Constructive Possession of Silencers and NFA Firearms…It’s Complicated and Important

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NFA tax stamp transfer silencer suppressor
Foghorn for TTAG

By Matthew J. Bergstrom, Esq.

We run into a lot of confusion about the handling of another person’s NFA firearm or accessory and when criminal liability could possibly arise. Generally speaking, possession of an NFA firearm or regulated item 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 suppressor. 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 items.¹ When NFA-regulated items 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 can include a prison sentence, hundreds of thousands of dollars in fines, and loss of the right to own or possess firearms.²

Some people say 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, fewer people owned silencers and short-barreled rifles, but in the last decade or so, we’ve seen explosive growth in the number of these items. Consequently the higher profile of NFA-regulated items has placed them under greater scrutiny.

They’ve been threatened by proposed executive orders and more local shooting ranges are likely to ask for 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 in many jurisdictions.

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.

tax stamp detail
Woody for TTAG

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. Those are relatively clear 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 are . . .
    • Hospitalized
    • Vacationing
    • Deployed out of country
    • 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…“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 legal 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 isn’t intended as legal advice. If you have questions or concerns about firearms law, please contact a good attorney.


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. I was advised once that an unused 11” Upper could be used as “Constructive Possession” of an SBR if you have not built your Pistol Lower yet and you own legal AR-15s?

    • Well, if that’s truly the case, I suppose the presence of car keys in your pocket while you’re enjoying an adult beverage with your dinner at a restaurant constitutes intent to drive while intoxicated, whether you’re actually doing it or not, or if your BAC is over the limit or not.

      Because construction…

    • That’s been the wisdom, I believe based on at least one actual court case, for at least the last few years while I’ve been building them. The advice is typically to assemble any new rifle as a pistol first so that it has that “pistolness”* forever, just in case you decide to reconfigure it later.

      * If it is assembled as a rifle first it can’t be remade into a pistol without a tax stamp. If it’s assembled as a pistol first then it can switch back and forth as long as it’s not assembled into an actual SBR with a stock.

    • To avoid constructive intent, you need to have some legal configuration for it. If you have a short barrel and only own rifles, it can be intent since you’re only use for it is to make an unregisteted SBR. If you have a short barrel and a pistol or other SBR that it could go on, then it’s OK, even if it isn’t on the legal receiver at the moment.

  2. OK, here’s a potential scenario :

    I’m out late one night pounding out the miles on my road bike with my ‘Velo-Dog’ (Beretta 21A and a registered and tax-paid GSL ‘Pill Bottle’ wipe can) resting comfortably in my right rear pocket in case a dog sicced by his hick owner tries to chomp on my leg.

    That doesn’t happen (thank God!), but something else does happen –

    I get hit by a car the same way I was 5 years back and am now about to be loaded into another ambulance. In my last ‘experience’, I was relieved of the contents of my pockets by one of the cops responding to the call.

    In Florida, the standard drill is for the local PD to take possession of your firearm if you are admitted to a hospital. When you get out, you go to the local ‘Cop Shop’ and retrieve it. Now, I no longer have possession of the suppressor.

    How does that change when there’s an NFA device involved? Does the local PD just hand it back to you when you ask? Do I call the BATF to report I no longer have possession of it?


  3. Don’t just toss your tax stamp(s) and other NFA documents in your regular gun safe, either. That’s a possible trojan horse that could let F-Troop walk into your house without a warrant. Might be prudent to prepare a separate secure storage location that’s on your property but outside your home proper for that purpose. With the waiting period as long as it is, you’d have plenty of time to set it up.

    • How can it be a Trojan horse if you have the proper paperwork? I don’t believe having NFA paperwork gives anyone the right to walk into my house without a warrant.

      • If you must open your safe to get the paperwork, you have an uninvited audience in your gun safe.

        Lord only knows what else is in there……amairite?

        • Then don’t let them through the front door while you get the paper work. Without a warrant, they have to have your permission to enter. Unlike Australia, where the police have the authority to enter to inspect your secure gun storage.

        • amairite?

          Did you read what I wrote?

          I don’t believe having NFA paperwork gives anyone the right to walk into my house without a warrant.


