Post-86 Machineguns legal for Trusts?

[HT4]

Joshua Prince is a legitimately cool guy, my boss and he are good friends.

My sticking point seems to be this: Say a Trust is allowed to Form 1 a Machinegun, as they are not a person as defined by the GCA. The Approved Form 1 comes back. The Trustee converts the firearm into a machinegun on behalf of the trust. If we go by the logic of the letter, is a trustee, as an individual, still prohibited from possession of the machinegun not registered before the effective date of the subtitle? I have more reading to do, but it is certainly an interesting one. It would be a heck of a thing if the trust could legally make the machinegun, but no person could physically possess the thing.

I haven't parsed the language or given it much thought, but why would this be analytically distinguishable from the physical possession of a suppressor by the trustee of an NFA trust?

 

[NateIU10]

I haven't parsed the language or given it much thought, but why would this be analytically distinguishable from the physical possession of a suppressor by the trustee of an NFA trust?

18 USC 922(o) Provides:

(o)
(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.

There is no general prohibition on possession of suppressors that I can see in 922.

 

[HT4]

18 USC 922(o) Provides:



There is no general prohibition on possession of suppressors that I can see in 922.

True, but there is in the NFA... If the "trust can own, but trustee can't possess" line of reasoning worked, all NFA trustees may be in violation of the NFA. At least that was my initial reaction (again, without much reading or research).

26 U.S. Code § 5845

The term “firearm” means

(1) a shotgun having a barrel or barrels of less than 18 inches in length;

(2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;

(3) a rifle having a barrel or barrels of less than 16 inches in length;

(4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;

(5) any other weapon, as defined in subsection (e);

(6) a machinegun;

(7) any silencer (as defined in section 921 of title 18, United States Code); and

(8) a destructive device. The term “firearm” shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector’s item and is not likely to be used as a weapon.

26 U.S. Code § 5861

It shall be unlawful for any person—

(a) to engage in business as a manufacturer or importer of, or dealer in, firearms without having paid the special (occupational) tax required by section 5801 for his business or having registered as required by section 5802; or

(b) to receive or possess a firearm transferred to him in violation of the provisions of this chapter; or

(c) to receive or possess a firearm made in violation of the provisions of this chapter; or

(d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record; or

(e) to transfer a firearm in violation of the provisions of this chapter; or

(f) to make a firearm in violation of the provisions of this chapter; or

(g) to obliterate, remove, change, or alter the serial number or other identification of a firearm required by this chapter; or

(h) to receive or possess a firearm having the serial number or other identification required by this chapter obliterated, removed, changed, or altered; or

(i) to receive or possess a firearm which is not identified by a serial number as required by this chapter; or

(j) to transport, deliver, or receive any firearm in interstate commerce which has not been registered as required by this chapter; or

(k) to receive or possess a firearm which has been imported or brought into the United States in violation of section 5844; or

(l) to make, or cause the making of, a false entry on any application, return, or record required by this chapter, knowing such entry to be false.

 

[anderson76]

The author advances the argument that “an unincorporated trust may lawfully transfer and make machineguns, as it is not a “person” for purposes of the GCA and Section 922”.

http://blog.princelaw.com/2014/05/1...or-manufacture-of-new-machineguns-for-trusts/

To which the logical response should be a big so-the-f-what? You know what else is not a “person” within the meaning of 922 – my pet turtle. Lets say it is lawful to transfer MGs to trusts and turtles. Does this mean that it is lawful for the trustee or the turtle’s owner to possess the MG? If the trustee or the turtle’s owner is a “person” then the answer is no.

This is just idiotic.

 

[ericoak]

The author advances the argument that “an unincorporated trust may lawfully transfer and make machineguns, as it is not a “person” for purposes of the GCA and Section 922”.

http://blog.princelaw.com/2014/05/1...or-manufacture-of-new-machineguns-for-trusts/

To which the logical response should be a big so-the-f-what? You know what else is not a “person” within the meaning of 922 – my pet turtle. Lets say it is lawful to transfer MGs to trusts and turtles. Does this mean that it is lawful for the trustee or the turtle’s owner to possess the MG? If the trustee or the turtle’s owner is a “person” then the answer is no.

This is just idiotic.

Turtles aren't mentioned in the actual law as being able transfer a NFA weapon so your post makes no sense...

 

[HT4]

The author advances the argument that “an unincorporated trust may lawfully transfer and make machineguns, as it is not a “person” for purposes of the GCA and Section 922”.

http://blog.princelaw.com/2014/05/1...or-manufacture-of-new-machineguns-for-trusts/

To which the logical response should be a big so-the-f-what? You know what else is not a “person” within the meaning of 922 – my pet turtle. Lets say it is lawful to transfer MGs to trusts and turtles. Does this mean that it is lawful for the trustee or the turtle’s owner to possess the MG? If the trustee or the turtle’s owner is a “person” then the answer is no.

This is just idiotic.

