Weapons; Permits Required Pursuant to G.S. 14-409

Subject:

Weapons; Permits Required Pursuant to G.S. 14-409.

Requested By:

Larry J. McGlothlin Attorney for Cumberland County Sheriff Department

Questions:

1. What standards should the sheriff of a county apply in determining whether a permit should be issued pursuant to G.S. 14-409 when the application is for a permit for the manufacturer’s use or possession of a machine gun or sub-machine gun for scientific or experimental purposes?

2. If a sheriff is not satisfied that the applicant for a permit under G.S. 14-409 possesses good moral character or that it is in the best interest of the public at large for a permit for a machine gun or submachine gun to be issued, must the sheriff issue such permit?

3. If a sheriff refused to issue a permit under G.S. 14-409 and the organization or person possessing such weapon under federal laws and registered with the federal agency brings such machine gun or sub-machine gun in the county of the sheriff, is such possession in violation of

G.S. 14-288.8 and 14-409?

Conclusions:

1. The sheriff should satisfy himself that the applicant for the permit and the need for such weapon as set forth in the application fall clearly within the purview of the statute, also that any regulation established by ordinance pursuant to G.S. 153A-129 or G.S. 160A-189 will be complied with.

2. No, nor should such permit issue until the sheriff is satisfied that the provisions of all applicable statutes and rules and regulations are met.

3. Federal law does not speak to State permits or local ordinances relative to purchase, possession and display of weapons, therefore, there would be no conflict and state laws and local ordinances not in conflict would prevail. The sale, possession or display of a weapon in derogation of the statute would be a violation.

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 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 enlarge knowledge or to facilitate the creation, development, or manufacture of weapons of mass death and destruction intended for 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 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 or 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. 242 (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, git, disposition, use or possession of semi-automatic rifles or shotguns regardless of magazine or clip capacity.

Section 927 of 18 USC concerns the effect of federal firearms laws on State law, and provides:

"No, provision of this Chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provisions and the law of the state so that the two cannot be reconciled or consistently stand together."

It is academic that in the event of a conflict between federal firearms laws and State firearms laws on the same subject matter, the federal laws would preempt the State laws. However, when it comes to State and local permits and laws, there is no conflict as the current federal laws do not address this subject matter.

A federal firearms license is not a substitute for any requisite State license or permit.

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.

Also in our opinion, it would be appropriate for the county commissioners pursuant to G.S. 153A-121 and G.S. 153A-129 by ordinance to establish rules and regulations to assist the sheriff in the carrying out of his duties. Such ordinances should, however, due to the provisions of G.S. 153A-122 and limitations appearing in G.S. 160A-174 be coordinating with municipal governments which have similar ordinance making power pursuant to G.S. 160A-174 and G.S. 160A-189.

Though the sheriff should never act in an arbitrary or capricious manner when carrying out the duties of his office, due to the inherent danger surrounding machine guns and sub-machine guns, he should take every precaution to assure himself that not only the requisite of the statutes and regulations are met but also that the issuance of such permit will not be to the detriment of the populace. In the issuing of gun permits, he is exercising a judgment factor, therefore, the issuance thereof is in his discretion.

Rufus L. Edmisten Attorney General

William W. Melvin Deputy Attorney General