June 3, 2014

Can I Hunt in Florida with a Suppressor (Silencer)? Updated

To answer this question you must look a the Florida Statutes and Florida Administrative code. While Florida Law does not specifically grant the right to use a suppressor while hunting in certain conditions, you must remember that laws do not grant rights they restrict them so by interpreting what rights you do not have, you can determine what is left.

In Florida there are four classifications of land:

  1. Wildlife Management Areas;
  2. Wildlife and Environmental Areas;
  3. Public land that are not classified as Wildlife Management Areas or Wildlife and Environmental Areas ; and
  4. Private land.

You may not take GAME animals (mammals or birds) or Crows with a suppressor or machine gun on any type of land. Per FAC 68A-12.002

You may not take wild hogs on Wildlife Management Areas and Wildlife Environmental Areas (per FAC 68A-15.004 and 68A-17.004), but can use a suppressor to take other non game animals such as furbearers unless prohibited to be hunted the area brochure or the area brochure prohibits the use of suppressors.

Game animals include Resident Game Birds, Resident Game mammals, Migratory Game Birds and Protected Mammals.

See http://myfwc.com/hunting/regulations/taking-game/

Neither Florida Law nor Florida Administrative Code restricts the use of suppressors (silencers), on private land, to take varmint, furbearers, non native game animals. In addition, suppressors can be used to take wild hogs on public land that is not classified as a Wildlife Management Area or Wildlife and Environmental Area.

Here are some definitions that will help make sense of these two statements.

  • Game birds --Wild turkey, quail, rails, snipe, woodcock, ducks, geese, brant, dove, coot, common moorhen, and non-native species generally considered game such as pheasant, chukar partridge, and coturnix quail.

  • Resident game mammals --deer, gray squirrels and rabbits

  • Furbearers --bobcats, otters, raccoons, opossums, coyotes, beavers, skunks and nutrias

  • Migratory game birds --ducks, geese, common moorhens, coots, snipe, rails, woodcocks, mourning doves and white-winged doves

  • Protected mammals --Florida black bears, fox squirrels and Florida panthers cannot be taken or pursued.

Suppressors can be used on private land in Florida to take some animals as indicated above. Suppressors (silencers) should not be used to take any Game animal (mammal or bird) crow, or wild pig in a Wildlife Management Area or Wildlife and Environmental Area and non game animals (wild pigs or furbearers), may be taken on other public land that is not classified as a Wildlife Management Area or Wildlife and Environmental Area.

May 30, 2014

Louisiana Hunting with Suppressors legal effective August 1, 2014

Yesterday, the Governor of Louisiana signed House Bill 186 into law. This law will legalize the use of suppressors while hunting for all game and non-game animals in the state of Louisiana. The law is effective August 1, 2014. The current trend in the United States is to legalize the use of suppressors while hunting. Over 30 states now permit the use of a suppressors while hunting either game or non-game animals. This year, three states, including Georgia and Alabama have legalized hunting with suppressors and give hunters the ability to protect their hearing.

The ASA reports that a similar measure is in progress in Ohio. Louisiana statute even allows for the use of suppressors while hunting non-game animals.

Under the National Firearms Act, an individual, trust, or business entity may purchase a suppressor. A Gun Trust is designed to allow for multiple people to be in possession of the suppressor which is not allowed with an individual purchase. In addition, a purchase by a Gun Trust can speed up the process by removing the necessity to obtain a CLEO sign-off and when the ATF brings back electronic filing, a Trust application for a Form 4 purchase from an FFL can be filed electronically which can reduce the time for approval.

A Gun Trust can be designed and used to purchase and own all types of firearms, even those not restricted by the NFA. To find out more about how a Gun Trust can help you, contact a Gun Trust Lawyer®

May 27, 2014

ATF Updates 41P Final Action Date: No Changes for Gun Trusts Before 2015

Late in 2013, the ATF published a notice that they intended to seek to revise the regulations regarding the documentation that is required for a Gun Trust and for a business. After the ATF received more than 9500 comments on the proposed changes, the ATF had originally announced that a decision was set to be published in June of this year. As the June date has approached, we have reported that it was unlikely that the ATF would actually be able to review and respond to the comments by the June date and that the ATF was not likely to be able to respond until 2015.

In the latest publication of the Semi-Annual Regulatory Agenda, ATF updated the date of the projected date to show that ATF does not expect to publish a final rule until 2015.

