ATF to Focus on Gun Trust “Loophole”?

It had to happen eventually. The dedicated disarmament advocates at the New York Times have finally noticed the convenience that gun trusts provide. Wanna buy a suppressor? Okay, but if you hand it to your kid to hold while loading up your range bag, you’ve technically broken the law. And buying NFA items or passing your heaters on once you’ve assumed room temperature is a bigger hassle without a trust in place. Not to mention that getting a sign-off from your CLEO can be impossible, depending on where you live. So what’s the problem with gun owners setting up a trust to own their gets? Why, a distinct lack of government control and oversight, of course! What really gives the NYT’s editors and the ATF a case of the willies is the fact that members of a trust don’t have to undergo NICS checks each time a new item is purchased. But if the article can be believed, the ATF has an ap for that . . .

Mike Campbell, a spokesman for the Bureau of Alcohol, Tobacco, Firearms and Explosives, which enforces firearms regulations, said that applications filed with the A.T.F. for transfers of restricted firearms to trusts or corporations have more than doubled in the last four years, to more than 39,000 in 2012 from about 15,000 in 2008. He said the increase was largely attributable to the growth in the number of trusts.

Mr. Campbell confirmed that under current regulations, background checks were not required for the buying of restricted firearms through trusts. The agency, he added, was aware of the loophole and was reviewing changes to close it.

Changes. He probably has something like this in mind. Which — hold on, this foil hat doesn’t fit quite right — is probably just a first step on the way to NICS checks all around for trust members with each purchase.

Betcha can’t guess who else is dreadfully concerned about the whole gun trust process. Hold onto your hats…police chiefs!

Jim Bueermann, the president of the Police Foundation, a research organization in Washington, said, “My guess is that the majority of police chiefs would agree that there is a reason why, as a general rule, people are prohibited from owning silencers, machine guns and what we would call sawed-off rifles or shotguns.”

Mr. Bueermann said that he was especially concerned about the loophole in A.T.F. regulations that made it possible to buy restricted firearms without a background check and that he thought most Americans would find this shocking.  

According to the Times article, the number of gun trusts has almost doubled to about 40,000 since 2008. If you’re thinking about one, now may be the time.

[h/t Jonah F.]

comments

  1. avatar ST says:

    Great. As if the current paperwork backlog wasn’t long enough.

  2. avatar Anmut says:

    I have gone back and forth about putting my name down on paperwork for items that get liberal panties in knot. With the state of politics and my tin-foil hat on tight, not to mention the cost and wait time, I have decided against it for now.

    1. avatar In Memphis says:

      I was seriously considering a suppressor but it just dosnt seem worth it now. I have the patience to wait (not that any of is should have to) but living in a non-registry state, Im extremley paranoid about the paper trail Ill leave for an NFA item. But as you said, “for now.”

      1. avatar Thomas Paine says:

        and you guys dont have CCW licenses? that’s usually the ‘registry’ that nobody thinks twice about.

        1. avatar Anmut says:

          My CCL only verifies, in WI, that I have passed hunter’s safety when I was 13 and that I put up the $50 for the neat little non-photo ID plastic card. No serial numbers attached to firearms with that.

        2. avatar In Memphis says:

          My carry permit shows that I am licensed to carry a handgun. It does not mean I own any guns and I am not even required to have one or show it for any purchases, including handguns. Having a carry permit but no guns makes a little sense. Having a suppressor but no gun, kind of pointless. Also Im not (currently) required to keep any kind of proof of sale if I sell my guns.

  3. avatar Daniel Silverman says:

    For some reason I can not see your local gang banger going and opening a gun trust. I mean really I think they are a great idea, just like a living trust. It is protection, and peace of mind. Of course the government wants to mess that up..

    1. avatar In Memphis says:

      You mean you have never seen a homie from the MS-13 walking down the street with a .50 rifle equipped with a “silencer” and missle launcher!? Wow, I wish my neighborhood was that safe

      1. avatar Brian says:

        He might have seen it…just that that homie probably hasn’t used a gun trust to ‘bypass’ a background check.

        Now potentially a so called ‘mafia’ type might go though the legal paperwork as they do for all the shell companies and things to hide the cash flow behind. But I think 99% or more gun crimes are committed by some gang banger criminal type. And probably 80% of the gun killings(accounting for jealous spouses and ND’s)

    2. avatar Jarhead1982 says:

      Happened in Houston, illegal alien sometime between 2010-end of
      2012 used a fake id, opened trust, bought NFA items that started being sold uncontrolled to the streets, dang, who would of thought the BATF couldnt catch anyone using a fake id eh!

      But thats the law abiding gun owners fault based on anti gun freaks beliefs.

