November 2011 Archives: NFA Gun Trust Lawyer Blog  

November 2011 Archives

November 29, 2011

Can a Gun Trust Provide Asset Protection?

New Gun Trust Provides Asset Protection for Firearms Collectors and his or her Family.

Until now, the answer has been that a gun trust does not provide any asset protection for firearms. Today we are announcing a new form of Gun Trust for the Gun Collector that does provide asset protection from creditors of the creator as well as the beneficiaries. This trust has many of the same benefits of our normal Gun Trust and we can even convert your previous gun trust to a new asset protection gun trust.

This trust is not designed for everyone but should be considered if you have a substantial firearms collection.

November 29, 2011

Pistol to Rifle or Short Barreled Rifle: What is permitted and what is restricted under the NFA

There have been many question on converting a pistol to a rifle and back to a pistol. The ATF recently issued a ruling regarding this to help clarify what is permitted and what is not. If you would like to read the full ruling it can be found here. ATF Ruling 2011-4.pdf

In summary the ATF made the following findings.

Held, a firearm, as defined by the National Firearms Act (NFA), 26 U.S.C. 5845(a)(3), is made when un-assembled parts are placed in close proximity in such a way that they:

(a) Serve no useful purpose other than to make a rifle having a barrel or barrels of less than 16 inches in length (e.g., a receiver, an attachable shoulder stock, and barrel of less than 16 inches in length); or
(b) Convert a complete weapon into such an NFA firearm, including - (1) A pistol and attachable shoulder stock; and (2) A rifle with a barrel of 16 inches or more in length, and an attachable barrel of less than 16 inches in length.

Such weapons must be registered and are subject to all requirements of the NFA.

Held further, a firearm, as defined by 26 U.S.C. 5845(a)(3) and (a)(4), is not made when parts in a kit that were originally designed to be configured as both a pistol and a rifle are assembled or re-assembled in a configuration not regulated under the NFA (e.g., as a pistol, or a rifle with a barrel of 16 inches or more in length).

Held further, a firearm, as defined by 26 U.S.C. 5845(a)(3) and (a)(4), is not made when a pistol is attached to a part or parts designed to convert the pistol into a rifle with a barrel of 16 inches or more in length, and the parts are later un-assembled in a configuration not regulated under the NFA (e.g., as a pistol).

Held further, a firearm, as defined by 26 U.S.C. 5845(a)(4), is made when a handgun or other weapon with an overall length of less than 26 inches, or a barrel or barrels of less than 16 inches in length, is assembled or produced from a weapon originally assembled or produced only as a rifle. Such weapons must be registered and are subject to all requirements of the NFA.

November 28, 2011

Scottsdale Gun Club and Holiday Cards with Machine Guns

The Scottsdale Gun Club is inviting families and their children to pose for pictures with Santa Claus - and a high-powered firearm. The photos are $5 for club members and $10 for non-members. Their website states "Santa's Back With His Bag Of Goodies. Get Your Holiday Picture With Santa & His Machine Guns!"guncard2.jpg

November 27, 2011

Silencers and Hearing Damage from Shooting Sports

American Hunter Magazine, received by more than a million subscribers, recently had an article on the benefits of suppressors in relation to hearing. The NRAILA has posted an online version of the has an article on their website. The article discusses the unfair portrayals by Hollywood to show silencers as tools of criminals and assassins. In reality thousands of law-abiding citizens use silencers to protect themselves from the harmful effects of the sound produced by guns. Not only do silencers not make guns silent but they rarely are used by criminals. In Europe suppressors are actively encouraged. They are called "moderators" and are just another accessory for firearms that are widely available and encouraged. Today only 11 states prohibit the possession of silencers while purchasing them in many of the states where they are permitted can be difficult or impossible unless one chooses to use a Gun Trust Lawyer® to form a NFA Trust or a business entity. Even in areas where local sheriffs routinely approve the purchase of silencers there may be significant unforeseen benefits in the use of a Gun Trust. These can include:
  1. Additional co-owners;
  2. Additional authorized users;
  3. Protection from constructive possession;
  4. Protection of the firearms from loss of firearms rights;
  5. Estate Planning and transfer upon death issues related to guns; and
  6. Privacy.
There are many other benefits that can apply depending on your particular circumstances. If you would like to know how a Gun Trust could benefit you, you should discuss your situation and desires with a Gun Trust Lawyer®.
November 15, 2011

Can I make an AR-15 type pistol for my personal use?

