Constructive Possession of NFA Firearms – Red Hands Not Required

2012-05-05_16-12-30_734r
By Matthew J. Bergstrom, Esq.

There has been much confusion about the handling of another person’s NFA firearms and when criminal liability could arise. Generally speaking, possession of an NFA firearm by someone other than the registered owner could be viewed as an illegal transfer. Possession, however, is not limited to the person caught red-handed with your can. The concept of constructive possession covers a broader set of circumstances encompassing many common situations for gun owners. Unfortunately, not everyone takes these issues seriously…

Constructive possession exists when a person knowingly has the potential for access or control of NFA firearms outside the supervision of the registered owner of those arms.¹ When NFA firearms are in possession of someone other than the registered owner it could constitute an unlawful transfer subject to the severe penalties of the NFA and the tax code. These penalties could include a prison sentence, hundreds of thousands of dollars in fines, and loss of the right to own or possess firearms.²

Some people complain legal concerns like these are either over-hyped or mischaracterized by incompetent lawyers peddling poorly designed “gun trusts.”

Other people look to the past and comfort themselves by citing the dearth of criminal convictions resting on constructive possession of NFA firearms. There are also people who believe they have no worries because they never let their guns out of their sight.

We need to be more realistic because times have changed.

Previously, few people owned silencers and short-barreled rifles, but in the last 5-10 years we’ve seen explosive growth in the number of these firearms. Consequently the higher profile of NFA firearms has placed them under greater scrutiny. They’ve been threatened by proposed executive orders of the Obama administration, and local shooting ranges are more likely to scrutinize your tax stamps. These developments have occurred at a time when all gun owners need to be more concerned about overly aggressive policing of gun laws (see: John Filippidis, and see Metropolitan Police Department of the District of Columbia have been ordered to arrest a person caught with a single spent shell casing in his car).

Clearly, constructive possession of NFA firearms is an important issue, but with knowledge and proactive solutions, no one should be discouraged from plans to obtain a .22 can or a machine gun.

Initially, the possibility of another person having access or control of your firearms outside your presence might seem unrealistic, but think again. We’re not talking about the black and white situations. Of course you can’t treat your NFA collection like a lending library. We’re also not talking about the typical visit to the range when your buddy tries out your silencer under your supervision. Those are relatively easy, black and white situations. We need to worry about the gray area of everyday life.

Consider these examples:

  • Your daughter drives away with your range bag in the trunk.
  • Your wife has the combination to your gun safe.
  • Your brother borrows your suppressor.
  • You share a hunting camp with friend.
  • Your father safeguards your NFA firearms while you’re —
    • Hospitalized
    • Vacationing
    • Deployed to Afghanistan
    • Traveling for business
    • Temporarily assigned to California
    • Repairing your home from storm damage, or
    • Moving into a new home.

Could you find yourself in the above situations?

Next let’s add some context. Imagine one of those scenarios happens at the wrong place and at the wrong time. A skillful law enforcement officer could unexpectedly discover a way to throw the book at you with the simplest line of questioning: “You match the description of someone we’re looking for, and your taillight is out. Is this your car? Who owns it? Is he a gun owner? Are there guns in the car? Can you show us? Do you have paperwork for this silencer?” Or how about this, “Ma’am, we received a call from your home security company, do you want us to check your house? Are there guns in the house? Do you have access to them? Whose SBR is this?”

If you understand these risks, you’ll know how to secure your NFA firearms. If you wish to mitigate the risk for yourself and others who might have constructive possession of your firearms, then you should consider forming a legal entity, like a trust. Eligible people named in a trust may have possession of the property in the trust. Thus, no transfer legally occurs when people in your trust have potential access or control of the NFA firearms in your trust.

A trust has added benefits. It can serve as an estate plan for your firearms, and is the only legal method of conveying property at your death that will avoid a public court record. Trusts are also eligible for ATF eFile, which, despite the occasional glitch, processes tax stamps in a fraction of the normal time.

Please note: We offered this analysis for informational and discussion purposes only, and it is not intended as legal advice. If you have questions or concerns about firearms law, contact Arsenal Attorneys.

________________________________

¹ See U.S. v Booth, 111 F.3d 2 (1st Cir.1997); United States v. Cardenas, 864 F.2d 1528, 1533 (10th Cir.), cert. denied, 491 U.S. 909, 109 S.Ct. 3197, 105 L.Ed.2d 705(1989); United States v. Hien Van Tieu, 279 F.3d 917, 922 (10th Cir. 2002).
² 26 U.S.C. § 5871.

