Can those with a misdemeanor domestic violence conviction own muzzle loaders?

This question involves the intersection of two complex areas of firearms law:

  1. The federal prohibition triggered by a misdemeanor conviction of a crime of domestic violence; and
  2. Whether black powder firearms are considered ‘firearms’ under state and federal law.

Let’s start with #1 – What triggers this ban?

The ban on purchase and possession of firearms by those who have been convicted of a ‘misdemeanor crime of domestic violence’ is based in federal law.  It is codified at 18 U.S.C. 922(d)(9)(purchase) and 18 U.S.C. 922(g)(9) (possession).  There is NO equivalent ban under Virginia law.

These two sub-sections generally prohibit the acquisition, possession, and transportation of firearms by any person “who has been convicted in any court of a misdemeanor crime of domestic violence.

This leads us then to #2.  Are muzzle loaders considered ‘firearms’ under federal law?

Federal law, at 18 U.S.C. § 921(a)(3), defines a firearm as:

(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

‘Antique firearm’ is specifically exempted from the definition.  But what exactly does that term mean?  Further in the same code section, we find the following:

(16) The term “antique firearm” means— (A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or (B) any replica of any firearm described in subparagraph (A) if such replica— (i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or (ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or (C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term “antique firearm” shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.

Note that even under federal law, any firearm “which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof” is not considered an ‘antique firearm’ and would be considered a ‘firearm’ for purposes of federal prohibitions.  The same is true for any firearm that incorporates the frame or receiver of a firearm such as a Remington 870 with a muzzle loading barrel or a Thompson Contender.

However, if you are careful when selecting your muzzle-loading firearm, then the answer to the question presented is:

Yes.  Those with a misdemeanor conviction for domestic violence may purchase, possess, and hunt with an appropriate muzzle-loading firearm under federal and Virginia law.

DISCLAIMER:  I am only licensed to practice law in the Commonwealth of Virginia and this advice is focused on federal law and the laws of Virginia.  Your state may have additional restrictions and you should seek the advice of an attorney licensed to practice law in your state if you are not a Virginia resident.

Posted in Black Powder Firearms, Criminal Law, Domestic Violence, Federal Law, Hunting, MCDV, Muzzle Loading Firearms, Purchasing Firearms, Virginia Law | Comments Off on Can those with a misdemeanor domestic violence conviction own muzzle loaders?

Green card holders and firearms

May I purchase a firearm if I have a green card?

Some version of this question shows up in my email almost every week.

It is hardly surprising since there is a great deal of confusion concerning green card holders and firearms.

Those who reach out to me are roughly divided into two groups.

The first group has been told that only full-blown US citizens may purchase firearms.

The second group has been told that anyone legally present in the Unites States may purchase firearms.

The two groups have one thing in common … they have both been given incorrect (or at least incomplete) information.

Let’s break this down step-by step:

1) Nonimmigrant Aliens are Generally Prohibited

The ATF notes that[a]n alien admitted to the United States under a nonimmigrant visa is prohibited from shipping, transporting, receiving, or possessing a firearm or ammunition unless the alien falls within one of the exceptions provided in 18 U.S.C. 922(y)(2)

So those holding a nonimmigrant visa are generally prohibited from purchasing, receiving, or possessing firearms (I will cover those important exceptions in a later article).

2) But Are Green Card Holders Considered Nonimmigrant Aliens?

The ATF answers this question as well:

No. The possessor of a “green card” is a permanent resident and not in nonimmigrant status.

3)  Filling out the 4473

Let’s look at the relevant question on the ATF Form 4473.

Note that it references instructions for 12d.  In those instructions, it reiterates that permanent resident aliens are not considered nonimmigrant aliens.

4) Final Answer

To summarize … “May I purchase a firearm if I have a Green Card?

Assuming you are not otherwise prohibited (felony conviction, etc.) then yes!

I should also note that the ATF makes no distinction between a green card and a ‘conditional’ green card.

DISCLAIMER:  I am only licensed to practice law in the Commonwealth of Virginia.  This advice is focused on federal law and the laws of Virginia.  Your state may have additional (almost certainly unconstitutional) restrictions on firearms ownership by green card holders.

Posted in 4473, ATF, Background Checks, BATFE, Criminal Law, Federal Law, Green Card Holders, Prohibited Persons, Purchasing Firearms | Comments Off on Green card holders and firearms

Selling an NFA Item as Executor of an Estate

The vast majority of my clients own their NFA items in an NFA Trust so that they get the dual benefits of sharing the items while they are alive and probate-avoidance when they pass away.  However, I occasionally get a call from a potential client who is the Executor of an estate which contains individually-owned NFA items.

