M240L machine gun, courtesy army.mil
As in most of the rest of the country, trusts are commonly used in Virginia to acquire and possess NFA items such as automatic firearms, suppressors, and AOWs. However, Virginia has a specific law with regard to machine guns requiring that they be registered with the Virginia State Police in addition to whatever ATF paperwork may be involved. That adds an unfortunate twist to a seemingly straightforward situation. According to then-Attorney General Ken Cuccinelli, a trust cannot register a machine gun under Virginia’s Uniform Machine Gun Act. . .

This situation was brought to light in answer to a letter from Colonel W.S. Flaherty, Superintendent of the Virginia State Police to the AG. In the letter, Superintendent Flaherty asked, in part, “whether a trust may register a machine gun in Virginia under the Uniform Machine Gun Act (the ‘Act’).” Cuccinelli’s response (pdf), dated November 27, 2013, was brief and to the point: “It is my opinion that a trust may not register a machine gun pursuant to the Uniform Machine Gun Act as enacted by the Virginia General Assembly.”

The problem is one of language. The Act states the registration application must contain, among other things, “the name, address, and occupation of the person in possession,” and goes on to define “person” as including any “firm, partnership, association or corporation.” Cuccinelli writes that “[a] trust is not listed, and thus, I conclude that the General Assembly did not intend to include a trust” among the legal entities to be considered a “person” for the purposes of the Act.

As support for that he notes that general definition for “person” as used in VA Code includes “trust” among the other legal entities. § 1-230 “When the legislature omits language from one statute that it has included in another, courts may not construe the former statute to include that language, as doing so would ignore ‘an unambiguous manifestation of a contrary intention’ of the legislature.”

This means that it’s likely that any machine gun transfers involving trusts in the state of Virginia will be denied in the future. It’s unknown what it means for machine guns already on an existing trust. If you’re in that situation, it sounds like an attorney might be in your immediate future.

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57 Responses to VA AG Says Trusts Cannot Register Machine Guns

    • “Get rid of the NFA crapola and make everything over-the-counter.”

      FIFY

      Background checks are an infringement.

      • Unfortunately they routinely let people out of jail who should never be trusted with a firearm.

        Until they decide to keep those criminals in jail forever, I’m okay with a call to the FBI to make sure guns don’t get transferred to a murderer who got out for “good behavior.”

        • Statistics, please. How many people are released from prison on an annual basis who should not (in whose opinion?) be allowed to exercise their natural right to self defense? I want to know that EXACT number. I want to know who decides those persons’ fate. Who compiles, maintains and enforces that database? Who prevents them from putting your name on it, or mine? Who decides what level of supposed criminal activity determines addition to the prohibited list? Who establishes another government bureaucracy to allow subjects to petition to be removed from the list? If you petition are you inspected and all firearms currently in your possession confiscated until your petition is resolved in some government court?

          Now, after telling me how many supposed released criminals should be prohibited from exercising this natural right, and by what method you intend to enforce this prohibition, since it is just another law and criminals, by definition, ignore the law, HOW MANY LAW-ABIDING CITIZENS WILL BE ADVERSLY AFFECTED by this infringement of our natural, civil and Constitutionally protected right to keep and bear arms and your willingness to change the Second Amendment to say, “…shall not be infringed, except…”?

          C’mon, guys, please tell me how much of MY essentially liberty you are willing to trade for some small degree of YOUR personal safety? And how do you believe turning the RKBA into a government regulated privilege will afford ANYONE any safety, considering the massive abuse of this power by governments all through history?

          Oh, yeah, “It can’t happen here.” I forgot.

        • I’ve said this before: the day will come (maybe sooner than you think) when the state will classify the desire to protect yourself as a mental defect.

  1. Sounds like logic fail to me…

    Virginia defines “person” as “including a trust”.