Matthew J. Bergstrom, Esq. is managing attorney of Arsenal Attorneys™, which offers the Arsenal Gun Trust™ and a variety of other legal services for gun owners and the firearms industry across the United States. One hundred percent of Arsenal Attorney’s™ clients are gun owners.

comments

  1. avatar ST says:

    An excellent contribution.

    It may seem like overkill now to consider the matter, but just wait until Hillary or one of her political disciples moves into the Oval Office.

    1. avatar Jim R says:

      If a trust is relatively easy and relatively inexpensive to set up, I don’t see a reason not to. If it were expensive and/or difficult, I could see people not wanting to bother. Even if it were a pain, the extra insurance seems worth the trouble when compared to a long stay in the Gray Bar Hotel and the forfeiture of your rights for life.

      1. avatar Kent Unterseher says:

        At least part of the expense comes from transferring all of ones NFA weapons and/or items into the trust. It’s another $200 tax stamp for every transfer.

    2. avatar Come on says:

      Dude, I vomit every day with Obama as President…now you had to go and paint that picture…

  2. avatar CGinTX says:

    Thank you for shining a light on and explaining these areas; it was a very interesting read and I appreciated the clarity and lack of…emotional vigor 🙂

  3. avatar michael nieto says:

    another article reinforcing the notion that the NFA is archaic and unconstitutional

      1. avatar michael nieto says:

        At the very least the NFA puts an unconstitutional burden on the ownership of otherwise completely legal items

  4. avatar Erik says:

    Make sure wife and daughter have the knowledge and guts to tell officer friendly to get a warrant helps too….

  5. avatar PhoenixNFA says:

    Very well written and logical discussion.

  6. avatar g says:

    Important stuff… thanks for sharing.

  7. avatar MD Matt says:

    I have and will continue to give this a lot of thought. On the one hand, there are some obvious advantages to my wife and I having even non-NFA regulated firearms in a trust. On the other I am concerned that registering the trust effectively makes us larger and easier targets for undue scrutiny—law enforcement, tax review, general harassment…etc. I feel the same way about becoming a designated collector or getting my handgun qualification permit here in Maryland.
    What doesn’t get discussed much and I’d like to see, is how much initial paperwork creating the trust requires and then how much ongoing paperwork is required—fees, tax filings, state filings…etc. The one major advantage to not forming a trust is that I don’t have to file any paperwork. I buy the gun(s) and I’m done. I’m honestly concerned that if I put everything in a trust and I miss some state filing date or obscure legal requirement that I will then forfeit the trust and all the firearms therein. Simpler is better. It’s the same reason I don’t really want to go through the Hassle of getting and then maintaining the paperwork for a SBR or suppressor. The hassle and increased exposure to compliance risks seriously turns me off.

    1. I’ll put together a discussion on this for folks’ general knowledge. Feel free to contact me directly. I share many of your concerns and we have solutions addressing them.

    2. avatar Pro-Liberty says:

      I’m not sure where you are located, but in my state there is no requirement that you register a trust at all. There is no annual paperwork, fee, or anything else. Is there some requirement to register a trust in your state?

      And for tax purposes, any income realized from, say, interest on a bank account opened for a revocable trust, is typically going to be imputed to you for tax purposes. During the settlor’s lifetime it isn’t any more complex than dealing with interest income on a personal checking account.

      1. avatar CharlieKilo says:

        VA. Mr. Bergstrom is my recommendation for Trust Attorney. He did my NFA Trust quickly and thoroughly. Had a small chat with him at Lobby Day, on a variety of topics. Great guy, highly recommended.

        For VA, I had to get it notarized. That’s it.

      2. avatar Drew says:

        He is concerned that a trust would be a defacing registration. And he is right. It is a legal document available to the government that tells them you either own or want to own a firearm. That has potential consequences if you have leo interactions down the line.

        1. avatar tfunk says:

          Because if you apply for a tax stamp for an NFA item as an individual there isn’t a record of you wanting a firearm?

