April 23, 2013

Owning machine guns, suppressors, and "sawed-off" rifles and shotguns under NFA

How to legally own ownership of machine guns, suppressors, and 'sawed-off' rifles and shotguns.

You have probably heard that the private ownership of machine guns, suppressors, and "sawed-off" rifles and shotguns is against the law. Many state penal codes calls these items “prohibited weapons.” For example, possession, manufacture, transportation, sale and repair of these weapons is a third degree felony punishable by up to ten years in the Texas Department of Corrections, writes attorney Michael D. Wisdom, president of the Texas Law Shield, a firearms legal defense retainer program developed by Houston-based Walker, Rice & Wisdom, P.C., Attorneys at Law.

A person possessing these weapons is also committing a federal felony which means prosecution in the federal courts and a sentence in the federal penitentiary. However, there is an exception to this prohibition. This exception provides that possession of these weapons is legal if the individual has complied with registering the weapon and paying the tax in accordance with the National Firearms Act ("N.F.A.").

The National Firearms Act was enacted in 1934 and seeks to regulate machine guns, suppressors, short barreled firearms, etc., using a tax scheme. In order to lawfully acquire an N.F.A. firearm, one must complete and submit an "ATF Form 4" or if one wishes to build his own weapon, an "ATF Form 1", to the Bureau of Alcohol, Tobacco, Firearms and Explosives (the "B.A.T.F.E."). These forms contain basic information about the person and the N.F.A. item the person wishes to own. This is the easy part. An individual (a living, breathing, human being) seeking B.A.T.F.E. approval must secure and provide to the B.A.T.F.E. the signature of the person's local chief law enforcement officer (or other B.A.T.F.E. approved person such as the district attorney, county sheriff, etc.) on their applicable B.A.T.F.E. form stating that the officer knows of no reason to believe that the person would use the requested firearm or device in an unlawful manner. As you may well expect, procuring this chief law enforcement officer's signature on this ATF form can be a difficult, if not impossible task. Many chief law enforcement officers have a blanket policy of never signing an ATF form, even for their own police officers. Even if your chief law enforcement officer will sign your A.T.F. Form 4, individual ownership in most cases is not the best route to ownership from a legal perspective.

N.F.A. Trusts:

For several reasons, the legally superior method for most people to lawfully own an N.F.A. firearm is through a non-person legal entity such as a trust or corporation. A corporation, L.L.C., or similar corporate entity requires many legal formalities to create and maintain. These include required filings with the secretary of state, the payment of filing fees, maintenance of corporate books and other governance requirements. However, a trust is a private creation with no state reporting requirements. A trust is a basic legal agreement made by a real person called a "settlor", to transfer legal title in property to a "trustee" (who may be the same person), who holds it for a "beneficiary" (who may be the same person plus others). The trustee or trustees of the trust are the only lawfully allowed persons to be in possession of the N.F.A. weapons on behalf of the trust.

Further, owning an N.F.A. firearm through an N.F.A. trust offers several other advantages. These include, no signature of a chief law enforcement officer is necessary, no photographs are required, and no fingerprints must be submitted to the B.A.T.F.E. In addition, owning an N.F.A. firearm in an N.F.A. trust offers numerous advantages over individual ownership, including ease of estate planning, determining who may possess the item, and asset protection. Everyone's circumstances are unique, but for most people an N.F.A. trust is the best path for N.F.A. firearms ownership.

Do I Need A Lawyer To Create A Trust To Own Or Possess An N.F.A. Item:

The short answer is no, but you could also conduct your own criminal defense to a capital murder charge, but it is a really bad idea. There are too many pitfalls, landmines and technicalities for me to ever advise anyone to go the N.F.A. trust route on their own. For example, if the trust holding the N.F.A. items is ruled to be invalid and you are in possession of an N.F.A. item, you are committing a state and federal offense. The law of trusts can be very complex and it is easy to "get it wrong" for the uninitiated. An invalid trust can have very dire consequences for the person caught holding the suppressor.

"Do-it-yourself" trusts are available in many places, legal form books, office supply stores and online. These trusts are basic fill in the blank documents of dubious legal enforceability. A "do-it-yourself" trust does not take into consideration a person's particular circumstances or the legal nuances of the B.A.T.F.E.'s regulations regarding the ownership, transfer, and possession of N.F.A. items. This is very important in that this could have a profound effect on not only the person who creates the trust, but also anyone he appoints as a trustee, as well as his heirs and beneficiaries.

As a lawyer, the biggest issue with "do-it-yourself" legal documents for N.F.A. firearms is that the consequences of getting your paperwork wrong can be severe. The potential legal consequences of failing to create a proper trust for the purpose of possessing N.F.A. weapons are dire and involve not just the loss of weapons which may be forfeited, but also the loss of liberty. If the "do-it-yourself" trust fails for any reason, or expires or is found to violate the law, it means that whoever is in possession of the N.F.A. weapon at the time the trust ceases to exist, is now in violation of both federal and state law. Further, a person can be tried and convicted under both state and federal law simultaneously! This is not something to leave to a "do-it-yourself project.

N.F.A. Program:

This is why we at Walker, Rice & Wisdom, P.C., have developed our N.F.A. Program. If you become a member of our N.F.A. Program, for just $299, we will draft your N.F.A. trust and all other necessary legal paperwork to obtain your desired N.F.A. items in compliance with the law and B.A.T.F.E. regulations. After approval of your transfer, if the B.A.T.F.E. ever challenges the validity of the trust documents or the documents transferring the N.F.A. weapon to the trust, you will benefit from our Transfer Defense™ protection.

We fully support N.F.A. sport shooting, and, if you want a fully automatic firearm, a suppressor, a short barreled rifle or shotgun, you deserve to have the security in knowing that your N.F.A. trust is written by professionals who will provide you with continuing advice and support anytime the B.A.T.F.E. may come knocking.

You can find more details and sign up to get your N.F.A. Trust at www.TLSNFA.com.