We received a copy of the following response dated August 30, 2010 from a reader of the blog that felt that this may be useful to others. If you want to download a copy of the letter it has been provided in a PDF format for your reference ATF Response - AFG on AR Pistol.pdf

The letter states:

This refers to your recent correspondence to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regarding the manufacture of a firearm. Specifically, you asked about the lawfulness of manufacturing an AR-15 type pistol for your personal use. Your letter was forwarded to ATF's Firearms Technology Branch (FTB), Martinsburg, West Virginia, for reply.

As background, the amended Gun Control Act of 1968 (GCA), 18 U.S.C. § 921(a)(3), defines the term "firearm" to include ... any weapon (including a starter gun) which will or is designed to or may be readily converted to expel a projectile by the action a/an explosive ... [and} ... the ... fame or receiver any such weapon....

With respect to the definitions of "handgun" and "pistol" under Federal statutes and regulations, you may be aware that the GCA, 18 U.S.C. § 921(a)(29), defines "handgun" to mean, in part, ... a firearm which has a short stock and is designed to be held and fired by the use a single hand .... Additionally, 27 CFR § 478.11, a regulation implementing the GCA, defines "pistol" as... a weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand, and having (a) a chamber(s) as an integral part(s) of, or permanently aligned with, the bore(s); and (b) a short stock designed to be gripped by one hand and at an angle to and extending below the line of the bore(s).

Please note also that the GCA, 18 U.S.C. § 921(a)(7), defines "rifle" to mean, in part, ... a weapon designed or redesigned, made. or remade, and intended to be fired from the shoulder .... Finally, the National Firearms Act (NFA), defines the term "firearm" to include ... a rifle having a barrel or barrels of less than 16 inches in length ... (and) ... a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches of a barrel or barrels of less than 16 inches in length .... (See 26 U.S.C. §§ 5845(a)(3) and (4))

For your information, per provisions of the GCA, an unlicensed individual may make a "firearm" as defined in the GCA for his own personal use, but not for sale or distribution. Individuals manufacturing a firearm for their own personal use are not required to submit a sample to ATF for approval. However, if the design of the firearm were questionable, it would be prudent for such individuals to seek the advice of ATF prior to manufacture.

Also, based on the GCA, manufacturers' marks of identification are not required on firearms that are produced by individuals for personal use. Nevertheless, ATF recommends the placing of marks of identification on these weapons at the time of manufacture. This procedure would aid law enforcement authorities in identifying the firearm should it become lost or stolen.

With respect to barreling and the assembly of pistols, if individuals utilize a receiver that has never been barreled as a rifle action, they may lawfully assemble a pistol. Such an assembled pistol would constitute a "firearm" as defined in the GCA. If an individual utilizes a receiver that has already been barreled as a rifle action in the assembly of a pistol, such an assembled pistol would constitute a "weapon made from a rifle" as defined in the NFA.

Individuals desiring to manufacture a firearm subject to NFA provisions (machine guns excepted) must first submit and secure approval of an ATF Form 1, Application to Make and Register a Firearm, and pay the applicable $200 making tax.

In your letter, you state that you recently purchased an AR -15 type "stripped" lower receiver with the intention of building it into a pistol; it was shipped as a bare receiver and never built into a rifle. Your specific questions, paraphrased and repeated below, are followed by FTB' s answers.

Question # 1: Am I able to legally construct this lower receiver into an AR-15 type pistol?
A: Yes, since you are utilizing a receiver that has never been barreled as a rifle action, you may lawfully assemble a pistol. However, we advise you to confirm that assembly of such a pistol does not violate any State laws or local ordinances where you reside.

Q #2: Would I be required to register it as an NFA firearm with a tax stamp?
A: No.

Q #3: Do AR-15 type pistols have a restriction on barrel length?
A: No.

Q.#4: Would a 10-1/2 inch or 11-1/2 inch length barrel be allowed?
A: Yes.

Q #5: Can I use standard AR-15 type hand guards on the pistol?
A: Yes.

November 14, 2011

Can I change an AOW to a Shotgun and back to an AOW?

We recently received a copy of a letter dated November 2, 2010 that addressed this issue. The person wanted to know if they had manufactured an AOW with various-length barrels, could a stock and longer barrel be added later for the purpose of hunting or other legal uses.

The ATF first responded with As background, the National Firearms Act (NFA), 26 U.S.C. Section 5845(e), which defines "any other weapon" to include-

... Any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire . Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.

The first question presented to the ATF was

You transfer an AOW firearm that you manufacture to a customer on an ATF Form 4 and he takes it home. The customer then orders a 20 inch 12 gauge shotgun barrel, magazine tube and shoulder stock. He then removes the 10 inch barrel and pistol grip, and installs the 20 inch barrel, magazine tube and shoulder stock. He has reconfigured the AOW into a sporting firearm; can the owner use it for hunting or target shooting?

