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 —
- 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.