    3. avatar Ben says:

      A trust is an entirely private document. I won’t speak for other states, but in Alabama, the state where I practice law, trusts don’t have to be registered at all. The only time you would have to show the trust document to anyone is when you are purchasing an NFA weapon, you have to attach a copy to the Form 4 that goes to the ATF. The trusts I draft include your non-NFA weapons as well, but we use a general assignment of the non-NFA weapons so that there is no itemized schedule of what you own.

  8. avatar Anon says:

    This is not far-fetched. We now have Homeland Security bringing charges against individuals for gun law violations – SBR, etc. They understand a lot less about gun laws than ATF…. and are even more enthusiastic about making cases (think SWAT teams).

    We also had the situation of wide-spread flooding in Colorado where individuals had to store firearms – including NFA firearms and magazines over 15 rounds with relatives and friends in violation of federal laws, the state magazine ban, and the universal background check laws….

  9. avatar Rank Hank says:

    I know the goberment thugs may, I mean are reading this but I am so sick an tired of the BS coming down the pipe into our lives. Way back in 1974 I took the Oath to protect my country from enemies both foreign and domestic, I stand by that today. I just hope that we as a nation freaking wake up to this crap and take charge, the POS we have as President is worthless and nothing but a hemorrhoid that keeps on getting larger an larger. Between him and the spineless elected officials we have now, I just do not see any good happening soon. Got to go I hear someone knocking at the door..

    1. avatar Henry Bowman says:

      Meet the new boss… same as the old boss.

      1. avatar Kent Unterseher says:

        Never thought we’d be saying “President Clinton” again, but I’m afraid it is possible…

  10. avatar Andrew says:

    I’m interested to see if Dyspeptic Gunsmith has any thoughts on this.

    TTAG – Can we get him on the line for a comment on this?

    1. avatar Eric says:

      No phone number for that, you have to go up to the roof and light the Dyspeptic Signal.

  11. avatar Michael B. says:

    Thanks for the informative, wonderful post, Mr. Bergstrom.

    I know I personally trust lawyers more than loudmouthed gun store owners when it comes to legal issues.

  12. avatar beanfield says:

    “local shooting ranges are more likely to scrutinize your tax stamps.”

    This happens? If a range starts asking for my papers, I’m taking my business elsewhere.

    1. avatar unknown says:

      Impact Guns, my local range/NFA dealer states that this is their policy. I was asked if my MP5 clone pistol was NFA.

    2. avatar Jim Barrett says:

      This is a tricky area. If you read the NFA rules, technically only an agent of the ATF has the right to demand to see papers. Other Fed agencies may have it (FBI, etc.), but the local and state Po-Po definitely do not. That said, in practice, refusing to show the paperwork may lead to arrest or confiscation of said items.

      As for gun ranges, if they are private property (and most are), the owners have the right to make up just about any silly rule they like and always have the right to deny service to anyone and to ask anyone to leave the premises at any time. I would question why the gun range needs to see the paperwork – do they really have any liability if someone is using an illegal NFA item on their range? If they do, then they get to see the paperwork. If not, then I would certainly consider taking my business elsewhere if feasible.

      1. avatar John L. says:

        At our local club, officers will ask to see the paperwork on NFA items.

        While it’s not strictly liability, they do not wish to have illegal activity taking place on club grounds.

        As noted, while only certain federal agents have the right to ask for the paperwork, I live in an area that might be described as … sensitive to threats. There are very good reasons for this but the bottom line is, depending on the threat the response could be … considerable. So the club takes pains to be a good neighbor.

    3. avatar Matt in FL says:

      Every gun store I’ve ever visited with an NFA item (usually it’s a silencer) has wanted to see the paperwork on it. No paper (or just don’t want to show it), no shoot. “We reserve the right to refuse service to anyone.”

      You could raise a fuss among the local gun owners (“They don’t understand liberty or the law!”), but let’s be honest: Outside of a small subset of gun owners, you’re going to be seen as a kook for not just complying with a reasonable request.

      1. avatar beanfield says:

        It’s not so much as I want to raise a ruckus or yell about law/liberties, I simply think the entire process is unnecessary. It’s aggravating enough to have the gun grabbers putting the onus on gun owners to prove that they’re allowed to have certain firearms. Having guys that are supposed to be on your side doing the same is just rubbing salt in a wound.