DOJ/ATF RIN: 1140-AA43 Publication ID: Spring 2014

Title: Machine Guns, Destructive Devices and Certain Other Firearms; Background Checks for Responsible Persons of a Corporation, Trust, or Other Legal Entity With Respect to Making or Transferring a Firearm

Abstract: The Department of Justice is planning to finalize a proposed rule to amend the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regarding the making or transferring of a firearm under the National Firearms Act. As proposed, the rule would; (1) add a definition for the term "responsible person"; (2) require each responsible person of a corporation, trust or legal entity to complete a specified form, and to submit photographs and fingerprints; and (3) modify the requirements regarding the certificate of the chief law enforcement officer (CLEO).

Final Action 01/00/2015

This is great news for those who are wanting to get a Gun Trust from a Gun Trust Lawyer® and have the opportunity to file electronically. As you may know, the ATF has removed the ability to file a Form 1 and Form 4 electronically, but expects to have it back up in the short term as they make changes to the system to handle the huge number of electronic submissions.

May 20, 2014

Engraving Requirements including City and State Clarification

Recently, I had an electronic version of a Form 1 approved by the ATF for my Gun Trust and wanted to clarify what is required for engraving.

ATF 5300.4

In 27 CFR 479.102 (page 92) describes what is necessary to engrave on a SBR or SBS when one is manufacturing. This is not necessary if you purchase one that is already manufactured as it will have been done for you.

1) On the Frame or Receiver the Serial number;
2) on the frame, receiver, or barrel the following additional information;
A)The model;
B)The caliber or gage;
C)Your name or name of the Trust in the case of a Trust (no abbreviations are permitted for the Trust name);
D)The city and state (you can abbreviate the state with the official 2 digit state code)
The above mentioned information must be engraved, casted, stamped (impressing) or otherwise conspicuously placed or caused to be engraved, cast, stamped (impressed) or placed to a minimum depth of .003 inch and in a print size of the Serial number shall be no smaller than 1/16 inch.

As an interesting side note, my gun was manufactured in Jacksonville, FL so the city and state were already engraved. When I asked ATF, if I needed to engrave Jacksonville, FL, they said yes and pointed me to an ATF Ruling on adopting identification of FIrearms from 2013.

May 15, 2014

Did ATF Accidentally Open the Machine Gun Registry for Gun Trusts

Based on the ATF letter requiring NICS checks for Trusts, the ATF may have accidentally opened the registry for new Machine Guns when registered in the name of a trust which is not a person under the GCA.

The Prince Law Blog quotes the same letter I wrote about a few days ago where the ATF determined that "Unlike individuals, corporations, partnerships, and associations; unincorporated trusts do not fall within the definition of "person" in the GCA." And therefore, as a result,

Because unincorporated trusts are not "persons" under the GCA, a Federal firearms licensee (FFL) cannot transfer firearms to them without complying with the GCA. Thus, when an FFL transfers an NFA firearm to a trustee or other person acting on behalf of a trust, the transfer is made to this person as an individual (i.e., not as a trust). As the trustee or other person acting on behalf of the trust is not the approved transferee under the NFA, 18 U.S.C. 5812, the trustee or other person acting on behalf of a trust must undergo a NICS check. The individual must also be a resident of the same State as the FFL when receiving the firearm.

So, ATF, trying to be cute and find a way to require NICS checks without Congressional action, declared trusts not to fit the definition of a "person" under the GCA. No big deal, especially for us in Pennsylvania, as Pennsylvania Instant Check System (PICS) checks are already required for all NFA firearms, except silencers. But, not so quick...let's look at Section 922(o) of the Gun Control Act...

Section 922(o) provides:

(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to-
(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

So, we have a prohibition on any "person" transferring or possessing a machinegun which was not lawfully registered before May 19, 1986. BUT, an unincorporated trust is not a "person" under the GCA, so this provision cannot apply to it.

In turning to the National Firearms Act, as amended, 26 U.S.C. 5801, et seq., we find that a "person" is defined as including a trust, pursuant to 26 U.S.C. 7701. Yet, there exists no 922(o)esque provision in Section 5801, et seq.

Therefore, pursuant to 26 U.S.C. 5812 and 5822, an unincorporated trust may lawfully transfer and make machineguns, as it is not a "person" for purposes of the GCA and Section 922 only applies to "persons" as defined by the GCA.


Before anyone rushes to complete a Form 1 to make a new machine gun, they should understand that the ATF will likely reject this and if they want to push the issue they should be expect to litigate the issue. Even if litigating there is no guarantee of prevailing.

That being said, I believe I will submit a Form 1 for permission to manufacture a new machine gun along with a memo regarding the issues so that the opportunity to litigate the issue would be available after an expected rejection.