    • An agent can request to see your stamp.
      So shut the door, go get it, bring it back, shut the door behind you.
      They need a warrant if they want to get into the house or see the contents of your safe.

    • And if the bank goes under and gets taken over by the Feds for financial reasons? How many banks have failed, and customers have lost access to their boxes?

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

    Ironic that the author anticipated this concern but didn’t bother to make it read more like an article than an ad by citing incident(s) that had actually happened rather than “Imagine one of those scenarios happens at the wrong place and at the wrong time.”

    Kinda reminds me of “The Office” episode where a burly Italian insurance salesman employing these tactics is assumed to be a Mafia extortionist.

    • Yes, I agree much scare tactics to sell their NFA trust. Mixes many different scenarios; brother with your silencer, yes actual possession if your not with him. Wife with with combo to safe ridiculous (if this were true anybody in home where NFA weapons are stored could be charged with constructive possession at any time which has NEVER happened). Gives no actual cases and is primarily hype to sell.

      • “Wife with with combo to safe ridiculous”

        Hilariously so. What are they going to do?

        I’d love an article with the actual facts. For instance, the number of times these have actually happened (zero or nearly so, as you said) vs. the number of times divorcing, cheating, or just plain angry trustees have exercised their “rights” under the trust to fvck over the person who earned trust property (which happens all the time).

        Many people complain about the internet because anonymity empowers us to offer honest opinions rather than hollow social platitudes, but I love it for precisely that reason. It takes “peer review” beyond the ivory tower, to force every would-be writer to defend disingenuous claims against absolutely anyone who has access to a computer.

  5. Instead of jumping through hoops like silly circus animals how about abolishing Gun Control like its sidekicks slavery, lynching, etc?

    Pull your heads out of your butts and look at yourselves…where to keep paperwork, Big Brother coming in your home, leaving something in your range bag, is the barrel an inch too long or an inch too short, etc. It’s shades of fear Blacks had for the kkk and Jews had for brown shirts.

  6. Don’t forget constructive possession includes what some BATF agent thinks might be parts or pieces that could be conceivably be readily assembled into a suppressor or other NFA item. Intent or actual purpose be damned.

  7. Who’d You Talk To?’: Jim Jordan Grills Gun Control Activist On Possible Talks With Biden Admin (in current comittee hearings on ATF unconstitutional and illegal actions).

  8. “A skillful law enforcement officer could unexpectedly discover a way to throw the book at you with the simplest line of questioning.” This is why you don’t answer questions”

  9. In Texas, state law prohibits enforcement of the Supressor registration by the Feds if the supressor is made in Texas and is used only in Texas. Our states that are not run by marxists need to pass laws nullifying the unconstitutional over reaches of the fed.

  10. What pisses me off is that we don’t get an actual tax stamp anymore. All we get is a .pdf of it.
    I bought a Q Trash Panda and what I found out from the FFL and others including the ATF when checking, they don’t give those out now.

      • To me it’s a positive development. I always heard (though that could have been internet FUD as well) that LE could require you to show your original tax stamp if they saw you with an NFA weapon. The idea of having to bring a priceless, unique, irreplaceable (and very perishable) defense against a ruinous felony conviction out in the sand, wind, mud, etc. never thrilled me.

        • Umm
          My concern as well as I like to be able to show absolute irrefutable proof of such things. As it is, I carry a printed copy stuffed up the handgrip and have copies uploaded to my Google Drive, which is easy to access from my phone, virtually everywhere.

          However, being cognizant that most cops aren’t particularity bright, being informed with as much information as possible is the best defense against the ignorant. I can show a copy, and I can show a pdf of the original and explain that when a person e-files, they no longer get a actual hard copy. If they want to be schmucks, I’ll have to deal with it then.

        • MLee,
          Sounds like a great plan! I agree that most [local] cops aren’t that well-informed about the requirement (before or after the change), but the fact that the SMEs now know to expect an easily replaceable piece of printer paper makes things a bit easier IMHO.

