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Weapons; Automatic Weapons; Machine Guns

December 31, 1981

Subject:

Weapons; Automatic Weapons; Machine Guns.

Requested By:

Mr. L. G. Albright, Detective Guilford County Sheriff’s Office

Questions:

(1)
Is a North Carolina dealer in violation of G.S. 14-288.8(c)(3) if he imports reproductions of an Ingram M-10 which is fully automatic and equipped with a 32 round magazine or clip?
(2)
Can the gun dealer sell the M-10 without a magazine or clip since it is the 32 round magazine or clip that brings the M-10 within the purview of G.S. 14-288.8?
(3)
Could an individual owning a semi-automatic weapon with a 32 round magazine or clip plug the magazine or clip to reduce its capacity to 31 rounds and in so doing remove it from the restrictions of G.S. 14-288.8?

Conclusions:

(1) A properly licensed gun dealer would not be in violation of G.S. 14-288.8 by importing reproductions of the Ingram M-10 provided the provisions of G.S. 14-409 had been complied with. G.S. 14-288.8 and 14-409, for proper consideration of the question, must be construed in

pari materia.

(2)
If the weapon is fully automatic; i.e., requiring one pull of the trigger for continuous firing or can by the use of a switch or lever be converted to a fully automatic mode, it is a machine gun or sub-machine gun and would fall within the permit requirements of G.S. 14-409.
(3)
The owner of a semi-automatic weapon may reduce the magazine or clip capacity if over 31 rounds and bring the weapon within the exceptions set forth in G.S. 14-409. However, if the weapon is a machine gun or sub-machine gun, the reduction in magazine or clip capacity would not remove it from the permit requirements of this section of statute and certainly not the requirements for transfer, etc. set forth in the "Federal Gun Control Act."

G.S. 14-288.8 reads in relevant part:

"§ 14-288.8. Manufacture, assembly, possession storage, transportation, sale, purchase, delivery, or acquisition of weapon of mass death and destruction; exceptions.

(a)
Except as otherwise provided in this section, it is unlawful for any person to manufacture, assemble, possess, store, transport, sell, offer to sell, purchase, offer to purchase, deliver or give to another, or acquire any weapon of mass death and destruction.
(b)
This section does not apply to:
(1)
Persons exempted from the provisions of G.S. 14-269 with respect to any activities lawfully engaged in while carrying out their duties.
(2)
Importers, manufacturers, dealers, and collectors of firearms, ammunition, or destructive devices validly licensed under the laws of the United States or the State of North Carolina, while lawfully engaged in activities authorized under their licenses.
(3)
Persons under contract with the United States, the State of North Carolina, or any agency of either government, with respect to any agency of either government, with respect to any activities lawfully engaged in under their contracts.
(4)
Inventors, designers, ordinance consultants and researchers, chemists, physicists, and other persons lawfully engaged in pursuits designed to other persons lawfully engaged in pursuits designed to enlarge knowledge or to facilitate the creation, development, or manufacture of weapons of mass death and destruction intended to use in a manner consistent with the laws of the United States and the State of North Carolina.
(c)
The term "weapon of mass death and destruction" includes:
(3)
Any semiautomatic firearm capable of firing 31 rounds or more without reloading, any firearm capable of fully automatic fire, any shotgun with a barrel of less than 18 inches in length of an overall length of less than 18 inches in length or an overall length of less than 26 inches; or
(4)
Any combination of parts either designed or intended for use in converting any device into any weapon described above and from which a weapon of mass death and destruction may readily be assembled;
(d)
Any person who violates any provision of this section is guilty of a misdemeanor punishable as provided in G.S. 14-3(a)."

G.S. 14-409 reads:

"§ 14-409. Machine guns and other like weapons.

It shall be unlawful for any person, firm or corporation to manufacture, sell, give away, dispose of use or possess machine guns, submachine guns, or other like weapons: Provided, however, that this section shall not apply to the following:

Banks, merchants, and recognized business establishments for use in their respective places of business, who shall first apply to and receive from the sheriff of the county in which said business is located, a permit to possess the said weapons for the purpose of defending the said business; officers and soldiers of the United States Army, when in discharge of their official duties, officers and soldiers of the militia and the State guard when called into actual service, officers of the State, or of any county, city or town, charged with the execution of the laws of the State, when acting in the discharge of their official duties; the manufacture, use or possession of such weapons for scientific or experimental purposes when such manufacture, use of possession is lawful under federal laws and the weapon is registered with a federal agency, and when a permit to manufacture, use or possess the weapon is issued by the sheriff of the county in which the weapon is located. Provided, further, that automatic shotguns and pistols or other automatic weapons that shoot less than 31 shots shall not be construed to be or mean a machine gun or submachine gun under this section; and that any bona fide resident of this State who now owns a machine gun used in former wars, as a relic or souvenir, may retain and keep same as his or her property without violating the provisions of this section upon his reporting said ownership to the sheriff of the county in which said person lives.

Any person violating any of the provisions of this section shall be guilty of a misdemeanor and shall be fined not less than five hundred dollars ($500.00), or imprisoned for not less than six months, or both, in the discretion of the court."

We are fully cognizant of the wording of State v. Lee, 277 N.C. 2442 (1970); however, for the purpose of and speaking to the requirement of permits for the sale, gift, disposition, use or possession of a machine gun or sub-machine gun, emphasis must be placed on the capability of fully automatic operation with a single pull of the trigger. This position is bolstered by the requirements of the Federal Gun Control Act when the transfer of a machine gun or sub-machine gun is involved and also the transfer tax applicable thereto. A machine gun is defined in such act as "Any weapon which shoots is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. . . ." Gun Control Act of 1968, Subchapter B, Part 1, Sec. 5845(b). No permit is required under the Federal Gun Control Act for the sale, gift, disposition, use or possession of semi-automatic rifles or shotguns regardless of magazine or clip capacity.

In our opinion the requirement that a permit be issued by the sheriff of the county in which a machine gun or sub-machine gun is to be delivered is a reasonable and necessary exercise of the State’s police power for the protection of its citizens, the machine gun and sub-machine gun being a weapon designed for mass death and destruction. Further, since a machine gun or submachine gun is not a weapon designed for the general use of the populace, the control placed thereon does not violate the citizen’s right to bear arms as he is free to purchase without permit a long gun such as a rifle or shotgun.

Before the sheriff issues a permit pursuant to G.S. 14-409, he should satisfy himself that the applicant for the permit and the need set forth for such weapon fall clearly within the purview of the statute. The issuance of the permit lies within the discretion of the sheriff.

Rufus L. Edmisten Attorney General

William W. Melvin Deputy Attorney General