May 5, 2014

Does a Trust need a NICS check under the NFA and GCA?

One of the most common questions Class 3 SOT Dealers ask has finally been addressed by the ATF and should help clear the inconsistent answers given by local ATF offices.
Is a NICS check required when a Gun Trust is used to purchase firearms that are subject to the NFA?

Short Answer: Yes.

Below we explain why we believe that a NICS and 4473 were previously required even if local ATF agents told dealers otherwise. We raised this issue in our Comment to 41P. Perhaps ATF is paying attention to some of the comments that were filed in response to 41P.

ATF's letter seems to be an interesting admission that appears to contradict their statements as to why the suggested changes mentioned in 41P are necessary.

We have always thought that the 4473 and NICS check should be done when a Gun Trust is used to purchase NFA firearms. Unfortunate there have been many who have reported that dealers were not required to do a NICS check (background check) and only required to complete a 4473 for Gun Trusts. Much of the medias outrage over background checks not being completed for Gun Trusts was over this very issue.

The confusion comes from the instructions on the back of the 4473 form where it states that no NICS check is required for a "person" when purchasing a NFA firearm.

A "person" under the GCA is not defined to include a trust. Under the GCA, 18 U.S.C. § 921(a)(1), a "person" is defined to include "any individual, corporation, company, association, firm, partnership, society, or joint stock company." This is different than how a person is defined under the National Firearms Act - "an individual, business entity, or trust". ATF states in their letter that:

ATF has interpreted the GCA exception in sections 922(t)(3)(B) and 478.102(d)(2) to mean that firearms transfers are exempt from a NICS check when they have been approved under the NFA to the person receiving the firearm. Unlike individuals, corporations, partnerships, and associations; unincorporated trusts do not fall within the definition of "person" in the GCA.

Because unincorporated trusts are not "persons" under the GCA, a Federal firearms licensee (FFL) cannot transfer firearms to them without complying with the GCA. Thus, when an FFL transfers an NFA firearm to a trustee or other person acting on behalf of a trust, the transfer is made to this person as an individual (i.e., not as a trust). As the trustee or other person acting on behalf of the trust is not the approved transferee under the NFA, 18 U.S.C. 5812, the trustee or other person acting on behalf of a trust must undergo a NICS check. The individual must also be a resident of the same State as the FFL when receiving the firearm.

When purchasing an NFA firearm, the person acting on behalf of the trust will complete the ATF Form 4473, items 1 through 10b with his or her personal information. Item 11a "Are you the actual transferee/buyer of the firearm(s) listed on this form?" should be answered "YES". The transferor will conduct the NICS check and complete Items 21a though 21c and Item 21d, if applicable. Item 22 will be left blank, as the transaction is not exempt from the NICS check.


As confusing this may seem, it is really quite simple, an individual does not need the NICS check because of the CLEO signature, and the FBI background check that is run on the fingerprints that are submitted with the ATF Form 4 or Form 1. A Trust, on the other hand, does not need fingerprints or the CLEO and thus the NICS check is required because it is the modern equivalent of the CLEO and fingerprints.

In summary, here is what is ATF is stating is required when a Gun Trust or an individual uses an ATF Form 4 to purchase a NFA Firearm:

Gun Trusts - 4473 and NICS
Individuals - CLEO, Fingerprints, photographs, 4473, no NICS
(As of May 6th 2014)

If your Class III SOT is not doing a NICS check along with the 4473 when a Gun Trust purchases a NFA firearm you might let them know about the ATF letter below. I am sure ATF will starting looking at these records with inspections in the future.

If you would like a full copy of their letter to Dakota Silencer it can be downloaded here ATF NICS & 4473 Trust Response Letter.pdf

May 4, 2014

Alabama legalizes hunting with Suppressors Effective Immediately

On Friday May 3rd, Alabama voted unanimously to repeal the prohibition of the possession and use of suppressors or silencers while hunting for all game and non-game animals. As of Friday May 3rd 2014, it became legal to possess and use a suppressor while hunting.

The majority of states now allow hunting with a suppressor. Alabama will be the 32nd and on July 1st Georgia will become the 33nd.

It shall be unlawful to possess fully automatic firearms or silenced firearms while hunting any species of wildlife.

Louisiana and Ohio have similar changes to the law int he works and it may become legal to use suppressors while hunting in those states later this year. Watch this blog for updates to other states regarding the use and possession of suppressors.

