Legally Armed: V19N7

By Teresa G. Ficaretta, Esq. & Johanna Reeves, Esq.

Curio or Relic Firearms vs. Collector’s Items: What’s the Difference?

Classifications of firearms as curios or relics and/or collector’s items have legal significance that affects importation, transfer, interstate movement, and the ability of firearms enthusiasts to acquire such firearms. This article will explain the two terms, the significance of classifications by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and will provide tips on submitting requests for classification to ATF.

I. Curio or Relic Firearms

A. What is a Curio or Relic?

The term “curio or relic” is not defined in the Gun Control Act (GCA), 18 U.S.C. Chapter 44. It is referenced in several provisions of the GCA, including the definition of “collector” in 18 U.S.C. § 921(a)(13), and in the import provisions of the GCA in 18 U.S.C. §
925(d) and (e).

ATF regulations implementing the GCA in 27 C.F.R. Part 478 define the term “curios or relics.” The regulatory definition in 27 C.F.R. § 478.11 provides as follows:

Curios or relics. Firearms which are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons. To be recognized as curios or relics, firearms must fall within one of the following categories:

(a) Firearms which were manufactured at least 50 years prior to the current date, but not including replicas thereof;

(b) Firearms which are certified by the curator of a municipal, State, or Federal museum which exhibits firearms to be curios or relics of
museum interest; and

(c) Any other firearms which derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event. Proof of qualification of a particular firearm under this category may be established by evidence of present value and evidence that like firearms are not available except as collector’s items, or that the value of like firearms in ordinary commercial channels is substantially less.

An appropriations restriction has been included in ATF’s annual appropriations since 1994 prohibiting the agency from amending the above regulatory definition. The restriction also prohibits the removal of any firearm from the Firearms Curios or Relics List if the firearm was on the list on January 1, 1994. Until this restriction is lifted, ATF cannot change the regulatory definition of
“curio or relic.”

ATF publishes a list of firearms classified as “curios or relics” on its website, www.atf.gov. The current list, ATF Publication 5300.1, was revised in December 2007. ATF has published updates to the list through June 2010.

ATF regulations in 27 C.F.R. § 478.26 set forth the method for obtaining a determination whether a particular firearms is a curio or relic. The regulation requires submission of a written request, in duplicate, for a ruling to the Director. ATF has delegated C&R determinations to the Firearms and Ammunition Technology Division, and the authors recommend submitting the request to the division Chief. The regulations require requests for classification be executed under penalties of perjury and contain a complete and accurate description of the firearm and photographs, diagrams, or drawings as may be necessary to assist with the determination. Finally, the regulations provide that a sample of the firearm may be required for examination and evaluation.

Based on the regulatory definition of “curios or relics,” there are three ways a firearm may be classified as C&R. The first is that it be at least 50 years old. ATF has stated that firearms automatically attain C&R status when they are 50 years old, and it is not necessary for such firearms to be listed in the Firearms Curios or Relics List to be so classified. Assuming no problems in verifying the age of a particular firearm, this is the easiest way for a firearm to attain C&R status.

The second way for firearms to be classified as C&R is for a curator of a government-owned museum to certify that the firearms are of “museum interest.” A number of firearms classified as C&R made their way onto the list through the museum curator certification process. This requires that an applicant send a letter to the Chief, Firearms and Ammunition Technology Division, requesting classification of the particular firearm as a curio or relic. The application must include a letter from a curator of a Federal, State, or municipal museum certifying that the firearms are of museum interest.

Applicants who seek classification under the museum curator certification process should be forewarned that ATF requires a great deal of specificity in the certification. The agency is likely to require a list of all serial numbers for firearms sought to be classified as C&R; specific information as to why the firearms are of museum interest (e.g., associated with particular military conflicts, military operations, or other historical events), and evidence supporting the museum curator’s conclusions. The applicant may also be asked to provide evidence that the curator is associated with a government-owned museum, as opposed to a private museum.

The third way for firearms to be classified as C&R is to request ATF make a determination under paragraph (c) of the regulatory definition. Such a request should be submitted in writing to the Chief, Firearms and Ammunition Technology Division and address all the requirements of the regulations, including (1) monetary value; (2) rarity and/or novelty; and (3) association with a specific historical figure, period, or event. The information provided should be specific and detailed. ATF may request a sample of the firearm sought for C&R classification for its examination.

