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09.22.2017 How SilencerCo Strategically Uses Two Federal Laws in Innovative Design of the Maxim 50 By: Camden R. Webb; Charles E. "Chuck" James, Jr. & Marc J. Pollak

On September 19th, Utah based SilencerCo released the Maxim 50, a suppressed muzzleloader that is not subject to the $200 tax and long wait times typically associated with a suppressor or suppressed firearm.  How? 

The Gun Control Act of 1968 (“GCA”) is a federal law that regulates the firearms industry and firearms owners.  See 18 U.S.C. § 921, et seq.  In creating the Maxim 50, SilencerCo relies on two seemingly nondescript (and oft overlooked) provisions of the GCA.  First, the GCA provides that muzzleloaders, such as the Maxim 50, are not considered “firearms,” rather, they are classified separately as “antique firearms.”  18 U.S.C. § 921(a)(16).  Second, the GCA defines a “firearm silencer” as “any device for silencing, muffling, or diminishing the report of a portable firearm . . ..” 18 U.S.C. § 921(24).  Because the Maxim 50 is an “antique firearm” (and not a “firearm”), a silencer that is only usable on the Maxim 50, and not on a traditional firearm, is not actually considered a “firearm silencer.” See id.; 18 U.S.C. § 921(3) (for purposes of the GCA, a traditional firearm silencer is considered a firearm).  In the Maxim 50, SilencerCo maneuvered around this provision by permanently affixing the Maxim 50’s silencer to the muzzleloader’s barrel.

Identically, the National Firearms Act (“NFA”) uses the GCA’s definition of the term “silencer.” See 26 U.S.C. § 5845(a).  As such, the Maxim 50 and its permanently attached silencer is not considered a firearm or a suppressor under the NFA.  Individuals looking for a hearing safe gun, whether for hunting, collecting, or recreational shooting, can now purchase one without having to go through the ATF’s burdensome registration process, which requires certain law enforcement checks, fingerprints, law enforcement notifications, a multi-month waiting period, and a $200 tax stamp paid directly to Uncle Sam.

Further, felons and other prohibited persons are barred from possessing or receiving firearms or ammunition under the GCA. 18 U.S.C. § 922(g).  However, the prohibition does NOT extend to antique firearms.  By definition, an antique firearm is either one manufactured in or before 1898 OR any replica of an antique firearm.  Since a muzzle loading firearm is designed to use black powder or a black powder substitute, which means they cannot fire “fixed ammunition,” they are deemed an antique firearm unless certain specific design features are present.  Some groups, such as the ACLU, have long supported amending the GCA to create a process for non-violent felons to restore their right to own and carry firearms.  The Maxim 50 (as well as other modern muzzleloaders) presents a potential alternative.

While SilencerCo originally announced that the Maxim 50 would be available in every state, New Jersey, Massachusetts, and California have already sent legal challenges directly to SilencerCo, and some uncertainly in the market will certainly follow.  While it is not yet entirely clear why these states believe they can block the sale of the Maxim 50, litigation is likely to ensue.

Ultimately, the Maxim 50 is an innovative product, and its creation further shows that the firearms industry may be able to rely on creativity and ingenuity during the current post-election sales slump.  Indeed, things are starting to look better and better for the industry each day.  Also on September 19th, “[s]hares of Sturm Ruger & Company (RGR.N) and Smith & Wesson-owner American Outdoor Brands (AOBC.O) surged as much as 18 percent on Tuesday after Reuters reported a potential relaxing of oversight in foreign sales by the Trump administration.”  And, just a few weeks before that, Rep. Jeff Duncan introduced the Sportsmen’s Heritage and Reactional Enhancement (“SHARE”) Act, which seeks to “enhance access to public lands and simplify the purchasing process for firearms suppressors.”  On September 12, 2017, the SHARE Act was passed by the House Committee on Natural Resources by a vote of 22-12 and now awaits floor action in the U.S. House.