If you are thinking about purchasing a suppressor it is important to remember that only individuals, business entities, and trusts can purchase them. Of these there are many benefits to using a Gun Trust which include the ability to have multiple authorized users and the ability to help protect your family and friends from accidental transfers through actual or constructive possession as well as the ability to give someone the ability to determine when and if family members who survive you would be appropriate to receive the firearms restricted by the NFA.

April 25, 2014

Suppressors Legal for Hunting in GA as of July 1, 2014

This week the Governor of Georgia signed a NRA and ASA backed House Bill into law. It is one of the most comprehensive gun bills to pass in the state of Georgia. Included in the bill is a provision to legalize suppressor use while hunting. The law will go into effect on July 1, 2014.

Once the law goes into effect, Georgia will become the 32nd state in which civilians can use suppressors while hunting. Of those states, only Louisiana and Montana do not allow the use of suppressors while hunting game animals.

asa_edu_map_0416141.jpg
(Map from American Silencer Association's website

The primary role of a suppressor is to reduce the overall sound signature of the host firearm to hearing safe levels. They do so by trapping the expanding gasses at the muzzle and allowing them to slowly cool, in a similar fashion to car mufflers. Their muffling capabilities intrinsically make them a hearing protection device for both the shooter and those around them.

April 25, 2014

ATF eForms Back online Today and how to obtain a copy of your electronic Form 1

Today I decided to check ATF eForms and it was back online for Form 6's. The good news is it does show the status of previously submitted eForms. I was able to to see that a Form 1 I submitted at the end of November of 2013 was approved today. When ATF emails you confirmation of the approval it does not send you a copy of the form at the same time. If you want one or to make a electronic copy of the approved form, you can click on the approved forms section, then select the form by clicking on the one you want to view.

approved.jpg

Next click the eye all the way at the right of the listing one you want.

Eye.jpg

Then you can select the View Form and PDF of the approved form will show in your browser or it will be downloaded.

View Form.jpg

While this may seem complicated, its not that hard and will allow you to make an electronic copy of your Form 1 and let you start shooting on the day you get the confirmation from the ATF

We also heard that ATF may have all functionality to eForms restored within 20 days which would be great news for those with Gun Trusts wanting to submit electronically.

April 17, 2014

ATF eForms back online within the week

Today Marvin G. Richardson, Deputy Assistant Director of the ATF Enforcement Programs and Services sent a letter stating that ATF eForms is expected online this week.

  • The ATF has reduced the backlog of applications from 80,000 to 73,000.
  • Adding 15 additional staff to help process NFA applications
  • Cross training an additional 15 staff to assist in NFA processing
  • Prioritizing Form 3 and Form 4 paper application processing while eForms is being bolstered
  • Hired a private company to assist in enhancing the functionality of eForms
  • Will limit maintenance to Wednesdays
  • Will bring eForms back online for Form 6 and 6A.
  • Will allow Forms 1,2,5,9,5300.11 and 10 online over the next few weeks
  • Allow Form 4 and Form 1 processing in a new and improved eForms in the short-term
In the letter he states that electronic submission saves over 3 month in processing time, but I have personally seen that it can save a year in some cases. He further states that NFA applications re up over 380 percent in the last few years from 41,600 in 2005 to 199,900 in 2013. Many of these new applications have been because of new laws in many states legalizing suppressors and short barrel riffles. Gun Trusts have made these items available to many who live in areas where the CLEO will not sign a Form 4 or Form 1. To find out more about how a Gun Trust can help you protect your family and friends from violations of Gun Laws contact us.

This is good news and it looks like ATF is interested in maintaining eForms into the future.

April 17, 2014

Status Update on 41P

The Americans Opposed to ATF 41P reported today that the American Silencer Association has talks with the ATF during the Shot Show where the ATF stated that they never anticipated the number of comments to 41P that they received and only had one person working part-time on addressing the comments. At that time ATF anticipated that it would take a year or two before they were able to determine whether they were going to move forward and if so to what extent they would try to implement any changes.
There were several major comments to 41P including ours that can be reviewed at http://www.GunTrustLawyer.com/41p.html which should be able to challenge the ATF if the ATF should try to implement the changes because of the numerous violations of the Administrative Procedures Act.