    3. avatar anonymous says:

      > illegal alien

      While America is allowing illegal aliens to become legal citizens, it is turning law abiding citizens into criminals.

      Brilliant!

  4. avatar AlphaGeek says:

    Whatever. I don’t own NFA items, and I’m not bloody likely to have NFA items anytime soon — but I’m still planning to create a trust for my “scary” guns, like the 5.45×39 AR rifle I’m building. (Just picked up my lowers AND scored a Spikes 5.45×39 upper today! W00t!)

    I see it as reasonable insurance against efforts to prevent inheritance or intra-family transfers, especially here in CA. My offspring are going to go into the world properly equipped even if it requires me to do silly crap like create an “NFA” trust to own non-NFA items.

    1. avatar Ben says:

      I think this is a wise approach. The law is still developing in this area, but I am definitely seeing more gun owners interested in using trusts for planning with non-regulated firearms collections. If you are in Alabama I would be happy to talk to you about this, and if not I can certainly refer you to a lawyer in your area who can.

  5. avatar NS says:

    gang bangers hate the noisy affair of shooting someone without a suppressor, so making them more difficult to obtain will surely make them thing twice

    1. avatar Sakiri says:

      Suppressors don’t even really silence the damned things very well anyhow.

      1. avatar Anmut says:

        That’s not what the movies have taught me. Are you saying everything I’ve learned from Hollywood is wrong? My whole world is destroyed!

    2. avatar elnonio says:

      NS:
      I don’t know that the first premise is true (gang bangers hate the noisy affair of shooting someone) seeing their penchant for all things flashy and bling, and general lack of discretion. There is little evidence that they use silencers.

      On the basis of that, what again is the purpose of restricting silencers?

      Back when we lived in France, my father had a silencer on our 22lr rifle, and it allowed us to plink in our back yard without disturbing people. Now that I have a 556 silencer, you’d be amazed how much rapport it reduces (though of course, it doesn’t turn my rifle into a Hollywood-style no-noise-signature weapon.) I am willing to bet my shirt that the neighbors that live catty-corner to my range would love it if we all shot with silencers.

      Lastly. while you all might not see it, the proposed change to the rules actually does have a compromise section in it: (4) eliminate the requirement for a certification signed by the CLEO. That is the biggest hurdle for most people: it’s not the ATF, it’s the CLEOs that refuse to sign off because they forget that their signature is not supposed to be authorization to purchase. (which, by the way, gets us back to the argument of how many LEOs are pro-2A.)

  6. avatar anonymous says:

    So should every officer undergo a background check every time their department acquires an NFA item?

    1. avatar Mark N. says:

      It wouldn’t make any difference; their disqualifying crimes, like domestic abuse, are usually swept under the rug, leaving them squeaky clean

    2. avatar WA_2A says:

      One set of rules for us, one set of rules for them.

      We’re all 2nd-class citizens, remember?

  7. avatar Thomas Paine says:

    LOOPHOLE:
    a slave escapes the plantation. He found a loophole. should we close all the loopholes so slaves can’t escape? No, we should OPEN the loopholes to allow more to escape.

    Same with tax loopholes and ‘gun’ loopholes.
    If you want freedom, you want loopholes for ALL.
    Loopholes aren’t ‘bad’ and need to be ‘closed’. They should be opened up.

    1. avatar Mark N. says:

      Don’t let Justice Tanney hear you say that.

  8. avatar Lance says:

    So Obama who wants to grow jobs will ban all PMCs and Security companies to ban guns. What stupid fascist pigs liberals are.

  9. avatar Gene says:

    Wonderful. Finding solutions to nonproblems. As if the gov’t doesn’t have anything else more important to worry about like working on budgets, the national credit/bond downgrade, “wars”, illegal aliens, etc, &ct, et cetera….

    Maybe the ATF should spend less time pondering “sporting purpose”, trusts, and programs like “fast and furious” and more time gettimg through that backlog of paperwork.

  10. avatar Dshim83 says:

    Just to check whether I’m reading this correctly: ” (4) eliminate the requirement for a certification signed by the CLEO. ”

    So this “proposed” change you linked would mean that each ‘responsible person’ of a trust would have to submit photographs and fingerprints, require that applications for transfers or manufacture of firearms are forwarded to the local CLEO – but would eliminate the requirement for the CLEO to certify for all form 4s?

    Interesting.

    1. avatar Matt in FL says:

      Your interpretation is correct. Background checks for all trustees, and applications would be forwarded to local CLEO for notificiation, but not for approval.

      1. avatar Dshim83 says:

        Background checks for all transfers, or just when adding a “responsible person” to a trust?

        1. avatar Matt in FL says:

          I don’t know. And I’m not sure what you mean by “all transfers.” But to answer the question I think you’re asking, we likely won’t know for sure until (unless) the new regulation is enacted.