You may be asking yourself, “What exactly is an Executor?”  When I use the term ‘Executor’, I am referring to that position which some states call ‘executor’, ‘administrator’, or ‘personal representative’.  Regardless of the term used in a given state, it is the “person authorized under State law to dispose of property in an estate.

The question of whether or not an Executor should sell the items or transfer them to a beneficiary or an heir is based upon the Will of the deceased owner (or lack thereof). However,  in the case where the Executor has determined that they need to sell an item, the question then arises as to how to complete the Form 4.  I will do a separate article in the future on how to complete a Form 5 for transfer of an NFA item to a beneficiary or heir.

But before we talk about completing the Form 4, there is a threshold question that must be answered.  Has the Executor been able to locate the approved tax stamp documents for the NFA items?  If they have then they can move on to the procedural steps below.  However, if they have not then they need to ascertain whether or not the items are properly registered in the National Firearms Registration and Transfer Record (NFRTR).  In the ATF NFA Handbook, they have this to say:

If the executor or administrator cannot locate the decedent’s registration documents, he/she should contact the NFA Branch in writing and inquire about the firearms’ registration status. This inquiry should be accompanied by documents showing the executor’s or administrator’s authority under State law to represent the decedent and dispose of the decedent’s firearms. Although ATF is generally prohibited from disclosing tax information, including the identity of persons to whom NFA firearms are registered, ATF may disclose such information to persons lawfully representing registrants of NFA firearms.

If you find yourself in such a situation, I will be glad to assist you in preparing an appropriate letter to the ATF.  I will do a separate article in the future on how to lawfully dispose of NFA items that are deemed to not be properly registered, and therefore contraband.

But for purposes of this article, we will assume the proper documents have been found.  Having determined that the NFA items are properly registered in the NFRTR, the ATF allows an Executor “a reasonable time” to submit either a Form 4 or a Form 5 for the NFA items in question.  While they do not specifically define this term in the NFA Handbook, you will note that the controlling regulation (quoted below) states that this is “[n]o later than the close of probate.”

It is also important to note that the Executor is subject to the same limitations as an individual owner.  For example, if the item is being sold to a resident of another state, then the item must be transferred to a properly licensed dealer in that state and then transferred from that dealer to the buyer.  I should add that I am licensed to practice law in the Commonwealth of Virginia and your state may have even more state-level requirements that must be observed.

Now that we have all of that out of the way, the executor should fill-in the following fields on the Form 4:

  • Box 3a should contain the name and address of the deceased individual owner
  • Boxes 3b and 3c should contain the Executor’s email and telephone number
  • In the case of an individual owner, Box 3d should mirror 3a
  • Boxes 4a through 4h should match the corresponding fields on the approved tax stamp document for the item
  • Note that these instructions assume that the individual owner did not hold an FFL.  If they did hold an FFL, contact me for more specific advice tailored to your situation
  • The executor should sign in Box 9
  • The Executor should print their name in Box 10 and then note their title of Executor (or whatever the appropriate term is under the laws of their state)
  • Finally, the Executor should enter the date that they signed the Form 4 in Box 11

As for what documentation the Executor should send along with the Form 4, this entire process is governed by 27 CFR § 479.90a, which states that (emphasis added):

(a) The executor, administrator, personal representative, or other person authorized under State law to dispose of property in an estate (collectively “executor”) may possess a firearm registered to a decedent during the term of probate without such possession being treated as a “transfer” as defined in § 479.11. No later than the close of probate, the executor must submit an application to transfer the firearm to beneficiaries or other transferees in accordance with this section. If the transfer is to a beneficiary, the executor shall file an ATF Form 5 (5320.5), Application for Tax Exempt Transfer and Registration of Firearm, to register a firearm to any beneficiary of an estate in accordance with § 479.90. The executor will identify the estate as the transferor, and will sign the form on behalf of the decedent, showing the executor’s title (e.g., executor, administrator, personal representative, etc.) and the date of filing. The executor must also provide the documentation prescribed in paragraph (c) of this section.

(b) If there are no beneficiaries of the estate or the beneficiaries do not wish to possess the registered firearm, the executor will dispose of the property outside the estate (i.e., to a non-beneficiary). The executor shall file an ATF Form 4 (5320.4), Application for Tax Paid Transfer and Registration of Firearm, in accordance with § 479.84. The executor, administrator, personal representative, or other authorized person must also provide documentation prescribed in paragraph (c) of this section.

(c) The executor, administrator, personal representative, or other person authorized under State law to dispose of property in an estate shall submit with the transfer application documentation of the person’s appointment as executor, administrator, personal representative, or as an authorized person, a copy of the decedent’s death certificate, a copy of the will (if any), any other evidence of the person’s authority to dispose of property, and any other document relating to, or affecting the disposition of firearms from the estate.

