The ATF May Have Accidentally Thrown Open the Machine Gun Registry

Courtesy Nick Leghorn for TTAG

Ever since the 1980s, new machine guns have been forbidden from being transferred to anyone except licensed dealers with special permission from the local constabulary. It’s a de facto machine gun ban, since the existing civilian-legal machine guns have become so expensive to own that only the very rich can afford them. With the recent spike in interest in NFA items and the advent of gun trusts the ATF (at the request of the White House) has been looking for ways to “crack down” on trusts without the inconvenience of congressional action. According to one lawyer, a recent ruling by the ATF may have accidentally opened the door for trusts to make and register brand new machine guns. . .

From the Princelaw blog:

On March 17, 2014 (yes, almost a year later), Helen L. Koppe, Chief, Firearms Industry Programs Branch, responded. You can find a copy of the response here. ATF determined that “Unlike individuals, corporations, partnerships, and associations; unincorporated trusts do not fall within the definition of “person” in the GCA.” And therefore, as a result,

Because unincorporated trusts are not “persons” under the GCA, a Federal firearms licensee (FFL) cannot transfer firearms to them without complying with the GCA. Thus, when an FFL transfers an NFA firearm to a trustee or other person acting on behalf of a trust, the transfer is made to this person as an individual (i.e., not as a trust). As the trustee or other person acting on behalf of the trust is not the approved transferee under the NFA, 18 U.S.C. 5812, the trustee or other person acting on behalf of a trust must undergo a NICS check. The individual must also be a resident of the same State as the FFL when receiving the firearm.

So, ATF, trying to be cute and find a way to require NICS checks without Congressional action, declared trusts not to fit the definition of a “person” under the GCA. No big deal, especially for us in Pennsylvania, as Pennsylvania Instant Check System (PICS) checks are already required for all NFA firearms, except silencers. But, not so quick…let’s look at Section 922(o) of the Gun Control Act…

Section 922(o) provides:

(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to–
(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

So, we have a prohibition on any “person” transferring or possessing a machinegun which was not lawfully registered before May 19, 1986. BUT, an unincorporated trust is not a “person” under the GCA, so this provision cannot apply to it.

In turning to the National Firearms Act, as amended, 26 U.S.C. 5801, et seq., we find that a “person” is defined as including a trust, pursuant to 26 U.S.C. 7701. Yet, there exists no 922(o)esque provision in Section 5801, et seq.

Therefore, pursuant to 26 U.S.C. 5812 and 5822, an unincorporated trust may lawfully transfer and make machineguns, as it is not a “person” for purposes of the GCA and Section 922 only applies to “persons” as defined by the GCA. And yes, this opens up a lot more issues for ATF in relation to the purchase of firearms by trusts under the GCA. Someone isn’t likely to be employed much longer…

I will continue to update our viewers, as I have already submitted a Form 1 Application for a minigun…oh hell yeah I did…

I love the idea that the ATF, in trying to be bigger dick-tators than they already are, may have accidentally opened the flood gates for machine guns to flow like fine champagne once more.

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