Meaning of “Federally Licensed Gunsmith” In Background Check Statute

FIREARMS—STATUTES—Meaning of “Federally Licensed Gunsmith” In Background Check Statute

A person licensed as a “dealer” under 18 U.S.C. § 923(a) is a “federally licensed gunsmith” when engaged in the business of repairing or modifying firearms, and a person licensed as a “manufacturer” or an “importer” under 18 U.S.C. § 923(a) is a “federally licensed gunsmith” when engaged in the business of repairing or modifying firearms of the type he or she manufactures or imports at the premises where he or she is licensed to manufacture or import them.

October 5, 2020

Dear Prosecutor Meyer:

            By letter previously acknowledged, you have requested an opinion on a question that we divide into three parts and paraphrase as follows:

1.         Is a person who repairs or services firearms and is licensed as a dealer under 18 U.S.C. § 923(a) a “federally licensed gunsmith” under RCW 9.41.113(4)(f)?

2.         Is a person who repairs or services firearms and is licensed as a manufacturer under 18 U.S.C. § 923(a) a “federally licensed gunsmith” under RCW 9.41.113(4)(f)?

3.         Is a person who repairs or services firearms and is licensed as an importer under 18 U.S.C. § 923(a) a “federally licensed gunsmith” under RCW 9.41.113(4)(f)?

BRIEF ANSWER

1.         Yes. A person licensed as a dealer under 18 U.S.C. § 923(a) who is engaged in the business of repairing or modifying firearms is a “federally licensed gunsmith” under RCW 9.41.113(4)(f).

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2.         Under certain circumstances, yes. A person licensed as a manufacturer under 18 U.S.C. § 923(a) who is engaged in the business of repairing or modifying the types of firearms he or she manufactures at the premises where he or she is licensed to manufacture them is a federally licensed gunsmith.

3.         Under certain circumstances, yes. A person licensed as an importer under 18 U.S.C. § 923(a) who is engaged in the business of repairing or modifying the types of firearms he or she imports at the premises where he or she is licensed to import them is a federally licensed gunsmith.

BACKGROUND

A.        Initiative 594

            In November 2014, Washington voters approved Initiative 594, which generally requires a background check whenever a person sells or transfers a firearm. Laws of 2015, ch. 1, §§ 1-12. The initiative’s core background check provision, currently codified at RCW 9.41.113(1), provides:

            All firearm sales or transfers, in whole or part in this state including without limitation a sale or transfer where either the purchaser or seller or transferee or transferor is in Washington, shall be subject to background checks unless specifically exempted by state or federal law. The background check requirement applies to all sales or transfers including, but not limited to, sales and transfers through a licensed dealer, at gun shows, online, and between unlicensed persons.

Laws of 2015, ch. 1, § 3 (emphases added).              

            RCW 9.41.113(4) sets forth some of the exemptions referenced in RCW 9.41.113(1). As relevant here, RCW 9.41.113(4)(f) provides that “[t]his section does not apply to . . . [a] federally licensed gunsmith who receives a firearm solely for the purposes of service or repair, or the return of the firearm to its owner by the federally licensed gunsmith[.]”

            The term “gunsmith” is not defined in RCW 9.41. RCW 9.41.113(4)(f); see generally RCW 9.41.010. We interpret the language of I-594 to give effect to the “collective intent” of the voters who enacted it, applying the ordinary rules of interpretation to do so. Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762 (2000). Under those rules, when an undefined term is a “term of art,” we generally give the word its technical definition even when a common definition is available. State v. Veliz, 176 Wn.2d 849, 854, 298 P.3d 75 (2013). By modifying the term “gunsmith” with the phrase “federally licensed,” the voters evidenced their intent that federal law would guide its definition. RCW 9.41.113(4)(f); State v. Gray, 5 Wn. App. 2d 625, 627-28, 428 P.3d 360 (2018) (a word has meaning as a term of art where state law incorporates its federal law meaning).