        Luckily for me my local range doesn’t do this and I have a handful to choose from. If I do run into a range like that (or mine changes their policy), I’ll simply say thanks but no thanks and shuffle on elsewhere. In my humble opinion, it’s like buying products from a store with no ccw signage. I have a hard time justifying why I should give them my cash. I simply pick an alternative (where available).

        Sorry, didn’t mean it to sound like a criticism of your article. Overall it was well written.

        1. avatar Matt in FL says:

          In the case of the range closest to my house (which is also one of the nicer ones in the area), I think they ask because they do a pretty healthy business in NFA items (mostly silencers; they have more silencers in their case than I’ve ever seen in any other single location), so like ConnorMN said his employer is, I’d bet that my local range is just really a stickler for all the rules. That spills over to wanting to make sure there’s not illegal activity going on in their house, mainly because they just don’t want the hassle that might come along with it. For instance, if something illegal was going on (customers, not shop/employee), and ATF got wind of it and busted those responsible, that still might bring added scrutiny on the folks that run the shop. And while I’m sure they’re clean and they could stand the additional scrutiny, nobody wants that hassle.

          Oh, and it wasn’t my article. Me and Matthew Bergstrom are not the same guy. Even if we were, your question wasn’t offensive.

    4. avatar Semper Why says:

      It definitely happens. I’m headed to a long range match this weekend at Quantico and they state right up front that you will be asked to provide paperwork for any suppressor. The VA Gun Trader shoot allows and encourages NFA firearms but they check your paperwork. If you don’t have the paperwork, you don’t get to shoot. At my rod & gun club, we gently remind people to have their paperwork if they’re using suppressors and we spot check as the mood takes us.

      You play on their property, you play by their rules. I suspect the question everyone is dying to ask is “What happens if you don’t have your paperwork?” At my club, we ask ’em to bring the paperwork in the future. Repeat reminders have not been necessary. At the VA Gun Trader shoot, I believe the policy was that they had to pack up and leave. And a good thing, too. As expected, the neighbors complained of the noise to the police and they stopped by for a chat. I have no idea what happens if you go to military base and don’t have your paperwork. I suspect you’ll be kicked off the base, but I wouldn’t want to find out.

      Disclaimer: I am a satisfied customer of Arsenal Attorneys.

    5. avatar tfunk says:

      Blue Ridge Arsenal asks for NFA paperwork.

      And I am another satisfied customer of Mr Bergstrom’s.

      Uh, that sounds inappropriate. Let’s just say I have no complaints about his services. Oh, wait…

  13. avatar LongBeach says:

    Would setting up a trust be helpful to me as a CA resident, even if i’m not considering getting a can or SBR at the moment? Would it alleviate some transfer issues between myself and wife and stepson in regard to ‘assault weapons’ and stuff that otherwise wouldn’t be transferable upon my death or otherwise? I’d really like to keep my guns in the family for as long as possible. Please pardon my ignorance if this is a foolish question.

    1. avatar FortWorthColtGuy says:

      SBRs and Cans are No-Gos in CA. You can get a trust for your non-NFA weapons, however, if you even try to Form 1 a firearm, you will get a “Denied” letter promptly returned to you from the NFA Branch.

    2. avatar MD Matt says:

      Hi,
      As someone who’s been mulling the same decision I can speak to some of your issues with the understanding that I know crap all about CA. trust law.
      Basically the reason you’d get a trust formed for non NFA titled firearms is inheritance and access. The trust holds the guns and the people in the trust have access—sort of the way employees of a business might have access to the company car. If one of the employees dies, the rest of the company retains access to the vehicle because it’s in the company/trust’s name and not the individual. This article deals with constructive possession of NFA items, but many of the same principals apply to non-NFA firearms as well. In Maryland, if I own the gun, but my wife can get into the gun safe, I believe the term is cereal possession—constructive possession. This is technically against the law as well. That’s why, even if the convicted person doesn’t have access to the gun safe, most states say felons can’t have guns in the house. It’s more complicated than that, but you get the gist.
      The risk, as with the company car, is that because all those people have access, all those people have access. If you go through a divorce, your child has a breakdown, you developed bad blood later, you’re going to have to contend with the consequences of their access—finding a way to have them removed, dissolving the trust…etc. Adding people to the trust and removing them would be one of the big questions I’d be discussing with my attorney at formation—who has the ability to do so, what associated risks I take on if they do something stupid, how they might be able to take them away from me…etc.

