Constructive Possession of Silencers and NFA Firearms…Red Hands Not Required

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NFA tax stamp transfer silencer suppressor
Foghorn for TTAG

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 non-registered person being 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 decade or so, we’ve seen explosive growth in the number of these firearms. Consequently the higher profile of NFA regulated items has placed them under greater scrutiny.

They’ve been threatened by proposed executive orders 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 who were ordered to arrest a man 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 even 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 black and white situations. Of course you can’t treat your NFA collection like a lending library. But we’re also not talking about the typical visit to the range when your buddy tries out your silencer under your supervision. T

hose are relatively easy, black-and-white situations. We need to worry about the gray areas 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 work out of state
    • Repairing your home from storm damage, or
    • Moving into a new home

Could you find yourself in any of 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 legal 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-regulated items 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 more quickly.

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, please 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 Attorneys’ clients are gun owners.

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  1. When a 22 can is treated like a SAW. It is time to have the talk.

    When is enough, enough? When you do 10 years with felonies because your AR pistol is in the same safe as your AR rifle?

    Draw the line now or you’ll wish you had later.

    • I’ve heard about people getting in trouble for having both short-barreled uppers, and rifle and lowers in their home. As in, a short-barreled upper in the closet and a rifle in a safe somewhere else in the house. Not attached together into an SBR, just parts somewhere and a rifle somewhere else.

      If the mere ownership of items that together would be a felony, that’s just nuts. Someone could make a car bomb by filling their car with jerry cans and driving it into a wall, right? Are we going to assume that everyone with a car and a few gallons of gas for their lawnmower is in constructive possession of a car bomb?

      Realistically, millions of Americans own both AR rifles and pistols and I’d hazard a guess that few of them are concerned that they’ll end up accused of constructive possession of an SBR. But the potential is there for such a charge if they’re “out to get you” for something else, relax or imagined, and need to tack on additional charges.

      • “Are we going to assume that everyone with a car and a few gallons of gas for their lawnmower is in constructive possession of a car bomb?”

        if it suits them to do so, yes, they will. “is this guy one of ours?” “yes.” “ok, he’s good, let him go. how ’bout this other guy?” “no, that one is on our COL.” “ok then take him down and put him away.”

  2. I just happen to know a guy that is holding a few not on paper machineguns for someone else because they got lawed.
    As in, *ring* “Im in jail get my shit before they do.” This is a trust that will work.
    Nobody needs to know. Out of sight out of mind. Silencers and machineguns aren’t equipped with lo jack,,,,,,yet

  3. Say I have a trust that includes a family member in a distant state.

    How do I legally ship my NFA ‘toy’ to him? Does it require an FFL legal to handle NFA transfers? Or can any FFL do it?

    • If both the Sender and Receiver are legal trustees, one can mail it directly to another with a copy of the Form 4 in the box, even across state lines. No FFL or ATF involvement necessary, as both parties are legally registered owners of said suppressor. All other NFA items require approval before interstate transfers, but can be sent the same way once approved (throw that form in the box too). Direct Signature and insurance highly recommended.

      • Since every individual involved in the physical process of shipping effectively has “constructive possession” of said item- who can be considered legally liable for “possessing” an NFA item?

    • You also need to file a 5320.20 if the toy a machine gun, SBR, SBS, or destructive device. You need one of those if even you are traveling out of state with your toy, regardless of whether you’re letting somebody else play with it. If the shipped toy isn’t coming back for a while, you can either keep filing 5320.20s (1 year limit each time) or do a change of address to show where the toy lives now.

  4. Well 74 humans were shot over the weekend in Chiraq. The chief of po-leece complained the penalties for shootin’ & killin’ ain’t severe enuf. Yet the ATF picks nits like a vengful ex-wife(ask me how I know). Oh and a YouTuber named CRS Firearms(also an FFL) got a nasty visit from the jackboots ostensibly because he supported the auto key card boys. So when is the shot heard ’round the world 2021 gonna get going?

    • Man I like the content that CRS guy covers and I think he is doing important things, but he is the definition of a chuckle head IMO. His delivery and demeanor just leave something to be desired…

      • “…he is the definition of a chuckle head IMO. His delivery and demeanor just leave something to be desired…”

        Pretty much *everything* to be desired.

        It’s flat un-listenable.

        I’ve tried a few times, and have zero interest in trying again…

        • Obviously you love me, as your psychotic stalking clearly proves…. 😉

        • Yep, clicked on his vids a few times. How anyone can watch more than a minute of that is beyond me.

  5. It is time to remove all immunity from Federal officers and US prosecutors.. if they lose these iffy cases, they should be jailed or heavily sanctioned..the citizen shouldnt be the only one facing legal jeopardy..

  6. Are trusts registered in the state of the owners residence ?

    Do such trusts contain the description and serial number of the firearms listed within
    it ?

    Can a trust contain a combination of NFA and non NFA firearms ?

    Why is an IRS tax ID number required ?

  7. They want it complicated. The more complicated it is the fewer the people that will be able to maneuver through the system. And those that make mistakes will be arrested charged and lose their rights. Which is the goal of making things complicated in the first place.

  8. Living in California, I will never know the pleasure or the risks of NFA ownership. People can own them only if they were grandfathered in, and when those persons die, the item has to be transferred out of state. Pretty sad actually. A silencer would be nice.

    • Movie prop companies can own them, I can see it now :

      “Mark N. , Performing Arts Armorer”

      Of course, once the background check points to TTAG, your chances are *gone*…

  9. This is called ADVERTISING. Ethical lawyers are required to LABEL advertising what it is. This is not so labeled. Draw your own conclusions.

  10. There’s no limit to the number of people on a trust. Keep it minimal when applying since responsible parties now need to submit pictures and fingerprints. After you get the stamp, put everyone you would possibly loan an item to on the trust.

  11. I work across the street from nova armament…but I buy my nfa stuff from sterling arsenal. Better selection and much better service.

  12. For the information of those who possess NFA items individually and not on a trust.
    The executor named in the will is legally allowed to possess the NFA items while awaiting ATF approval. No transfer is needed for the executor to take possession.

    A copy of the will naming the inheritor should accompany the form.
    The person inheriting will have to send fingerprints on an FBI form FD258 with the form 5.
    The transfer is free, no $200 tax is required.
    There is no need for the CLEO law enforcement notification either.
    Form 5 approvals are taking about 30 days currently.

    If your wife or child or whoever inherits it wants to sell it, then they will have to fill out a form 4 in the usual fashion and pay the $200 tax along with the CLEO notification.
    And wait the 7 months to a year before transferring it to the buyer in your state.

  13. I suppose that it goes without saying that owners of these weapons will face “vigorous enforcement” of the letter of the law, under the harris-biden regime. Owners of semi-automatic sporting rifles may find themselves in possession of NFA firearms and have to register them or face prison.


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