Constructive possession is a legal fiction to describe a situation where an individual has actual control over property without actually having physical control of the same assets. At law, a person with constructive possession stands in the same legal position as a person with actual possession.
When an individual purchases a class 3 firearm, they are the only one who is able to be in possession of the item. They have a duty to safeguard the use and possession of the restricted firearm from all others.
This includes their friends, spouse, children, or anyone else. Generally the individual accomplishes this by placing the restricted class 3 firearms in a gun safe.
What happens if their spouse or someone else knows the combination to the gun safe? That person is in Constructive possession of the item. In addition, the rightful owner, is in violation of improperly transferring the item to the other. Both people can face criminal penalties which include jail time, monetary fines, and confiscation and destruction of the items.
How Do I Protect Myself From Constructive Possession? One way is to make sure that no one ever has the combination to your gun safe, or has access to the items. You should not let other people use, handle, or have the ability to be in possession of the items.
Another way is to provide the ability for others to be in constructive possession. This can be done using a business entity such as a corporation, LLC, or NFA Gun Trust. The trust can be written in such a way as to allow another or several individuals to be in possession of the items.
This may sound simple, and generally it is, but there are many things that need to be discussed prior to including someone as a co-trustee on a Gun trust. A few of the issues include:
2) where do they live and how will the laws of their state effect your ability to purchase the weapons?;
3) are they eligible to own or possess these items?;
4) what happens if one of those issues changes in the future?;
5) is that person between the age of 18 and 21?; and
6) what will you do if one of you moves to state the item you own is not legal?