  14. avatar Dustin Eward says:

    A very well written article on the realities of the drastically disproportionate punishments of an arbitrary and malicious law that desperately needs to be repealed.

  15. avatar JAS says:

    My LGS is an NFA dealer and sells many different kinds of suppressors. They will set up the trust for you right then and there if you don’t already have one. They strongly recommend the trust approach.

    1. avatar Jim Barrett says:

      As the Firearms Concierge pointed out in a post a few days ago, beware gun trusts set up by FFLs. Unless the FFL is an attorney or has had an attorney who is familiar with the intricacies of the NFA set it up, you would be better to get one done yourself by a competent attorney with experience in the area. The only thing worse than no trust is one set up incorrectly. You need to send in a copy of your trust with the Form 1 or Form 4 and the ATF will keep a copy of it in perpetuity. It had better be right.

      1. avatar Matt in FL says:

        Exactly. Some (likely a very few) stores know what they’re doing, but the vast majority are simply slotting your name into a one-size-fits-all template that they’ve used a hundred times before. That “hundred times” is usually offered as a reassurance—”We’ve done this a hundred times, and never had a problem”—but think about it for a second: Is it really? What is the likelihood that your situation is identical to the previous hundred folks they’ve used it on? How many of them were or were not married? How many of them did or did not have a roommate, or a live-in girlfriend, or just friends that were in your house unsupervised on a regular basis? How many have minor children? And most importantly, how many of those gun store employees are going to ask all the questions necessary to acquire and/or confirm any or all of that information? And when push comes to shove, is the gun store going to bear any liability if that trust is written incorrectly for your circumstances? Not likely. Those situations are usually cash-and-carry, and once you walk out the door, the rest is on you.

    2. avatar Ben says:

      The ATF doesn’t scrutinize your trust for legal validity, which means your freebie trust might not be legally valid in your state, but still might get approved by the ATF. In that case, you would be in possession of a contraband NFA weapon registered to an invalid trust. Good luck with that.

      Furthermore, providing legal services without a license to practice law is a crime is most jurisdictions.

    3. avatar JAS says:

      They refer you to an attorney that specializes in trusts, including NFA trusts. How that arrangement works between the attorney and the LGS I do not know.

  16. avatar Jeff says:

    So tell me again why I should want to ask permission of the ATF to have these items if it would put me in such a precarious position.

    Would somebody PLEASE work to abolish some, if not all of the NFA? At least short-barrels and suppressors. I don’t care about MGs, personally, and that’s the part that scares most plebs.

    1. avatar Jim Barrett says:

      Need to pack Congress and the White House with Pro-Gun people. Until that happens, you can just about forget seeing any changes to the NFA.

    2. avatar John L. says:

      Yeah. The whole “somebody should do something” attitude is something I was glad to leave behind when I left California.

      Somebody equals YOU, dude. You don’t like it, work for change.

      You don’t even try, you have zero right to whine about it.

      1. avatar Jeff says:

        I have done plenty to protest in person and in writing for my 2A rights, but don’t even know where to start w.r.t. NFA. The most I’ve done is write my reps in support of SBR bills (WA state, no SBR). Thanks for the helpful sentiment though.

    3. avatar jwm says:

      I live in CA. I don’t have the time or resources to fight for cans and mg’s when I’m just hanging on to my fudd guns. Myabe after I get the right to 30 round mags and shall issue ccw I’ll have the time to worry about sbr’s.

    4. avatar Eric says:

      If you’ll cast your mind back, the various right-to-self-defense (“gun rights”) organizations were gearing up to do exactly this for 2013. Then Newtown happened and it all got shelved.

      1. avatar Jeff says:

        I vaguely recall this, but too much bad stuff has happened since then. We are collectively scarred, lol.

        Guns were definitely entering an astounding level of public acceptance just prior to Newtown, e.g. many of my non gun-owning friends were watching Top Shot and Sons of Guns, and were beginning to think that guns were pretty cool. Now at least one of them has totally backed off on that.

  17. avatar ConnorMN says:

    Serious question here:

    I work at a local range that allows all manner of NFA items with the presentation of valid paperwork at check in (our policy). We dont take copies or do anything other than inspect the paperwork to make sure your photo ID (which you have to present at check in anyways) matches the names and addresses on the paperwork, then we let you on your way.