      • Yes William
        After checking again, if you file efile, you get an e tax stamp, or in a .pdf
        If you file paper, then you get a paper tax stamp.
        When I did this a year ago, right when they started the new efile, they didn’t explain that, not that I would have done paper anyway.

  11. Constructive possession is a fictitious made up philosophical bit of crazyness for the purpose of being used as a weapon against the enemies of communists.

    Anything can be made from just about anything. Human industrialization and all advancement exists because we possess things that we have constructed. Wether it’s computers, cars, or guns. All I need is the skills, resources, and enough imagination and I can spend a few days collecting aluminum cans from the side of the road and melt them down to make an AR15. This is infact how we ended up with all this in the first place. We poses it because we constructed it. If we are to make this process illegal then we consign the human race to stagnation and eventual death.

  12. Most people forget, when police contact you in a public place, not your home, they have to have reasonable suspicion that you are a witness to a crime and can legally temporarily detain you and if so they can obtain your name, DOB and address of residence. This is not considered “Unreasonable” when they are investigating a crime or the complaint of a crime. Now in order to take you into custody and or arrest you, They need “Probable cause” which means facts or circumstances within a officers realm of knowledge that in itself would cause a reasonably prudent person to believe that a crime has occurred, is occurring or is about to be committed and you are involved. . Example: Officer see’s four men all armed, face masks and armed with long guns exit a vehicle and run into a bank. It would be reasonable to anyone to deduct that they entered to commit a crime, not to open a new account. Facts and circumstances of a crime.
    So, when contacted by the police do not talk to them and don’t answer questions. I.D. yourself and be polite. Ask: Am I under arrest?. if so an ask for an attorney and say nothing. If not under arrest, then say thank you, and “I will be leaving now”. The worst thing you can do is to be an asshole and confrontational. This behavior will become disorderly very quickly and now they have a reason to arrest you or detain you. Why? you ask?. Imagine if you are illegally detained or arrested, months later in court, do you want testimony disclosed that you were angry out of control and they presumed you would assault them or have testimony that you were friendly and cooperative. If stopped on a traffic stop, roll down your window, give them your license, reg and ins information. be polite. in most cases good behaviour leads to warning, being an A-hole results in a ticket and talk about being on the lookout for you and your car during their coffee break because you are an A-hole. Most criminals are A-holes. Now you are on the radar.
    If they come to your residence, Be polite and go outside. Never let police in your house without a search warrant. Never let them walk around the side or back your house if that is private property. This is considered curtilage, A officer may park in front of your house and walk to the front door , like what a mail delivery person can do, but not walk around in your driveway looking through the windows of a vehicle or carport area that is not inline with a simple route to the front door. This outside area is considered Your “Curtilage” and off limits to people. Again don’t be an asshole, but if you think your “Curtilage” has been violated, get the officers names. Driveway surveillance cameras are also good for this. There are exceptions, if they are chasing some guy that just shot up a Mcdonalds and chase him across your back yard, this is reasonable. Again, don’t be an A-hole.
    Again, be professional, Be polite and have a plan to deal with everyone you meet. Yea, I revised that. Your mileage may vary.

  13. Constructive possession is a trap. It makes being a machinist, or even a mechanic with tools, owning a firearm almost a Catch-22. The courts really should have ruled constructive intent illegal decades ago. Until they do, it will exist as one of many ways the government can get you on “something” when they decide they need to “get you”.

  14. “[…]but with knowledge and proactive solutions, no one should be discouraged from plans to obtain a .22 can or even a machine gun.”
    Knowledge of the ATF and their blatant, continued disregard for the rule of law, along with bullying done to friends who are FFL holders has discouraged me from owning any NFA items or a Curio & Relic license. The NFA itself was originally conceived as an outright ban (including on handguns, which led to the category of SBR/SBS’s to prevent a workaround of a handgun ban) and only later converted into a then-outrageously expensive tax as a de facto ban. Registering anything NFA related with the Federal Government is giving them a foot in the door towards potential confiscation.

    My knowledge of the Hughes Amendment (as I was born a few months after it in 1986) has discouraged me from ever owning a machine gun, as the permanent ban on new civilian-ownable MG’s has made them too expensive for me to ever conceivably own.

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