ATF takes the position that curio or relic firearms must be in their original condition to be classified as a C&R firearm. However, information on ATF’s website indicates that minor changes to firearms, such as the addition of scope mounts, non-original sights, or sling swivels would not affect a firearm’s classification as C&R. ATF has also determined that replacing particular firearms parts with new parts manufactured in the original design would also be acceptable. An example of an acceptable repair would be replacing a cracked M1 Garand stock with a new wooden stock of the same design, while ATF advises that replacing it with a plastic stock would change the rifle’s classification as C&R. In addition, although frames and receivers are included in the definition of “firearm,” ATF takes the position that frames and receivers cannot be classified as C&R firearms.

B. What Is the Significance of a Curio or Relic Classification?

1. Licensed Collectors

The definition of “collector” in 18 U.S.C. § 921(a)(13), combined with other provisions of the GCA, makes it clear that licensed collectors may lawfully acquire firearms classified as curios or relics in interstate commerce. Persons who do not hold a collector’s license are generally prohibited from obtaining firearms (including curios or relics) in interstate commerce from any person other than a Federal firearms licensee. Licensed collectors may obtain curio or relic firearms from other licensees without completing an ATF Form 4473, and the transferring licensee is not required to comply with the background check provisions of the Brady Law, 18 U.S.C. § 922(t). For persons interested in firearms of historical significance, obtaining a collector’s license is of tremendous benefit. It allows the license holder to obtain firearms from other licensed collectors and other licensees without going through a licensee in their state of residence.

It should be noted, however, that a collector’s license conveys no benefits as to firearms that are not C&R. As to non-C&R firearms, a licensed collector is like any other unlicensed individual and must generally go through a Federal firearms licensee in his or her state of residence to lawfully obtain firearms.

Licensed collectors are also cautioned that a collector’s license does not authorize the holder to engage in a firearms business, even if that business is limited to curio or relic firearms. Any person who is devoting time, attention, and labor to engaging in business in curio or relic firearms with the principal objective of livelihood and profit must obtain a dealer’s license to lawfully do so. ATF’s Firearms Curios or Relics List, ATF Publication 5300.1, page 2, provides the following guidance on this topic:

For example, if a collector acquires Curios or Relics for the purpose of sale rather than to enhance a collection, the collector would have to be licensed as a dealer in firearms under the GCA. The sole intent and purpose of the collector’s license is to enable a firearms collector to obtain curio or relic firearms from outside his or her State of residence. (Emphasis in original).

The determining factor for whether a dealer’s license is needed is whether the person is acquiring curio or relic firearms for a personal collection or for resale. Collectors may swap or sell firearms from their collection and do so at a profit. However, the motive must always be to enhance a personal collection, rather than to make money selling firearms. Collectors who are unsure whether their activities may be lawfully conducted with a collector’s license should discuss with qualified counsel whether it would be advisable to obtain a dealer’s license.

2. Importation of C&R Firearms

Import provisions of the GCA generally prohibit the importation of surplus military firearms, firearms subject to the National Firearms Act, and those that are “nonsporting.” 18 U.S.C. § 925(d)(3). However, a provision of the GCA added to the statute in 1984 provides as follows (18 U.S.C. § 925(e)):

Notwithstanding any other provision of this title, the Attorney General shall authorize the importation of, by any licensed importer, the following:

(1) All rifles and shotguns listed as curios or relics by the Attorney General pursuant to section 921(a)(13), and

(2) All handguns, listed as curios or relics by the Attorney General pursuant to section 921(a)(13), provided that such handguns are generally recognized as particularly suitable for or readily adaptable to sporting purposes.

Section 925(e) allows surplus military firearms to be imported by a licensed importer if they are classified as C&R. Handguns must also be “sporting” by meeting ATF’s Factoring Criteria as set forth on ATF Form 4590. This provision of the GCA is very significant, as it allows otherwise non-importable surplus military firearms to be imported if they are 50 years old or are classified as C&R under one of the other regulatory definitions. Surplus military rifles, shotguns, and handguns have been imported by licensed importers under this provision of the statute.