    I had a guy check in without declaring he had a suppressor with him, he proceeded to go out to the range and shoot with it, following company policy, I went out and talked with him asking him to present his tax stamp and form.

    He replied:

    “I dont carry it with me nor would I show it to you anyways, you cant ask for that paperwork, that is against the law”

    To which I replied

    “Not carrying your stamp while in possession of an NFA item is reckless and asking for trouble, Regardless, if you refuse to present a valid tax stamp I will have to ask you to leave, Im following company policy, nobody else has a problem showing us their tax stamps upon check in.

    Am I in the wrong? I dont know much about document privacy laws when it comes to tax stamps, nor am I a peace officer, but can the company I work for request those documents?

    (I know we “can” simply by means of denial of service, but do we open ourselves up to suit or whatnot by doing so?)

    1. avatar Jeff says:

      No establishment should be asking for stamps unless you believe that you are liable for the shooter’s actions. I can’t say for sure, but I doubt you are.

      FWIW, I wouldn’t show it to you either.

      1. avatar ConnorMN says:

        As its been explained to me its not so much a liability as it is more related to ensuring that everyone’s “playing by the rules” (our facility is also a class 7 FFL, the boss is all about rules). We dont keep copies or anything of the forms or stamps, but on occasion we do get questions about the whereabouts of persons on the range by the police and whatnot in cases where persons at the range arent supposed to be there, nor be in possession of firearms. (thats the reason why we, and many other ranges save all the range waivers)

        As such a case may arise where the ATF asks us whether or not we could verify the carriage or validity of a persons forms/stamps with them being in possession of restricted items.

        If I were in possession of an NFA item and was reasonably requested to present my stamped form to an RO, I personally would see no risk in doing so if no copies were being made.

        1. avatar FirearmConcierge says:

          There’s actually no such thing as a Class 7 FFL.

    2. avatar Matt in FL says:

      I don’t believe you’re opening yourself up to anything. As you said, denial of service. I can understand and appreciate the feelings of those who wouldn’t wish to show their paperwork, but I can also understand and appreciate those who wish to have control over what’s going on under their roof. The former person’s recourse is to not patronize that establishment, and the latter’s recourse is to disallow the use of their range by the person who will not adhere to their requirements.

    3. avatar Sertorius says:

      This policy strikes me as overkill — I mean, why not require background checks on all patrons to make sure they are not violating felon-in-possession rules if you are checking legal compliance — but I’m not aware of any law or regulation that would make asking for the paperwork unlawful.

    4. avatar FortWorthColtGuy says:

      What happens when the address on the ID and the Form 1 or 4 do not match? After all, sometimes people move after acquiring NFA items. The person will notify the ATF of the address change in writing, but they will not send him a new tax stamp. This means people can have tax stamps/forms that may not match their current address but the ATF is aware and the owner is not breaking the law.

  18. avatar John says:

    I set my Trust up for this very reason…. so my Family is covered if something happens to me. Without the trust my Wife could not have access to the safe, nor my children. Upon my death the items could not be passed onto my children. My family could not dispose of them for me because they were not the owner of the tax stamp. Now if something happens to me, my children can inherit the items or my wife can sell them or whatever they decide needs to be done due to the circumstances. A trust solves many of the problems with NFA items. Exactly why the NFA should be repealed.

  19. avatar Kent Unterseher says:

    Just so I am clear on this… Hypothetical: I am at the range and my friend wants to shoot my suppressed SBR. If I am present, is this allowed? I have been hearing varying opinions on this question. Input?

    1. avatar Matt in FL says:

      Under your supervision is fine. That is, within your reach, or at most within your direct line of sight. If you have to visit the john, take it with you. I’m only halfway kidding about that last part.

  20. avatar James says:

    *seriously not trying to be a dick*

    Mr. Bergstrom,

    Implied even in this article and explicitly said in previous TTAG Gun Trust articles is the fact that there are numerous unqualified lawyers with little actual knowledge of firearm laws and little real world experience. Moreover, it is in your best interest to scare up a panic to drum up more business from us little uninformed moneybags who enjoy creating worldwide ammo shortages, drive up demand and prices of so-called ‘assault weapons’ to sky’s the limit, and live in constant fear that our RKBA is under threat from a looming enemy…

    What can you do to help asuage the concerns of the armed intelligentsia (sp?) who have been taught to keep an eye out for snake oil selling lawyers? Why are YOUR trusts the poo of all shits, while John Q. Lawyer’s are meaningless?