Often legal arguments are idiotic, but this one is not as outrageous as you may think. The crux here is not that every non-person (including your pet turtle) can register a machine gun. The issue is the difference between the definitions of "person" contained in two different, but interacting, laws.

Start from the proposition that the NFA allows a person to register a machine gun regardless of date of manufacture or previous registration. For purposes of the NFA, “person” is defined as a “partnership, company, association, trust, estate, or corporation, as well as a natural person.” 27 CFR 479.11. Then consider the GCA which limited the NFA by prohibiting “persons” from registering new machine guns; however, "person" for the GCA is defined more narrowly than the NFA "person." For the GCA, the term “person” is defined as “any individual, corporation, company, association, firm, partnership, society, or joint stock company.” 18 U.S. Code § 921. Thus, trusts are left out of the GCA’s limitation on the NFA. Prince's point, I believe, is that the failure of the GCA to explicitly apply to trusts could mean that the pre-GCA rules (under which new machine guns could be registered) apply.

It that silly? Yes. Does it work as a legal matter? Who the heck knows.

 

[Brooklyn]

I still think the ban of all new mg per GCA 1986 is subject to successful challenge post heller...

The net effect of this is to put atf and the big O on notice that litigation is a option we will consider... my bet they drop the proposed changes to the trust issue...

Chief Leo sign - off is very vulnerable post heller under substantive due process.. the more they mess with this the more causes of action they risk putting before the courts..

 

[Atlasarmory]

Enough is enough I'm not registering my GD turtle !

 

[coopermania]

I looked at some laws and think I'm going to hold off doing the M.G. on a F1. I think I'm going to send a letter of my findings to the Director or the BATFE so he can rule on this matter.

Its the right thing to do.


ha ha

Damn it,, I said that in Post #31.

 

[CypherPunk]

Typing Letter now....

Postage is ready for licking....

What's the OAL of your letter?

 

[dblas]

Typing Letter now....

Postage is ready for licking....

If the letter is over ten words, then it cannot be produced in MD. (Do you even know ten words?)

 

[clandestine]

If the letter is over ten words, then it cannot be produced in MD. (Do you even know ten words?)

 

[awptickes]

Interesting. This might force the issue similar to the way the SIG Tac "Wrist brace" forced the issue of classification based on use, not appearance.

Huh?!? Really? I've only done one homemade AK-47 and the examiner wanted pictures. Anyway, being that this would be something ridiculously unusual for them (registering a new machinegun), I'm guessing they would want to see specific schematics... just before they deny you

I had to explain how I built the receiver for my SBR AK, by sending them a letter detailing how I made a homemade receiver, and that it was all done in my home. They said they wanted pictures, but I erred on the side of "don't give them too much" and just wrote it up.

 

[Xander]

Guess I need to get with Rusty Shackleford and get a trust going. Been wanting to get a suppressor for my FNP TAC 45 and while I'm at it make some MGs.

Why not call Nate?

 

[FrankOceanXray]

I was at Elk Neck today with my AR and Socom 16(loud as fug under cover), buddy of mine had an Mp5 suppressed with the fun switch, 9mm sbr suppressed AR and a laundry list of NFA toys. Couldn't play with the full auto although I did get to try everything.

What?

 

[Ragnar]

Reviving this thread since I just noticed the blog post in the OP.

I'm guessing that it's highly unlikely that anybody is going to get approved to build a machine gun based on this loophole. But on the slim chance that some might, is there any downside to lobbing in a form and seeing what happens? If I get denied, I get my $200 back, right?

 

[DaemonAssassin]

Reviving this thread since I just noticed the blog post in the OP.

I'm guessing that it's highly unlikely that anybody is going to get approved to build a machine gun based on this loophole. But on the slim chance that some might, is there any downside to lobbing in a form and seeing what happens? If I get denied, I get my $200 back, right?

Getting the 200 back is the 200 dollar question... In all honesty, that is what is holding me back from doing this exact thing right now.

 

[OrbitalEllipses]

From https://www.atf.gov/firearms/faq/national-firearms-act-firearms.html#transfer-procedure

Transfer of the NFA firearm may be made only upon approval of the ATF Form 4 by the NFA Branch. If the application is approved, the original of the form with the cancelled stamp affixed showing approval will be returned to the applicant. If the tax application is denied, the tax will be refunded.

 

[DaemonAssassin]

From https://www.atf.gov/firearms/faq/national-firearms-act-firearms.html#transfer-procedure

In that case, it might be worth it to set up an NFA Trust, just to test the waters. I was planning on buying a can in the future anyways...

The other problem is if we are going to pay those inflated prices for a MG or if we are going to get them at the current dealer/LEO/Mil price point.

 

[OrbitalEllipses]

Post dealer samples are dirt cheap while pre-86 ones remain inflated because under the current understanding of the law they are the only transferable ones. If post-86 guns are legal for trusts (which I doubt)...then the market tanks. How much? Well, post dealer samples will likely experience a higher market equilibrium while transferable machine guns will experience a lower market equilibrium for sure. How much? Not sure, but I'd expect somewhere around late 90s prices.