          I am not an attorney, but if I was to guess, my guess would be that the trustees of all new trusts would have to be backgrounded, but that existing trusts would be grandfathered, unless you bought something new and had to resubmit the trust to NFA branch, at which time the new regulations would likely apply to all existing trustees.

          As far as adding trustees but not new NFA items, I have no idea. The idea there would be to have the trust written with you alone as trustee, and then add someone(s) else after you got the stamp. I’m certain there would be language in the regulation to deal with that. Again, like Obamacare, “you have to pass it to find out what’s in it,” I guess.

          I don’t know exactly how the process works. I know that it’s in the “Proposed Rule Stage,” and according to this page, that’s the second of four stages. I don’t know how exactly to get a copy of the proposed rule language, or if that’s even possible until the start of the Comment Stage, which is third of four, when it’s open to public comment for a period of time before being enacted.

          Edit to add: For the record, this proposed rule has been in the Proposed stage since mid-2011, if not earlier. I’m not saying that concern about it is crying wolf, but at the same time, I wouldn’t expect movement on it next week.

  11. avatar beanfield says:

    “Mr. Campbell confirmed that under current regulations, background checks were not required for the buying of restricted firearms through trusts.”

    This sounds inaccurate. I pick up my first approved NFA item on a trust tomorrow. As far as I understand, I will still be required to complete a 4473 w/ NICS check.

  12. avatar Matt in FL says:

    “Jim Bueermann, the president of the Police Foundation, a research organization in Washington, said, “My guess is that the majority of police chiefs would agree that there is a reason why, as a general rule, people are prohibited from owning silencers, machine guns and what we would call sawed-off rifles or shotguns.”

    When I read this my immediate thought was, “Isn’t it a good thing that political appointees aren’t allowed to rule by fiat, since ‘the majority of police chiefs would agree’ with whatever the hell the mayor or city council told them to agree with.”

  13. avatar BW says:

    “…He probably has something like this in mind… ”

    The last time I saw an article on this subject they simply wanted the NFA items to be registered to individuals. Yes, they wanted to fingerprint and run background checks on each person in the trust. But they also wanted to remove the CLEO signature requirement from individuals submitting transfer paperwork, which was the initial reason many people were forced to use trusts.

    I am aware there are a number of other benefits from using a trust, perhaps some of which might be reason for the changes.

    I hope they follow through on the positive changes to facilitating registration of NFA items, both the removal of CLEO signoffs and the online submittal system I had seen discussed.

  14. avatar Mark N. says:

    Why is it that police chiefs are so anti-gun but the rank and file are about as pro and con as the rest of the population? Here is Ca., the “police chiefs” are always in favor of more gun control, while the sheriffs, especially in rural counties, are generaly against it.

    1. avatar Matt in FL says:

      Because police chiefs are political appointees, and no matter their private opinions, if they disagree publicly with their political masters (mayors and city councils) they will soon find themselves out of a job. Sheriffs, on the other hand, are elected by the citizens of their jurisdiction, and generally reflect the opinions of the populace with great accuracy.

      There’s a reason that when you see law enforcement standing behind a politician making a gun grab, it’s almost always chiefs and city cops, not sheriffs and deputies.

  15. avatar Jim says:

    Echoing what Matt said, my guess is that one loophole that they couldn’t close would be the ability to amend the trust membership after buying the NFA item. Trusts are legal constructs under state and federal law and I suspect that ATF regulatory power would only extend so far. I seriously doubt that they could insert language making their approval required to make changes in trustees.

    Futher, there is also nothing stopping people from setting up corporations to do the same thing. Corporations are a bit more of a hassle and you have to reregister them every year, but they could be used.

  16. avatar Charles K says:

    The NYT failed to mention that machine gun prices start around $3K, and more like $16-20K if you want an evil scary black rifle. Most Silencers are in the realm of $300-2K. Then there’s about 9 months of waiting and $200 per item. I’m confident that a criminal would go through that kind of effort… Well I guess the nutter in Cali allegedly did (illegally, however). Speaking of which, is there any evidence that he used an NFA item during the lunacy? I’m going with no because it would have surely made it to the NYT.

    1. avatar Gyufygy says:

      From what I know, he legally acquired the NFA items through his work as an LEO, but kept them when he was fired. Lose the badge, lose the toys without having to jump through the hoops everyone else has to go through.

  17. avatar JWhite says:

    If you get caught abusing the NFA Trust and ATF guidelines for this though… YOu’re screwed.

