As he was editing my post yesterday, our <begin gratuitous suck up> esteemed, heavily overworked and vastly underpaid editor, Dan Zimmerman </end gratuitous suck-up> noted my comment about how loaning an NFA item might be considered a constructive transfer that the ATF could prosecute should they choose to. He asked me to elaborate on the topic. This particular issue regularly rears its head on the various firearms board and quite frankly there is no really good answer. I was made aware of the issue by the attorney who set up my NFA trust and the question of bias in the matter is certainly a good one. It came up after I had already paid my fee, so one could argue that in my case there was less of an incentive to use it to “sell” me on something that I had already bought . . .
The question arose as we were discussing who should be a trustee on my trust. I mentioned that I sometimes take some friends shooting and the lawyer pointed out that it could be argued that if I loaned them my suppressor, SBR, or once I win the lottery, that H&K MP5 that I am lusting after, even if I was standing next to them, the ATF could conceivably view it as a constructive transfer and make things very uncomfortable for me. It immediately occurred to me that the local gun range had a nice collection of full auto weapons that they are more than happy to rent to whoever walks through the door and I inquired as to how they can do this legally.
“They can’t” was the answer. Now, while I don’t know the owner of the range personally, I do know him by reputation and he is a fairly meticulous guy. I happened to be at the range later that day and was talking to some of his more knowledgeable employees and the subject of gun trusts came up. The employee told me that the lawyer the range uses was a pretty good one and that he would be happy to set up a Gun Trust for me for only $500 – A 30% savings over what the Apple Law Firm wanted to charge me, so I was certainly interested.
I went to the firm’s site and read the lawyer’s professional profile. Unfortunately his stated expertise was personal injury law. Nowhere did his profile mention his firearms credentials. It seemed to me that if this guy was such a hot shot attorney in the gun world, this would have been featured prominently in his profile. By comparison, the local attorney used by the Apple Law Firm has a well established reputation in firearms litigation and in fact had written a book on the state gun and knife laws. With this in mind, it made me somewhat question the quality of legal advice that he might be in a position to offer on firearms laws.
So, I decided to do some digging on my own. No, I’m not an attorney. Aside from a couple of graduate degrees in IT and Business, my undergrad work was actually in English, so I have a fair amount of experience reading things and grasping both the overt and implied meanings. I therefore decided to refer directly to the source documents on NFA legislation, which can be found in the official NFA documentation on the ATF website concerning transfers
The first thing that set off some warning bells in my mind was the official definition of transfer which reads, “The term “transfer” is broadly defined by the NFA to include
“selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of” an NFA firearm.” Whenever a government document states that something can be “broadly defined” I get really nervous. Broad definitions can be read in different ways by different people. Should you find yourself in a courtroom, getting to a specific interpretation of a specific situation means, if nothing else, a lot of lawyer time and money.
Section 9.5 goes on to define specific situations that the ATF does not consider transfers. These include transferring the firearm to an FFL/SOT holder who is going to make repairs on the NFA item as well as the ability for any employee of said FFL/SOT holder who handles the NFA items and who handles said items “for purposes within the employee’s scope of employment and for the business purposes of the FFL/SOT.” This section is of particular interest because on some of the board posts I have read, people have suggested that because you can give an NFA item to a gunsmith, obviously it must be okay to loan your NFA item out as long as you are present the whole time.
No one disputes the contention that loaning it to your buddy to use for the weekend is not okay. The fact that the ATF handbook specifically addresses the question of giving your NFA item to an FFL/SOT for repair but remains silent on loaning it to friends makes that argument somewhat questionable. Furthermore, the handbook also suggests that completing a Form 5 is recommended before conveying your NFA item to a gunsmith, but it is not required.
So, where does this leave us? Are you going to get in trouble for letting your buddy use your NFA item? Are firing ranges that rent machine guns in violation of the law? Well, as in most things having to do with federal regulations, there is no clear answer. The fact that no one has ever been prosecuted in the past is no guarantee that prosecution in the future won’t happen. If you are prosecuted, you might ultimately prevail, but how much money will it cost you to fight it in court?
What is true is that there are a whole lot of laws that are not actively prosecuted. You’ve probably seen your local paper run one of those stories about all the silly little laws that are on the books in many jurisdictions that are never prosecuted. The Simpsons even did an episode on the topic a number of years ago where Mr. Burns bought an unused convention hall in Springfield and turned it into a prison. He was losing money, so he prevailed upon the local police to start enforcing all of the silly laws that were on the books in order to arrest more people to fill his prison. Homer gets arrested for violating the law that states kicking a can three times is an arrestable offense and gets tossed in jail for it.
As silly as it sounds, the possibility of something like that happening does exist. President Obama is certainly no friend to the gun rights community. While it would be difficult for him to pass new laws restricting firearms, is it such a stretch to suggest that he might someday use tools like this to impose new restrictions?
Any honest study of recent past Presidents – both Republican and Democrat – suggests that under-the-wire expansion of federal powers is a tool that they are not afraid to use. It is worth considering that vagueness in federal and state laws can and has been exploited in the past to advance agendas. The point that the Apple Law Firm made in their documentation accompanying my trust was that if at some point in the future the ATF decided that they wanted to cull the number of registered NFA items available to the public, this would be a great way to do it, so it is best to err on the side of caution.
Once again, where does this leave us? Well, for me, I certainly would not want to find myself in a position where I run afoul of new enforcement, so I’m going to watch this closely. It probably won’t stop me from letting a friend use a silenced weapon or SBR, but I might be careful in which venues I choose to do this. Furthermore, I’m not too clear on who would ultimately bear the liability should I choose to rent a machine gun. Chances are, the Feds would most likely go after the range that rented me the weapon, but the possibility exists that I could face a charge of illegal possession of an NFA item should a raid happen the day I’m at the range.