The ATF determined that this was legally permissible and stated that Federal statutes do not prohibit the reconfiguring of a legally registered AOW firearm into a sporting firearm and then back into an AOW firearm by the owner.

NOTE that the ATF underlined the words by the owner.

The ATF was also asked:

Can a police department that has purchased a 7. 5 inch breaching gun change the configuration by installing a 20 inch barrel and shoulder stock/or a different mission and then reconfigure it back into an AOW?

and the ATF stated that State and local police departments that have a legally registered AOW
can reconfigure the AOW in any manner the mission requires.

November 10, 2011

Can I let someone else shoot my Silencer?

Sharing a SilencerThis is a common question which has two answers. First I will address the legal answer.
The NFA restricts transfers of weapons. Normally we would not think of loaning a firearms or placing it in the hands of another person as a transfer, but under a more complete analysis, letting someone else use your silencer or other NFA firearm, is in fact a transfer and a violation of the National Firearms Act.

The NFA defines a transfer and the various derivatives of such word, to include selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of.

Many individuals incorrectly read the definition to state that loaning is only when otherwise disposing of, but otherwise disposing of is just another action that creates a transfer and is not a requirement of the previous terms or actions that are included in the definition of a transfer.

Prior to a transfer, the owner, trust, corporation, or individual who has the legal title to the NFA firearm, but pay a tax and receive permission to transfer the firearm.

In addition the NFA states that it is illegal to receive or posses a firearm which is not registered to him in the National Firearms Registration and Transfer record, to transfer a firearms in violation of the law, or to receive or posses a firearm transferred (including loaned per the definition of transfer) to him in violation of the NFA.

The NFA requires no intent to violate the law to create a violation.

So perhaps the better question is Should I let someone else use my silencer? I think the clear answer to this is no, unless it is done in a way that does not create a transfer or a violation of the NFA.

Do people let others use silencers? Yes it is common and probably will not result in a penalty, but unlike speeding, which is done regularly, the fines and potential penalties for transferring a firearm restricted by the NFA is very substantial. The instructions provided with our Gun Trust explain these and other related issues involving inadvertent transfers of NFA Firearms.

November 9, 2011

Can I take Title II Firearms back and forth between Texas and Colorado?

Texas Gun Trust Lawyer and Travel to ColoradoWe are often asked about traveling to another state with NFA firearms. If you own property in multiple states like Texas and Colorado or regularly travel between Texas and Colorado with NFA Firearms, you can do so, but should and in some cases must obtain prior authorization from the ATF to take these firearms over state lines.

Note:Texas and Colorado are just used as an example of two places that you may regularly travel to and from. A Texas Gun Trust prepared by a Texas Gun Trust Lawyer® would be valid in Colorado and a Colorado Gun Trust prepared by a Colorado Gun Trust Lawyer® would be valid in Texas

There is no charge to obtain the authorization for interstate travel from the ATF. Your Gun Trust should have specific instructions on how to do this and if it does not you may want to have your gun trust reviewed by an attorney to see if it is a gun trust or just a generic revocable trust. Many so-called "Gun Trusts" and those provided by gun stores, found in the internet, created by software, or even some from lawyers, actually provide instructions to break the law. If you gun trust mentions stocks, property, homes, or other non-firearms related items, it may be a clue that you have a generic trust.

It is possible to amend and restate a generic trust with a Gun Trust from a Gun Trust Lawyer® so that your family and friends can understand what their duties and responsibilities are in the event of your death or incapacity. If you would like your trust reviewed under the NFA for these types of issues, please Contact Us.

November 9, 2011

Gun Trust Lawyer and Funding Your Trust

Gun Trust LawyerFunding a trust is a basic concept that is necessary for a trust to be valid. The legal concept is that the trust does not exist if there is nothing in the trust. A Gun Trust can be funded with a firearm, money, or any other asset. Typically a Gun Trust will be used to acquire firearms and is often used for Title II Firearms. When you put money in or assign money to the trust, you have funded it and it is now valid. If you never assign property to a trust, it can create problems.

For example, if your trust is unfunded, and you purchase a Title II Firearm from a dealer personally you will own it personally. An Assignment sheet may fund the trust, but if the AFT has not approved the assignment or an additional fee is not paid, you may have created a legal problem.

Funding a NFA trust, purchasing NFA Firearms, and proper use of a Gun Trust are very important to understand and something you should ask your Gun Trust Lawyer® about.