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B.        The Federal Firearms Licensing Scheme

            The Gun Control Act of 1968 (GCA), Pub. L. No. 90-618, 82 Stat. 1213 (codified as amended at 18 U.S.C. §§ 921-931), “imposes both a regulatory licensing scheme and criminal prohibitions on specified firearms transactions.” Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 7 (D.C. Cir. 2019) (citing 18 U.S.C. §§ 922, 923), cert. denied, 140 S. Ct. 789 (2020); see United States v. King, 735 F.3d 1098, 1105 (9th Cir. 2013) (identifying the GCA as setting forth the requirements for a federal firearms license); cf. State v. Carter, 161 Wn. App. 532, 542-44, 255 P.3d 721 (2011) (determining that a similar federal license requirement in other provisions of RCW 9.41 referred to the GCA’s licensing scheme). The GCA’s licensing provision concerned with commercial activity,[1] 18 U.S.C. § 923(a), provides that “[n]o person shall engage in the business of importing, manufacturing, or dealing in firearms . . . until he [or she] has filed an application with and received a license to do so from the Attorney General.” Accordingly, every importer, manufacturer, or dealer in firearms must obtain a federal firearms license before engaging in business. 18 U.S.C. § 923(a)(1)-(3).

            Congress tasked the Attorney General with administering the GCA. 18 U.S.C. § 926(a). The Attorney General delegated that legislatively granted authority to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). 28 C.F.R. § 0.130(a)(1). The ATF has exercised that delegated power and promulgated regulations that implement the GCA, 27 C.F.R. §§ 478.1-.171, and issued rulings interpreting the statute. United States Bureau of Alcohol, Tobacco, Firearms & Explosives, Rulings and Regulations: Rulings, https://www.atf.gov/rules-and-regulations/rulings (last visited May 6, 2020).[2]

            The word “gunsmith” does not appear in the text of the GCA See generally 18 U.S.C. § 921. The term “gunsmith” does, however, appear in both the ATF regulations implementing the GCA and in its rulings interpreting the GCA. We therefore turn to those sources of authority next while answering your specific questions.

ANALYSIS

1.         Is a person who repairs or services firearms and is licensed as a dealer under 18 U.S.C. § 923(a) a “federally licensed gunsmith” under RCW 9.41.113(4)(f)?

            Your first question is whether a person licensed as a dealer under the GCA who repairs or services firearms is a federally licensed gunsmith for purposes of RCW 9.41.113(4)(f). Based on

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the ATF’s implementing regulations and rulings interpreting the GCA, we conclude that such a person is.

            The GCA defines the term “dealer” as a person (1) engaging in business by selling firearms at wholesale or retail, (2) “engag[ing] in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms,” or (3) who is a pawnbroker.[3] 18 U.S.C. § 921(a)(11)(A)-(C). A person licensed as a dealer under the GCA is a “licensed dealer.”[4] 18 U.S.C. § 921(a)(11).

            The ATF’s GCA-implementing regulations indicate that a person engaged in the business of repairing or modifying firearms is a “gunsmith.” Specifically, they provide that a “gunsmith” “engage[s] in . . . business” by “devot[ing] time, attention, and labor” to such activity, meaning repairing or modifying firearms, “as a regular course of trade or business with the principal objective of livelihood and profit[.]” 27 C.F.R. § 478.11 (defining “engaged in the business” for a “gunsmith”).

            The ATF’s rulings confirm that a person engaged in the business of repairing or modifying firearms is a gunsmith. For example, one of the ATF’s rulings provides:

[18 U.S.C. §] 921(a)(11)(B) defines a “dealer,” in relevant part, [“]as any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms.” A person meeting this definition is commonly referred to as a “gunsmith.”

U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives, ATF Rul. 2015-1, at 2 (Jan. 2, 2015), https://www.atf.gov/firearms/docs/ruling/2015-1-manufacturing-and-gunsm… (last visited Mar. 20, 2020) (ATF Ruling 2015-1). Another ATF ruling states:

The term “dealer” is defined by 18 U.S.C. 921(a)(11)(B) and 27 CFR 478.11 to include “any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms . . .” (i.e., a gunsmith). As applied to a gunsmith, the term “engaged in the business” is defined by 18 U.S.C. 921(a)(21)(D) and 27 CFR 478.11 as a “person who devotes time, attention, and labor to engaging in such activity as a regular course of trade or business with the principal objective of livelihood and profit . . .”[.]

