly transferred at an FFL (with a PICS check and ATF Form 4473) is an illegal handgun, and its possession will subject the owner to criminal penalties. (There are some exceptions to this, though, such as transfers between a parent and an adult child.) A long gun, however, as indicated above, can be transferred in Pennsylvania without an FFL-completed PICS check and ATF Form 4473, and therefore you can transfer ownership of a long gun in Pennsylvania with just a hand shake. (It is, however, strongly recommended that at least a Bill of Sale always be completed for such transfers.)
Background Checks and Registrations
As distinguished from a background check as described above, the registration of firearms is not permitted in Pennsylvania. In those other states requiring firearms registration, the process usually involves bringing the firearm to the local police station for the purpose of alerting the municipality of its presence in their jurisdiction. This is an additional step that some other states require, and is typically done almost immediately after the ownership transfer and NICS background check. (Residents of other states should check their local laws on specific procedures.)
It has been claimed, and rightly so, that many states’ background check procedures in fact constitute ‘back door’ registrations, since the final result is the same – the government knows who has what guns. Pennsylvania is a good example of this. Even though we have a statute on the books which specifically outlaws any firearm registration, a dealer-facilitated background check must accompany all handgun transfers, the form that the transferee fills out is then kept by the dealer, and a copy is sent to the Pennsylvania State Police.
However, the storage of firearm purchaser information, while currently an unfortunate feature of our firearms transfer procedure, is not a necessary feature of a background check per se. In other words (and here I describe not what the law is, but what it could be) it would be entirely reasonable for a dealer to conduct a background check on a transferee by simply calling the state police and getting a ‘thumbs up’ or ‘thumbs down’ on the transferee, without generating unnecessary paperwork for storage purposes. The state police could limit its record keeping to the fact that a background check was done on a specific firearm at a specific dealer, without any reference to the identity of the transferee. Only the dealer would maintain a photocopy of the transferee’s driver’s license, which he would only be mandated to provide to law enforcement if a warrant was issued for its provision, in the case that a crime had been committed with the firearm in question.
Such a process would prevent a background check from becoming a ‘back door’ registration, but would also address legitimate law enforcement needs. Since this is not the case at present, the only firearms owners in Pennsylvania who are currently not subject to any kind of ‘back door’ registration are those who have purchased their long guns privately.
Returning to the law as it is, the other category of firearms is “NFA Firearms,” which term is defined as including any of the following: (A) a “short-barreled shotgun,” the barrel(s) of which measure(s) less than 18 inches, or the overall length of which is less than 26 inches; (B) a “short-barreled rifle,” the barrel of which measures less than 16 inches, or the overall length of which is less than 26 inches; (C) “any other weapon” (“AOW”) (a pen gun, for example); (D) a machine gun; (E) a silencer (a/k/a “suppressor”); or (F) a destructive device (a grenade, for example). As in all other states, in Pennsylvania all NFA Firearms must be registered with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (which is still commonly referred to as the “ATF”).
A “Form 4” is the ATF form required to transfer and register an NFA Firearm. Upon approval of a Form 4, an owner is issued a “tax stamp” (since the National Firearms Act is simply a chapter within the Internal Revenue Code), and only then may the applicant take possession of the NFA Firearm.
Pennsylvania prohibits the possession of “destructive devices,” calling them “Prohibited Offensive Weapons,” but allows for the possession of any of the other above-listed NFA Firearms, provided they are properly registered with the ATF.
Let us keep in mind, then, that the PICS background check (in theory at least) simply ensures that a transferee is not a Prohibited Person, and, with some exceptions, nearly all firearms (both NFA and non-NFA) are subject to background checks. Registration, on the other hand, while required for the transfer of NFA Firearms, is not officially permitted in Pennsylvania. May we be precise in our terminology, and zealous to keep these terms distinct, both in theory and in practice, remembering that background checks are intended to keep guns out of the hands of the bad guys, whereas registration may eventually keep them out of the hands of the good guys.
Josh Bodene, Esq., an associate in the law firm of Trinity Law, is a firearms enthusiast and handles all aspects of firearms law.