  18. avatar ColoradoGunOwner says:

    I have a turst setup and the main reason was so that I could pass on my NFA items to my kids. Just because i have a trust doesn’t mean that I can just pass them on to anyone. The person that the items are going to still needs to be able to own them legally. So if my kid has done something that would stop him from owning a firearm then she wouldn’t be able to own the NFA items.
    So I asked my NFA lawyer about this and here is his response on it:

    It’s darned near impossible to predict how something like this would come out if it makes it to an actual law/regulation. At this point, it’s an abstract which really doesn’t contain enough information to know exactly how it would ultimately play out. The direct answer to your question is that it is irrelevant to your future purchases until and unless it actually be comes law.

    As one example, depending on the yet-to-be-created definition of “responsible person,” it COULD require each and every person named in your trust to pass a background check. It COULD cost you $200 for each person you mention in your Trust. On the other hand, it MIGHT allow you to name ONE responsible person and then everyone else having to do with the Trust would be spared thebackground check requirement.

    If the worst happens, if the proposed rule becomes law it would:

    1. Require background checks on each *current/acting* Trustee of your Trust.
    2. Require the current/acting Trustee to submit photographs and fingerprints [presumably to the ATF]
    3. Would send a copy of the Trust’s Form 1 or Form 4 to the Chief Law Enforcement Officer of your city/county. [This would effectively create an NFA registry held by the CLEO]
    4. Would NOT require the CLEO to sign off on the Form 1 or Form 4 application.

    The registry part would probably run afoul of at least a couple laws… federal and state.

    I did a quick internet search and it would appear that the basic premise contained in this abstract has been kicked around for several years with no action. The general idea is that there are at least a few people in the legislature who’d like to tighten up the “Trust loophole.”

    Sorry I can’t be more positive, but until it happens or at least until it’s put forth in a complete format, it’s just impossible to predict exactly how it might affect gun trusts.

  19. avatar Skyler says:

    I’ve never understood why anyone cares what police chiefs say. Their interests are not to protect individual freedom, their interest is to make their jobs easier which has a strong alignment counter to freedom by its nature.

    1. avatar Gyufygy says:

      Because all those medals they wear are sooooo SHINY! Must… follow… the shiny…

  20. avatar ColoradoGunOwner says:

    I wish these reporters would do more research. If a trust was really a loophole then everybody would set one up and get there NFA item with no issues. Plus they are all registered with the ATF plus as others have said you still have to wait 6 months and I’m sure they are running all kinds of back ground checks and if they aren’t then give me my items already.

    http://nevadaguntrustattorney.com/2011/09/16/background-checks-for-nfa-trusts/

  21. avatar PK says:

    “Okay, but if you hand it to your kid to hold while loading up your range bag, you’ve technically broken the law.”

    Complete BS. If you’re right there, you’re considered in direct control of the NFA item and haven’t broken any law.

    Now, if you leave your NFA items out in a room and leave the house while other people are present, and there are no locked doors or safes to contain the items, you’ve broken the law.

    1. avatar Matt in FL says:

      “If you’re right there, you’re considered in direct control of the NFA item and haven’t broken any law.”

      I’m not disputing what you say, but if you have some citation for that, I’d love to see it. I know some people get nervous about it because the definitions of “transfer” and “possession” are fairly ambiguous. Unless you know something I don’t (which is entirely possible), the reason that there’s so much disagreement on this point is because, to my knowledge, there’s no case law on this. No one has ever, again to my knowledge, been prosecuted for possession when all that happened was the true owner handed it to someone else at the range. Due to the ambiguity in the language, some say they could be, but I don’t think it’s happened. Maybe it’s just like the stories mothers tell their children at night to make them behave.

      1. avatar Matt in NC says:

        If you couldn’t hand the weapon to someone without being in violation, then ranges could not rent MGs for people to shoot.

  22. avatar Ben says:

    There has been some movement towards having the trustee of the trust provide fingerprints/photos to the BATFE. Certainly there are some privacy ramifications and it makes the application process a little less convenient, but ultimately there are still a lot of advantages to firearms trust planning beyond the application process.

  23. avatar mike says:

    Keep in mind that “gun” trusts are just property trusts, with a specific focus on firearms. And a good solid one contains all the necessary lingo. Gun trusts are for regular weapons also (Title 1), not just for restricted ones (Title 2). And with the same benefits.

  24. avatar uncommon_sense says:

    “… there is a reason why, as a general rule, people are prohibited from owning silencers, machine guns and what we would call sawed-off rifles or shotguns.”

    Actually, there is NOT any reason. People who invest thousands of dollars to create a legal entity (a trust) and register the trust and its contents with the appropriate government agencies are not criminals. I have $10,000 for the first person that can show me two documented instances of members of such a trust using the items of that trust to commit violent crimes against a citizen or our nation.

  25. It’s hard to come by knowledgeable people for this topic, however, you seem like you know what you’re talking about!
    Τhanκs

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