Saturday, March 19, 2016

Transfer of NFA Weapons

This is a subject certain to cause a backlash.  We've witnessed very heated discussions with lots of unpleasantries and general ugliness when this issue is debated.  And that issue is - What exactly constitutes the transfer of an NFA weapon?

We know that no one has been charged with a felony transfer for allowing their buddy to shoot their machine gun, their suppressed rifle or handgun, or their SBR while the friend is in the owner's presence.  We've heard the anecdotal stories of ATF field agents telling the guy at the range that such use by his friend "is not a transfer".  We don't disagree.  In fact, we think that's awesome and hope it stays that way!

The problem, as we see it, is that the door is open for this issue to possibly be decided otherwise, and that scares us.  While it may take a very difficult set of facts to arise, like if an innocent third party gets killed or injured by a friend shooting his buddy's Uzi (while in the buddy's presence), we try to prepare our customers against this possibility as best we can.  The concern lies in the statutory definition of a "transfer" of a weapon under the National Firearms Act.

The NFA prohibts the act of transferring these weapons without prior approval by the ATF.  The statute defines the act of transferring to include the acts of “selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of” an NFA firearm. (26 U.S.C. 5845(j)).  So, the question is, what exactly is meant by the word "loaning" in that sentence?  Unfortunately, the word "loaning" is not defined in the statutes or the regulations.

It seems that most arguments against the definition of Cartman's permitting Stan to shoot his NFA firearms in his presence as a "transfer" are based on the proximity of Cartman (the NFA weapon's owner) to Stan, i.e.: as long as Cartman is in the vicinity, the use of NFA firearms by Stan is not a loan and thus not a transfer.  However, we can't find a dictionary definition of the word "loan" or "loaning" that supports this argument.  Consider the following: Kyle forgot his pencil and asks Kenny, who is sitting next to him, if he has a pencil he can use.  Kenny hands Kyle a pencil and says "make sure I get that back when class is over".  Now, would anyone argue that Kenny hasn't loaned Kyle a pencil, even though he's never more than three feet away from Kyle at any time?  If not, then how is Stan's use of Cartman's suppressor or SBR different? defines loan as: 1. the act of lending; a grant of the temporary use of something; and 2. something lent or furnished on condition of being returned, especially a sum of money lent at interest:

Merriam-Webster's says: 1 a :  money lent at interest; b :  something lent usually for the borrower's temporary us; 2 a :  the grant of temporary use; b :  the temporary duty of a person transferred to another job for a limited time.

Therefore, according to both dictionaries, it is the simple grant of temporary use that creates a "loan", not the act of removing the object from the lender's presence.  Thus, the act of Cartman granting temporary use of his SBR to Stan has expressly created a loan, even with Stan in his presence, and under the express definitions of the National Firearms Act, if the weapon has been loaned without prior approval, it is an unlawful transfer and thus may be subject to prosecution.

When we write legal briefs for the court, we often times cite to Merriam-Webster's or Black's Law Dictionary to persuade the court as to the meaning of a statute or regulation.  We never cite to the opinion of Agent So-and-So as to what the words "transfer" and "loaning" mean, as his opinion may change day to day, depending possibly on whether his wife had filed for divorce the day before or whether he happened to get lucky.

This means that if this argument was ever briefed to a court of law, it is likely that the issue would be decided with Cartman and Stan both being charged and convicted with transfer felonies, because the court would look to the plain language of the statute, any applicable regulations, legislative intent and ultimately authoritative dictionaries to determine what is meant by the words on the page, and Agent So-and-So's opinion won't be given the slightest bit of consideration, whatsoever.

Please remember, WE HOPE THAT THE ATF'S ENFORCEMENT OF THE WORD "TRANSFER" STAYS THE WAY IT CURRENTLY IS AND NEVER CHANGES!!!  But, given the open door described immediately above, we believe it is extremely foolish to take unnecessary chances.  That is why we believe it is critical that a gun trust specifically address this issue and include specific language addressing NFA firearms and their use and possession by Trustees and beneficiaries.

That's one of the reasons that using Quicken Willmaker to create a trust or just using your general revocable living trust likely won't be of any help (we've even seen attorneys marketing themselves as gun trust specialists who say they don't put any NFA language in their trusts because they don't want the ATF to know that the trust is limited to weapons - WTH?  Given the potential liabilities explained above, intentionally exposing your clients to these liabilities when it's easily avoidable appears to be flat-out malpractice!)  These trusts likely restrict the use of trust assets to you, your spouse, and dependent children.  Your trust needs to be drafted in such a way that it makes others a beneficiary of the trust so that they have the legal right to the use and benefit of trust assets, or so that it permits the quick and simple addition and/or removal (remember Rule 41p!) of co-trustees who have the legal right to the possession and use of trust assets, even outside of your presence.

If your current gun trust doesn't provide you these protections, or the so-called gun trust specialist wants to give you a basic revocable living trust with no NFA-related language in it, you might want to consider using a 2A Trust DIY template instead, so that you have the greatest protections available - and the maximum ease of use when it comes to extending the use of NFA firearms to others.

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