So what does this mean?
We are still recommending purchasing what you think you may way sooner rather than later in case changes are made. While a challenge to the changes may be successful, there is no guarantee that it would be. The good news is that the June 1st date that everyone has been anticipating may come and go with no announcement or just a new self imposed deadline. On the other hand, the ATF may have devoted more resources since the SHOT show and may try to make an announcement in June. We are about 6 weeks away from knowing more and as we find out more or see others reporting on this issue we will keep you updated. We have been hearing that there has been a substantial increase in the number of NFA firearms that are being sold and supplies within the dealers are starting to become constrained. With the ATF removing access to the electronic filing of ATF forms, the time to replenish the supply, get permission to manufacture more, and time to obtain approval of Form 4s and Form 1s will probably increase. There is a chance that the ATF will resolve the issues with the electronic filing and this could create an opportunity for a faster processing time. To check on the status of the ATF eForms portal visit https://www.atfonline.gov/EForms/.

April 9, 2014

Ohio Bill to allow Hunting with Suppressors

The Ohio House passed a bill to allow hunting for some game species. The legislation that would permit the use of suppressors while hunting white-tailed deer, rabbits, squirrels and other game. The suppressors would need to be legal and registered with the ATF. The ATF permits individuals, Trusts, and business entities to apply for a $200 Tax Stamp to purchase and be in possession of a suppressor or silencer. While a suppressor reduces the noise it does not make a gun silent.

The Ohio bill would require that hunters who want to use a suppressor must submit to a background check and complete an application. Once the bill is approved the Ohio Senate it can be sent to the Governor for his signature. We will update you with progress on this bill as we learn of its status.

April 6, 2014

ATF takes down eForms "until further notice"

eforms_logo.jpgIf you were planning on submitting a form electronically to save time, you may not be able to use eForms. I logged onto the ATF eForms website yesterday and saw the following message:

The eForms software is not performing to our expectations. As a result, we are taking the eForms system down until further notice. We apologize for any inconvenience and appreciate your patience as we work with our industry partners to deliver a quality product. Any eForm submitted will continue to be processed. The finalized forms will be sent to the user via email.

Until the eForms system is returned to service for the industry, all imports forms (Forms 6 Part I and 6A), NFA forms (1, 2, 3, 4, 5, 9 and 10), and AFMER reports (Form 5300.11) must be submitted via paper, including any eForms in draft status.

Copy of submitted or finalized eForm
Direct a request to eForms.Request@atf.gov
Status queries
Contact the NFA Branch at (304) 616-4550
Contact the Firearms and Explosives Imports Branch at (304) 616-4550
Other eForms questions
Direct the question to eForms.admin@atf.gov

April 6, 2014

ATF Says it is OK to fire SB-15 Pistol from the Shoulder

sig_arm_brace_sb15.jpgIn a response to a recent letter the the ATF, the ATF stated:

FTB has previously determined (see FTB #99146) that the firing of a weapon from a particular position, such as placing the receiver extension of an AR-15 type pistol on the user's shoulder, does not change the classification of a weapon. Further, certain firearm accessories such as the SIG stability brace have not been classified by the FTB as shoulder stocks and, therefore, using the brace improperly does not constitute a design change. Using an accessory improperly would not change the classification of a weapon under Federal law. However, the FTB cannot recommend using a weapon (or weapon accessory) in a manner not intended by the manufacturer.

The Letter that Sig sends with the SB-15 states that it is ok to use the brace as intended and does not create a firearm subject to the NFA. Previously this left many concerned that if someone was to use the brace not as intended an SBR would be created. This letter from the ATF clears up the issue and states that just because an accessory was not used as intended, the firearms is not reclassified by ATF.

If you would like a copy of the letter from the ATF for your records it can be downloaded.

March 28, 2014

Michigan (MI) What NFA Firearms can I own? Updated 3/28/14

Michigan NFA Class 3 firearms

There are several type of Title II firearms which are sold by Class 3 SOT dealers that are restricted by the National Firearms Act.

Each state can impose additional restrictions on the sale, purchase, and transfer of Title II firearms in addition to the compliance that is required with the National Firearms Act.

In Michigan you can own the following Title II Firearms that are regulated the the National Firearms Act:

Machine Guns
Suppressors
Any Other Weapon (AOW) (only some)
Destructive Devices (DD)
Short Barreled Shotguns (SBS)  (See Below but Legal as of 3/28/14)
Short Barreled Rifles (SBR)  (See Below but Legal as of 3/28/14)
In Michigan you cannot own the following NFA restricted items.
 some AOW's like Tasers or Stun Guns by private citizens whether or not they are class 3 items or the individual has a CCW permit
The Michigan State Police put together a legal update on SBR and SBS which describes the differences between those over 26 inches and those under 26 inches.

Continue reading "Michigan (MI) What NFA Firearms can I own? Updated 3/28/14" »