U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives, ATF Rul. 2010-10, at 2 (Dec. 27, 2010) (ellipses in original), https://www.atf.gov/firearms/docs/ruling/2010-10-manufacturing-

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operations-maybe-performed-licensed-gunsmiths-under/download (last visited May 5, 2020) (ATF Ruling 2010-10).

Under the ATF’s regulations and rulings, a gunsmith is a person who engages in the business of repairing or modifying firearms. Such a person is a dealer under the GCA’s definitional statute. Thus, a licensed dealer under the GCA who is engaged in the business of repairing or modifying firearms is a “federally licensed gunsmith” within the meaning of RCW 9.41.113(4)().

2.         Is a person who repairs or services firearms and is licensed as a manufacturer under 18 U.S.C. § 923(a) a “federally licensed gunsmith” under RCW 9.41.113(4)(f)?

            Your second question concerns whether a person licensed as a manufacturer under the GCA who repairs or services firearms is a federally licensed gunsmith for purposes of RCW 9.41.113(4)(f). Because of the way the GCA and its implementing regulations work, we conclude that such a person is acting as a federally licensed gunsmith if engaged in the business of repairing or modifying firearms of the same type he or she manufactures where he or she is licensed to manufacture firearms.

            The GCA defines a “manufacturer” as “any person engaged in the business of manufacturing firearms or ammunition for purposes of sale or distribution.” 18 U.S.C. § 921(a)(10). A person licensed to manufacture firearms under the GCA is a “licensed manufacturer.” 18 U.S.C. § 921(a)(10).

            Under specific conditions, a manufacturer’s license issued under 18 U.S.C. § 923(a) permits the manufacturer to act as a dealer. While a person must generally obtain a federal firearms license “for each business and each place at which [an] applicant is to do business . . . it shall not be necessary for a licensed importer or a licensed manufacturer to also obtain a dealer’s license in order to engage in business on the licensed premises as a dealer in the same type of firearms authorized by the license to be imported or manufactured.” 27 C.F.R. § 478.41(b). Thus, under the circumstances just described, a manufacturer is treated as having a dealer’s license. And a person licensed as a dealer under the GCA may act as a gunsmith.[5] Thus, a person licensed as a manufacturer under the GCA is acting as a “federally licensed gunsmith” within the meaning of RCW 9.41.113(4)(f) when engaged in the business of repairing or modifying the types of firearms he or she manufactures at the place where the ATF has licensed him or her to manufacture those firearms.

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3.         Is a person who repairs or services firearms and is licensed as an importer under 18 U.S.C. § 923(a) a “federally licensed gunsmith” under RCW 9.41.113(4)(f)?

            Your final question concerns whether a person licensed as an importer under the GCA who services or repairs firearms is a federally licensed gunsmith within the meaning of RCW 9.41.113(4)(f). Again, because of the way the regulations implementing the GCA work, such a person is acting as a federally licensed gunsmith if engaged in the business of repairing or modifying the same type of firearms he or she imports at the premises where he or she is licensed to import firearms.

            The GCA defines an “importer” as “any person engaged in the business of importing or bringing firearms or ammunition into the United States for purposes of sale or distribution.” 18 U.S.C. § 921(a)(9). A person licensed to import firearms under the GCA is a “licensed importer.” 18 U.S.C. § 921(a)(9).

            The same features of federal law discussed above for manufacturers also apply to importers. 27 C.F.R. § 478.41(b). Under the circumstances described in 27 C.F.R. § 478.41(b), a licensed importer is treated as having a dealer’s license. And, again, a federally licensed dealer may engage in the business of repairing or modifying firearms. A federally licensed importer is therefore acting as a “federally licensed gunsmith” under RCW 9.41.113(4)(f) when engaged in the business of repairing or modifying the same type of firearms he or she imports at the premises where he or she is licensed for import.

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

s/ Jeff Roberson
JEFF ROBERSON
   Assistant Attorney General
360-664-1188

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