II. Collector’s Items

A. What is a Collector’s Item?

The National Firearms Act (NFA), 26 U.S.C. Chapter 53, imposes registration, transfer, tax, and other requirements on certain specified “firearms.” The term “firearm” is defined to include machine guns, short barrel shotguns, short barrel rifles, silencers, destructive devices, and other concealable weapons. 26 U.S.C. § 5845(a). This provision of the NFA also provides that the term “firearm” shall not include any device (other than a machine gun or destructive device) which, although designed as a weapon, ATF finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector’s item and not likely to be used as a weapon.

Implementing regulations in 27 C.F.R. § 479.25 set forth the process for obtaining a classification of a particular firearm as a collector’s item. The regulation provides that requests for such classification should be submitted in writing in triplicate, to the Director. As with curio or relic classifications, the authority to make collector’s item classifications has been delegated to the Chief, Firearms and Ammunition Technology Division. Accordingly, requests for such classification should be sent to this Division. The regulations require that classification requests be executed under penalties of perjury and contain a complete and accurate description of the device, the name and address of the manufacturer or importer, the purpose of and use for which it is intended, and photographs, diagrams, or drawings of the device. ATF may request a sample of the device for examination.

It should be noted that the statute specifically excludes machine guns and destructive devices from the removal authorization. Removal requests submitted for these two categories of NFA firearms will be returned by ATF without action.

The most important information that must be included in a request for classification as a collector’s item is information on the date of manufacture, value, design, and other characteristics indicating that the firearm is primarily a collector’s item and not likely to be used as a weapon. This information must be very specific, particularly the information about value. Information indicating the firearm is not likely to be used as a weapon must also be specific and compelling.

B. Significance of Classification as a Collector’s Item.

Firearms removed from the NFA as a collector’s item are no longer subject to any provisions of the NFA. This means such firearms are not required to be registered, no advance approval is required for the transfer of the firearms, and none of the other provisions of the NFA apply. Significantly, a firearm removed from the NFA as a collector’s item will not be subject to the stringent import provisions of the NFA. Import provisions of the NFA in 26 U.S.C. § 5844 generally limit importation of NFA firearms to those brought in for the official use of government agencies. Classification as a collector’s item removes this obstacle, and if the firearm is sporting or fits within the other import criteria of the GCA, the firearm may be lawfully imported into the United States. Importation is often one of the primary reasons removal requests are filed
under the NFA.

Because the removal of a firearm from the NFA results in significantly less Federal regulation, ATF carefully and thoroughly considers removal applications. Only specific and compelling information about a particular firearm is likely to result in granting a removal request. There are also certain types of firearms ATF generally denies for removal. These include pistol grip shotgun-type weapons, due to their concealability and configuration similar to sawed-off shotguns, which are commonly used in crime. ATF has also consistently denied applications to remove certain firearms classified as an “any other weapon” because of the narrow category of weapons described in the statutory language. ATF denies such requests on the basis that removal would render the statutory language meaningless.

Even though a firearm is removed as a collector’s item, it will likely still be a “firearm” subject to all provisions of the GCA. This is true even if the weapon is classified as a “curio or relic” firearm under the GCA. Marking requirements, interstate movement, record keeping requirements applicable to Federal firearms licensees, and all other requirements of the GCA would continue to apply.

III. Conclusion

Classifications of firearms as curios or relics and/or collector’s items result in less Federal regulation and may allow otherwise non-importable firearms to lawfully enter the United States. Persons who submit curio or relic or collector’s item classification requests should ensure their submissions are accurate, specific, and complete to avoid delays in obtaining a response from ATF.

(The information in this article is for informational purposes only and is not intended to be construed or used as legal advice.)

About the authors –

Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (www.reevesdola.com). For more than ten years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls.

Teresa Ficaretta is one of the country’s foremost experts on ATF regulations under the Gun Control Act, the National Firearms Act, the Arms Export Control Act and Federal explosives laws. Before joining Reeves & Dola in 2013, Teresa served as legal counsel to ATF for 26 years, followed by two years as Deputy Assistant Director in Enforcement Programs and Services. They can be reached
at (202) 683-4200.

This article first appeared in Small Arms Review V19N7 (September 2015)
and was posted online on July 17, 2015

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