Is a federally licensed firearms dealer, manufacturer, or importer who repairs guns considered a 'federally licensed gunsmith' exempt from Washington's universal background check rule when receiving and returning a customer's firearm?

Plain-English summary

Washington voters adopted Initiative 594 in 2014, which generally requires a background check for any sale or transfer of a firearm in the state (RCW 9.41.113(1)). I-594 contains a list of exemptions, one of which (RCW 9.41.113(4)(f)) covers "[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." But the statute does not define "federally licensed gunsmith." Lewis County Prosecuting Attorney Jonathan Meyer asked the AG how to identify one.

The AG's answer takes the phrase "federally licensed gunsmith" as a term of art that points to federal law, then walks through the federal regime. Federal firearms licensing is governed by the Gun Control Act of 1968 (18 U.S.C. §§ 921-931). The GCA defines "dealer" to include "any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms" (18 U.S.C. § 921(a)(11)(B)). Both ATF regulations (27 C.F.R. § 478.11) and ATF Rulings 2010-10 and 2015-1 expressly identify a person who fits that description as a "gunsmith." So the answer to question 1 is that a person licensed as a dealer under § 923(a) and engaged in the business of repairing or modifying firearms is a federally licensed gunsmith for purposes of the I-594 exemption.

For manufacturers and importers, the analysis takes one extra step. The GCA distinguishes the three license types (dealer, manufacturer, importer) and generally requires a separate license for each premise and each business (27 C.F.R. § 478.41(b)). But that same regulation lets a licensed manufacturer or importer act as a dealer at the licensed premises, in the same type of firearms they manufacture or import, without obtaining a separate dealer license. So a licensed manufacturer or importer engaged in the business of repairing or modifying the same type of firearms they manufacture or import, at the place where they are licensed to manufacture or import, is acting as a dealer and therefore as a federally licensed gunsmith. Outside that scope (different type of firearm, or off the licensed premises), they would need a separate dealer license to claim the gunsmith exemption.

The bottom line for I-594 compliance: when a customer drops off a firearm at the gunsmith's shop for repair and the same gunsmith returns it after the work is done, no background check is required. When the firearm is being transferred to or from someone other than its owner (or to the owner via a different intermediary), the exemption does not apply, and the ordinary background-check requirement governs the transfer.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What does "federally licensed gunsmith" mean if the term doesn't appear in federal law?
A: ATF treats "gunsmith" as a colloquial label for the subset of dealer licensees engaged in the business of repairing or modifying firearms, as the dealer definition itself contemplates (18 U.S.C. § 921(a)(11)(B)). ATF Ruling 2015-1 and ATF Ruling 2010-10 both use the term "gunsmith" this way, and 27 C.F.R. § 478.11 defines "engaged in the business" specifically for a "gunsmith." The AG read the I-594 phrase to incorporate this term-of-art definition.

Q: Does the gunsmith exemption cover transfers to and from the firearm's owner?
A: Yes. RCW 9.41.113(4)(f) covers the gunsmith's receipt of the firearm "solely for the purposes of service or repair" and the return "of the firearm to its owner by the federally licensed gunsmith." If the gunsmith returns the firearm to a person other than the owner, the exemption does not apply and the regular background check rule governs.

Q: What if a gun shop holds an FFL as a dealer (Type 01) but does no repair work?
A: Then they are a dealer under the GCA generally, but not a "gunsmith" under the regulatory and ruling definitions, which look to whether the licensee is "engaged in the business" of repair or modification. The I-594 exemption covers gunsmith activity, not dealer activity in general.

Q: Can a firearms manufacturer claim the gunsmith exemption for any repair work?
A: Only within a specific scope. Under 27 C.F.R. § 478.41(b), the manufacturer's license operates as a dealer license at the licensed premises and for the same type of firearms manufactured. So a manufacturer of bolt-action rifles can repair bolt-action rifles at the manufacturing premises without a separate dealer license, and the gunsmith exemption applies. If they want to repair handguns, or to do repair work at a different location, they need a separate Type 01 (dealer) FFL.

Q: Same question for importers?
A: Same answer. An importer's license functions as a dealer license at the licensed premises for the same type of firearms imported. Repair work outside that scope needs a Type 01 FFL.

Q: Are pawnbrokers covered?
A: Pawnbrokers are a separate category of "dealer" under 18 U.S.C. § 921(a)(11)(C). The gunsmith exemption depends on engagement in repair or modification, not on the dealer subcategory, so a pawnbroker who is also engaged in the business of repairing firearms could qualify. Footnote 5 of the opinion notes that ATF's Type 01 (dealer) and Type 02 (pawnbroker) FFLs both authorize gunsmithing activity.

Q: How much weight does ATF's interpretation get?
A: Federal courts treat ATF rulings as agency interpretations that may or may not be adopted (United States v. Evans, 712 F. Supp. 1435 (D. Mont. 1989)). The AG used the ATF rulings as the primary source for what "gunsmith" means in federal practice, treating the term as a term of art under State v. Veliz, 176 Wn.2d 849 (2013) and State v. Gray, 5 Wn. App. 2d 625 (2018).