    Machine Gun Act says “person”, including “firm, partnership, etc…”

    To me, that means “person” in all it’s definitions PLUS firms, partnerships, etc…

    If they wanted to EXCLUDE trusts, they would have to specifically say that rather than just list additional groups above and beyond that already defined as “person”.

    • That’s also not an unreasonable position – either the act needs to be clarified or a judge needs to step in after someone files suit.

      That’s the problems with many laws, for being written by “lawyers” mostly, they are full of anticipatable holes and contradictions.

      • And this is what happens when we allow our rights to be infringed upon even in small doses. We end up arguing around the fringes of the law instead of recognizing that the law should be struck down in its entirety.

        • Today a Pennsylvania court ruled that the law requiring someone to show a photo ID was invalid because it put an unreasonable burden on that person’s right to vote. But apparently background checks, special taxes and permits are not unreasonable burdens on a person’s right to bear arms, which is stated explicitly in the Constitution WAY before any mention of voting rights.

      • The more complex the law, the more lawyers are needed to make sense and interpret. So our legislators have counter incentives to make straightforward, easy to read laws.

        Aside from that, there are now so many laws on the books, contradictions and logical problems like the one here are inevitable.

        I’m not anti-lawyer, as such, but when a person of average intelligence needs an interlocutor to set up something like a simple will, there’s something wrong.

        • http://www.youtube.com/watch?v=Hbs_3lePAjE

          PJTV: Bias! The Case Against Lawyers and Judges

          Uploaded on Jan 27, 2011

          Is the law biased in favor of judges and lawyers? Does the legal system give the legal profession special privileges? Do lawyers have liberties that other do not? Find out as Benjamin H. Barton, author of “The Lawyer-Judge Bias in the American Legal System” joins Glenn to talk about his book.

        • a person of average intelligence

          Unfortunately, due to our fabulous public indoctrination education system, a “person of average intelligence” is an ignorant idiot who couldn’t spell cat if you spotted him the C and the A.

          That’s the truth and you know it.

        • “Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.”

          – Benjamin Barton
          “Do Judges Systematically Favor The Interests Of The Legal Profession?”
          October 2007
          University of Tennessee Legal Studies Research Paper No. 1
          http://ssrn.com/abstract=976478

        • “The more complex the law, the more lawyers are needed to make sense and interpret. So our legislators have counter incentives to make straightforward, easy to read laws. ”

          Most of the legislators are…. LAWYERS! SURPRISE!! Lawyers scratching each others’ backs.

    • I agree, as a lawyer, with this interpretation. Further, an AG’s opinion is just that, an opinion. It carries no weight in a court of law.

    • Not true. He has been a real friend to gun owners. It sounds like he is using a very strict interpretation of legislation as written, which is consistent with his conservative philosophy.

      Anyhow, he is no longer the AG. The anti-gun Mark Herring is, so Virginians better brace for impact.

  2. It would seem that his interpretation is reasonable in accordance to the language in the act so the act needs to be fixed.

    This is what happens when no one reads legislation that mostly gets written by “kids” (aides) and lobbyists.

    The number of laws governing any persons every waking moment is probably staggering, unknowable, and contradictory.

    • Concur – Cucc is pointing out that, by omission, trust is not included as part of the definition. He can’t make up the law or base it on “they meant” – he was the AG. I agree this needs to be fixed, but I’m wondering about the likelihood of it getting signed by the new Gov provided it gets through the GA.

    • This is what happens when Code is so complex that the bill-to-law mechanism cannot possibly encompass every possible quirk in the law and is riddled with errors that are then Codified into law.

      Here we have an (hopefully) honest attempt to pass a reasonable law, now confounded by a (hopefully) inadvertent omission in STATE law that fails to coordinate with FEDERAL law.

    • Agreed. I highly respect lawmakers and people in positions of power who interpret and read legislation as it clearly states, even when that means things don’t swing my way. A great example of this was then-AG for Michigan Jennifer Granholm who put out the opinion that, since the Michigan CPL stated that one may not “conceal” a pistol in the PFZs, and an earlier statute allowed for people licensed by the state to carry in them, that open carry was allowed in the Michigan PFZs as outlined in the CPL law.