    Lastly, looking through your website (it looks like you are a relatively new and quickly growing operation, but I could be wrong from my 5 minute browsing on my smart phone), you don’t have any prices. For what sounds like a 90% boilerplate template *put your name here, here, here, and here* document/process with some customization to unique customer specifications, you should be able ot put a ballpark +/- 30% costs on there… That sure would make me feel warmer and fuzzier, and would make convincing the wife that a suppressor or ten is exactly what our house needs, and bank account can (probably not) afford!

    Lastly, you mention that a gun trust is a great way to make filing with the ATF easier via electronic stamps. If you’re showing concern over ‘grey areas’ of ‘constructive possession’, how do you feel about the electronic stamps, which have been shown in previous articles to not be legal per ATF’s letter-of-the-law (i.e. not a physical stamp, not physically affixed, looks not legit/forged to, well, anyone, plus other concerns brought up in an article I’m too lazy to find!)?

    *again, seriously not trying to be a dick, just curious about a company I would love to do business with!*

    1. avatar Matt in FL says:

      He’ll probably be along later today to bat cleanup on questions, but in the meantime, I can answer a couple of them.

      “What can you do to help assuage the concerns of the armed intelligentsia (sp?) who have been taught to keep an eye out for snake oil selling lawyers?”

      He told me he had plans for a couple more posts already, among them “How to choose a gun trust lawyer.” Hopefully some of your concerns will be addressed in that post.

      “…you don’t have any prices…”

      There are prices there. I haven’t tried looking on my phone, but on my PC, the top menu bar has a link “Arsenal Gun Trust” that takes you to a short introductory page with a dropdown where you select your state. Depending on the state you’re in, the choices available differ, but those choices all have prices attached.

    2. Hi James. Each time I begin typing an answer about your questions it starts to look too much like a sales pitch, and that’s not why we’re all here. Maybe you could call me instead–my number’s on my website.

      ‘Matt in FL’ is right, I’ll soon offer our ideas to help people pick a good lawyer and how to pick a good gun dealer. Like any good forum, the amount of knowledge will depend on the discussion generated, so I look forward to see everyone else’s thoughts because it’s not about me.

      For now, I will say this. All of our clients, and anyone else seeking the help of an attorney, should receive a meaningful consultation about all the issues. For NFA firearms, those issues should include the ATF process, recent developments in gun laws, privacy, security, estate planning, non-NFA firearms, ammunition, magazine bans, manufacturing, engraving, change of address, add/removing people and property, eligibility, constructive possession, gun dealers, ATF eFile–and that’s just for starters. So, the consultation is really important. It’s the heart of our process.

      A lawyer who can’t give you a full discussion of the issues is more likely to use a copy/paste approach in preparing the documents. In our firm, a minimum of three attorneys handle the preparation of each client’s documents–so there’s a lot of personalized attention.

      So James, if you and I don’t talk directly please jump on board the planned ‘how to pick a lawyer’ discussion. There’s a bunch of stuff I began typing here that I thought should either be saved for that time or for a personal conversation you and I have about why you might choose our firm. Until then I’m not worried you’d wind up with an incompetent attorney because your going to ask the prospective lawyer the tough questions–as you should! Thanks.

      1. avatar Kent Unterseher says:

        I will add (no, I am not a paid endorser) that Matt B. set up my gun trust and spent a good deal of time discussing my personal situation with me. We spoke several times on the phone during the process, and I have been able to call their office, since the trust was set up, with any questions that have come up. Well worth the money in my humble opinion.

  21. avatar Jim says:

    The author got possession and constructive possession confused. He didn’t discuss constructive possession in the article at all. How can you trust someone who makes such an error?

    1. avatar Matt in FL says:

      Enlighten us as to exactly what he got wrong, then. It seems to me that constructive possession is defined at the beginning, and then there are several examples (some even in a bulleted list) of things that could be construed as constructive possession in the wrong circumstances.

      How would you have done it differently? Please show your work.