Background and statutory framework

I-594, codified primarily at RCW 9.41.113, requires background checks for "[a]ll 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... unless specifically exempted by state or federal law." Subsection (4) lists exemptions, including (f) for the receipt and return by a federally licensed gunsmith of a firearm for service or repair. RCW 9.41.010(6) and (16) define "dealer" and "licensed dealer" by reference to 18 U.S.C. § 923(a), confirming the legislative intent to look to federal law for the meaning of these terms.

The federal Gun Control Act of 1968 (18 U.S.C. §§ 921-931) imposes a regulatory licensing scheme on commercial firearms activity. 18 U.S.C. § 923(a) requires a federal firearms license to engage in the business of importing, manufacturing, or dealing in firearms. 18 U.S.C. § 921(a)(11) defines "dealer" to include any person engaged in the business of (A) selling firearms at wholesale or retail, (B) repairing firearms or making or fitting special barrels, stocks, or trigger mechanisms, or (C) operating a pawnshop. 18 U.S.C. § 921(a)(9) defines "importer" and § 921(a)(10) defines "manufacturer."

Congress delegated administration of the GCA to the Attorney General (18 U.S.C. § 926(a)), who in turn delegated to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (28 C.F.R. § 0.130(a)(1)). ATF's implementing regulations and rulings interpret the GCA. 27 C.F.R. § 478.11 defines "engaged in the business" as applied to a "gunsmith" as devoting "time, attention, and labor" to repair or modification "as a regular course of trade or business with the principal objective of livelihood and profit." Two ATF rulings, ATF Ruling 2015-1 and ATF Ruling 2010-10, expressly identify a § 921(a)(11)(B) dealer engaged in repair or modification as a "gunsmith."

The cross-licensing question (manufacturer or importer acting as a dealer) turns on 27 C.F.R. § 478.41(b): a federal license generally is required for each business and each premises, but a manufacturer or importer can engage in business as a dealer at the licensed premises in the same type of firearms manufactured or imported without a separate dealer license. The opinion reads this regulation to mean that a licensed manufacturer or importer can act as a federally licensed gunsmith within that same scope.

The interpretive method is standard for an initiative: read the language to give effect to the "collective intent" of the voters (Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183 (2000)). When an undefined term is a term of art, give it the technical definition (Veliz, 176 Wn.2d 849; State v. Gray, 5 Wn. App. 2d 625). The phrase "federally licensed" in front of "gunsmith" signals the voters' intent to point to the federal regime for definition.

Citations and references

Federal statutes and regulations:
- 18 U.S.C. §§ 921-931 (Gun Control Act); §§ 921(a)(9), (10), (11)(A)-(C), (21), (21)(D); §§ 922; 923(a)(1)-(3), (b); 926(a)
- 27 C.F.R. §§ 478.1-478.171 (ATF regulations); §§ 478.11; 478.41(b)
- 28 C.F.R. § 0.130(a)(1) (delegation to ATF)

Washington statutes:
- RCW 9.41.010(6), (16) (dealer and licensed dealer by reference to federal law)
- RCW 9.41.113(1), (4), (4)(f) (background check requirement, exemptions, gunsmith exemption)

ATF rulings:
- ATF Ruling 2015-1 (Jan. 2, 2015)
- ATF Ruling 2010-10 (Dec. 27, 2010)

Cases:
- Guedes v. ATF, 920 F.3d 1 (D.C. Cir. 2019)
- United States v. King, 735 F.3d 1098 (9th Cir. 2013)
- State v. Carter, 161 Wn. App. 532 (2011)
- Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183 (2000)
- State v. Veliz, 176 Wn.2d 849 (2013)
- State v. Gray, 5 Wn. App. 2d 625 (2018)
- United States v. Evans, 712 F. Supp. 1435 (D. Mont. 1989)

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/meaning-federally-licensed-gunsmith-background-check-statute

Original opinion text

Attorney General Bob Ferguson

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

The Honorable Jonathan L. Meyer

Lewis County Prosecuting Attorney

345 W Main Street 2nd Floor

Chehalis, WA 98532

Cite As:

AGO 2020 No. 3

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).

[original page 2]

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).

[original page 3]

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

[original page 4]

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-

[original page 5]

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.

[original page 6]

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

wro

[1] 18 U.S.C. § 923(b) requires “collectors” to obtain a permit, but Congress apparently did not consider collectors as engaging in commercial activity. See 18 U.S.C. § 921(a)(21) (defining “engaged in the business”).

[2] Courts treat such rulings as agency interpretations of federal statutes which the courts may or may not adopt when interpreting a statute. United States v. Evans, 712 F. Supp. 1435, 1443-44 (D. Mont. 1989).

[3] RCW 9.41.010(6) defines the term “dealer” for purposes of state law, but does so by reference to 18 U.S.C. § 923(a).

[4] RCW 9.41.010(16) defines the term “licensed dealer” for purposes of state law, but does so by reference to 18 U.S.C. § 923(a).

[5] Type 01 and Type 02 federal firearm licenses, the ones required for dealers and pawnbrokers, both allow a person to perform gunsmithing. U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives, Application for Federal Firearms License, at 1 (Apr. 2019), https://www.atf.gov/firearms/docs/form/form-7-7-cr-application-federal-… (last visited May 5, 2020).