      Granholm, who recently crusaded against SYG laws (like the very one she enacted and supported) and is generally not pro-gun, gave the pro-gunners a win based on a clear reading of the law, which could have easily been twisted to suit her agenda. Cuccinelli could have done the same thing, but instead he provided a clear interpretation. Sucks for us, one more reason to repeal a bad law IMO.

  3. Why all the angst about machine guns? Whats the murder rate associated with fully automatic guns? Don’t they have more pressing issues you might ask? Oh yes, I forget: for any ruler, civilian disarmament IS the most pressing issue!

    • While it is true that machine guns are not used by criminals today, that was not the case in the 1920s and 30s. Criminals commonly carried weapons like the Thompson SMG, and used them, most notably in the St. Valentine’s Day Massacre.

      The passage in 1934 of the National Firearms Act was designed to make these weapons much harder to obtain – $200 in 1934 is around $3,500 in today’s money in terms of purchasing power. One could argue that the NFA is an example of successful gun control legislation – the fact that criminals do not use machineguns in the USA today is clearly a direct consequence of the NFA.

      • Thank you for the history lesson but I think you missed my point. What we have is a solution in search of a problem. I’m not advocating eliminating current regulations (although I feel strongly that ALL crime committed with guns can be addressed by some means other than making the guns illegal) I’m just asking what problem is being solved by “resolving” this ambiguity in VA law?

      • I left out of my previous reply that the solution for criminal use of machine guns in 1934 was not the law it was arming law enforcement with machine guns.

        • Or not creating huge black market enterprises by enforcing un-enforceable bans on substances.

        • And the cause of these criminal organizations having so much money and reason to exist was prohibition. Let’s end the current prohibition on marijuana and watch crime drop again.

      • I Have to call BS on the logic. The VAST majority were owned by organized crime syndicates, who could easily have afforded the fee. While others of the time like Bonnie and Clyde, John Dillinger, Etc, simply stole automatic weaponry from Federal and Military armories because free is free. Now, If you combine the NFA with the GCA and especially the Hughes Amendment from FOPA, that pretty much whittles it down.

        • I agree: saying the law ended the crime then is as stupid as saying the laws prevent crime today. The police ended the problem then by out gunning the criminals and that’s the way liberty is meant to be protected, by out gunning those that wish to deprive you of it.

      • You are wrong. How would the $200 tax stop wealthy gangsters of all people from buying these guns if they were inclined to obey such laws? Keep in mind that at the time they made all those millions trading in a substance that was far more restricted. To the point of practical illegality. Show me the numbers that corolate enactment of that law with a drop in FA usage. You won’t find it. For one they were not common anyway, for another the end of prohibition and the deaths or captures of prominent gangsters did far more to end the era.

    • The machine gun “angst” harkens back to Prohibition, and the era of gangsters like Machine Gun Kelly, Pretty Boy Floyd, Bonnie and Clyde, Babyface Nelson, and so on. What did bank robbers favor when they might cross paths with the police or feds? The Thompson Submachine Gun.

      • Urban mythology, the gun was used by relatively few criminals and was notoriously ineffective. It like the AR and AK became media sensations and laws were passed out of proportion to their actual use by criminals. What would the bank robber use? Revolver? Pistol? Shotgun? Certainly more likely than a gun that cost as much as a car retail and four times that for a clean black market purchase.

  4. yeah because they’re so much crime happening with registered lawfully owned machine guns. Oy Vey the hypocrisy!!

  5. We are working with our reps here to get this fixed ASAP. It is a simple fix, but today is the last day of the session for new bills. There should be no opposition to this one, but the fact the VSP (State Police) asked for this opinion is troubling. I spent the afternoon in committee working on our “shall sign” bill (HR878) and was surprised at the opposition we received from the Sheriffs association and the VSP. The fight is on here in the Commonwealth to stem the blue tide.