      1. avatar Jim says:

        The author talks theoretically about what “might be” but offers no case law to prove his point. That is because there is no case law for “constructive possession” of NFA items…. It is (as of today) a fictional theory that might be one day applied to NFA items. The only case I could find where it was even charged, was the case of a man selling a pistol with a forward grip included in the sale, and a foam cut out case showing a strong likelihood that the forward grip had been attached to the pistol, making an illegal AOW. The case was dropped. Even then, the above case is not a similar example (constructive possession by ownership of items that could be turned into NFA if attached) to the fictional examples above which have absolutely zero precedence in NFA law.

        1. avatar Matt in FL says:

          Taking your statements at face value (that there is no case law), without actual case law, the only thing we have to go on is the best interpretation of attorneys who went to school to learn this stuff, and who deal with it every day. Is he in the business of selling gun trusts, and therefore has a vested interest in that interpretation? Sure. But who else are you going to listen to? If you have building plans drawn up by an architect/engineer instead of your brother-in-law, it’s probably going to cost you more money, both for the plans and the building itself. Are they making money? Sure. But they also know what they’re talking about.

          What would you tell someone who asked you about constructive possession? That it’s a boogeyman that doesn’t really exist, and so they don’t need to worry about it? How many years of experience do you have at reading and interpreting laws?

        2. avatar Jim says:

          “What would you tell someone who asked you about constructive possession?” I would say that in most cases (like this article) it is a strawman designed to scare people into buying a trust.

        3. avatar Matt in FL says:

          Ah, ok then. Now I get it. So your problem isn’t so much how the information was presented, but that it was presented at all, because you think it’s all snake oil. I believe I’m done here.

        4. Hi Jim, I wrote something in my post about the line of reasoning you raise: “Other people look to the past and comfort themselves by citing the dearth of criminal convictions resting on constructive possession of NFA firearms.” Let me share a personal example of how I think these issues translate into real life.

          Last year my family moved, which meant we were temporarily homeless before we moved into our next home. During that period I did not want to give my gun collection to a moving company, nor did I want to put them in a storage unit or a pod carted around by a random forklift and truck! I also did not want to leave guns in a car or a hotel. Naturally I turned to my inner circle of friends and family who knew gun safety.

          When I chose a buddy to store my arms, I knew I was placing a heavy burden on him. He has two young children at home, and my collection included firearms regulated by Title 2 of the National Firearms Act. I did have confidence in my friend’s ability to be safe and responsible–he’s a certified NRA Firearms Instructor, Range Safety Officer, and an alumnus of his school’s shooting team. Nevertheless I wanted to be able to look him in the eye when I requested this favor knowing that I was not creating any criminal liability for him. Period. I owed him that. And I wanted to know I did right by him.

          In fact, my friend readily accepted my request because he knew he was already in my trust. Because of that he knew I already made every effort to comply with the law and to protect him as he helped me.

          Do I think BATFE would know the difference? Probably not. But the value to me of doing the right thing was priceless, and I think it meant the same to my friend who helped me. In fact we share a bond. We practice gun safety and we obey the law, even when no one is looking, and even if no one gives us the credit for doing so.

          I start to worry when anyone starts talking like we can ignore today’s political climate and assume nobody would be caught or nobody would be prosecuted if they were caught in unlawful possession of a firearm. I say, take your own risks, but think about the other people involved.

          The fact we’re all having this conversation shows the sophistication of the discussion within the gun community concerning NFA firearms. Of course trusts are attractive for faster processing by BATFE, and yes they avoid the problem of the loop hole exploited by CLEOs who think they can withhold their signatures, but over the years I’ve observed our clients are more concerned about two things: Integrity and Legacy. As gun owners find themselves on the political bull’s eye, our clients want to enjoy the peace of mind of doing the right thing, and focusing on preserving their collection for the next generation. No patriot wants Uncle Sam to inherit their firearms.

        5. avatar Kent Unterseher says:

          I don’t know about you Jim, but I don’t want to become the case law that everyone references in the future.

  22. avatar Arod529 says:

    Now that is a good practical reason for a trust.

  23. avatar ChainsawWieldingManiac says:

    “Other people look to the past and comfort themselves by citing the dearth of criminal convictions resting on constructive possession of NFA firearms.”

    Which is a pretty good reason to be comforted that the author never really addresses outside of some FUD. There have, semi-recently, been guys caught RED HANDED with pistol plus stock combos who have never been formally charged (only arrested) with constructive possession. What does this tell you about the BATFE’s priorities?

    1. avatar Kent Unterseher says:

      Tells me that I would rather not be arrested…

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