  6. Cuccinelli is full of it. The act lists “person” as any of “firm, partnership, association or corporation”. It is obvious the legislature intended to include legal entities in addition to people. It is also obvious that the legislature simply forgot to mention trusts which are in some respects a combination of all the entities that the legislature listed.

    • You’re not wrong, but the established precedent is the law is what is written, not what was intended. Especially, as I pointed out above, when it says one thing in one place and another thing in another place, the courts have to assume that the difference was intentional, not inadvertent.

      There’s a case in the Florida courts now that’s based on that. The law says one thing, but most people are pretty certain it wasn’t meant to say that. They’ve even got transcripts of the floor debate where the people who wrote it, debated it, and voted on it say things that are in clear agreement with the “understood meaning,” but that “understood meaning” and what it actually says are two different things. The court said, in so many words, that floor debate transcripts are not laws, laws are laws, and they have to go by the law.

      • Matt,

        I forget the case or cases involved but I have read about the courts using the transcripts of legislative floor debates to dispel ambiguity in laws. They would not be able to use the debates to contradict a law as passed.

        In this case, unless there were debates on the floor to exclude certain entities, especially trusts, then it is totally appropriate and reasonable for an attorney general or a court to say that the legislature intended to cover all legal entities and the statute would apply to trusts as well.

  7. Don’t federal laws supercede state/city laws in situations like this? Interesting. Learn something new about NFA items almost every day.

    • States can have laws that are more strict than federal laws as long as those laws do not violate the Supreme Law of the Land — the United States Constitution (which includes the Bill of Rights).

  8. I am not sure exactly how the law in question reads, but why can’t we go the other direction? If Virginia is not going to operate such that their law includes trusts, then trusts do not have to register their full auto firearms with the Virginia State Police.

    It is a fundamental basis of law that everything is permissible unless a law says otherwise. Well if Virginia’s law does not forbid trusts from owning full auto firearms AND Virginia’s law does not require “trusts” to register them, then trusts are good to go.

  9. If a trust is not a person then the trust should actually have more freedom than an individual or some other form of “association” other than a trust. A trust does not have the requirement to list “the name, address, and occupation of the person in possession” if it is not a person.

    Also, the word “association” is as general as it gets when it comes to the English language so “trust” does not need to be specifically mentioned. Under this hermeneutic one should simply be able to register a “machine gun” as firm or a corporation.

  10. Sounds like shaky legal reasoning to me. If person is defined as including trusts, then that’s the default standard which must be affirmatively and specifically countered elsewhere if trusts are not to be considered as a person.

    That the legislature specifies for machine gun purposes that a person can also mean corporations, partnerships, etc. is fine, but that’s not enough to overcome the prior default definition of a person as including trusts. If the legislature wanted to exclude trusts, then it should have explicitly done so, not just remained silent on trusts while listing other groupings.

    Moreover, none of those other groupings is capitalized, suggesting to me that they were meant in general senses and not in specific legal terms. “Associations”, for example. Is that a legal term? Sounds generic to me, in which case it would certainly include trusts.

    In any event, so much for the “Virginia is a firearms friendly haven” myth.

  11. A trust is an association and a corporation.

    He’s an idiot, who is deliberately twisting the law he is sworn to uphold.

  12. It is both stupid and wasteful to have to define “person” in every section of law that uses the term. If they wanted to excluded trusts, they should have explicitly said so, as in, “person (except for trusts)…”

    Since “person” is defined elsewhere in state law, that meaning should carry throughout.

    The sheeple have once again elected the mental midgets.

  13. “When the legislature omits language from one statute that it has included in another, courts may not construe the former statute to include that language”

    Funny considering liberals often claim that the 2nd amendment is not an individual liberty despite the fact that the amendment states “The People” and how every other time in the Constitution where “The People” is used it related to an individual liberty…

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