Once the Form 4 is prepped by the Executor and the required accompanying documents are included, the buyer then completes their required fields on the Form 4.  I have a guide from the buyer’s perspective here.  Once the buyer completes their steps, they mail the Form 4, a check for the tax, and all other required documentation, to the ATF.

The ATF will send the approved tax-stamp back to the Executor (at the address entered in 3a) who can then contact the buyer and arrange for the physical transfer.

Posted in ATF, BATFE, Estate Planning, Federal Law, Form 4, Form 5, Inheriting Firearms, NFA Transfers, NFA Trusts, Private Sales, Tax Stamp | Tagged , | Comments Off on Selling an NFA Item as Executor of an Estate

eForms is back for Form 1 Submissions

At the beginning of October, the ATF announced that Form 1’s are once again available for submission via eForms.

Initial applicants have astonishingly reported approvals in as little as 15 days!  And while I suspect that number will increase with volume, it still represents a significant improvement over the six-month-plus approval times we have been seeing with the paper process.

The screenshot below shows the ATF’s instructions for the new process from the eForms site.

In summary, they have devised a process which allows the Responsible Person Questionnaire form(s) (Form 23) to be uploaded, along with your notarized trust while completing the online Form 1.  Once the Form 1 is successfully submitted, the system generates a copy of the Form 1 and a Fingerprint Cover Letter and emails both documents to you.

You then mail the fingerprint cards of each responsible person to the ATF with the Cover Letter.  You then print the CLEO copy of the Form 1 and mail it, with the CLEO copy of your Form 23, to your local CLEO.  I suggest using Priority Mail (or some other form of mailing which provides proof of delivery).  Any additional responsible persons would mail just the CLEO copy of their Form 23, to their local CLEO.

As always, if I drafted your NFA Trust, then I will be glad to assist you in filing your online Form 1.  Prior to calling me to schedule a time, you will need to do the following:

  1. Email me a Scanned Copy of All 17 Pages of Your Notarized Trust
  2. Have Each Responsible Person on the Trust Complete, Print, and Sign a Form 23
  3. Email me a Scanned Copy of the Completed and Signed Form 23(s)
  4. Email me a JPG copy of each responsible person’s passport-style photo
  5. Call me to schedule a time to do the Form 1 together

The following instructions go into greater detail about each of these steps.

Email me a Scanned Copy of All 17 Pages of Your Notarized Trust

This will include the 13 pages of the trust, which ends with the notarized signature on page 13, and each of the four schedules that you have signed and dated.

Have Each Responsible Person on the Trust Complete a Form 23

A copy of the new ‘responsible person’ form 5320.23 (Form 23) will need to be completed by each ‘responsible person’ of the trust (you and anyone on Schedule B of your trust).

Important Note:  Your fellow ‘responsible persons’ will find it much easier to complete this form if they have a copy of your completed questionnaire in front of them so they do not make any mistakes regarding the make, model, serial, etc. of the NFA item.  

The Form 23 may be downloaded from the ATF website.  The form itself is well designed with fillable fields which auto-transfer the data to two additional copies (however, this feature only works if you download the form and open it in Adobe Acrobat or Acrobat Reader.  It will NOT work inside the browser.)

You, and the Joint Trustees listed on Schedule B of your trust, should download the form and each complete it according to the following instructions:

Completing Form 23 – Page 1

  • In Box 1 you should check the box for Form 1.
  • In Box 2 you should put the trust name.
  • In Box 3a you should put your full legal name and your home address.
  • In Box 3b you should put your telephone number.
  • Box 3c can be left blank.
  • If you have changed your name at any time during your life, including being married, then Box 3d should contain all other names you have ever used.
  • In Box 3e you will affix a 2×2 passport-quality photo taken within the last year (on the ATF copy of the form only).  As I noted here, many NFA dealers are planning to offer in-store photography options so you should check with your local gun store.  Failing that, Walgreens is a common provider of this service in many towns.
  • In Box 4a, you should put the type-of-firearm.  Make sure this is exactly the same as what is, or will be, on the NFA item.
  • In Box 4b you should put the manufacturer’s name and the location in which it was manufactured. It is critical that you enter them exactly as they are engraved on the lower! However, if you have a foreign manufactured firearm, you must also be careful to identify the name and location of the original manufacturer and not the importer (which might also be engraved on the lower). If you are manufacturing your own suppressor, or your own SBR based on an un-serialized 80% lower, then your trust is the manufacturer and you should put the trust name, city, and state here.
  • In Box 4c you should put the model of the item. Once again, it is critical that you enter this exactly as it is engraved on the lower! If you are manufacturing your own suppressor, or your own SBR based on an 80% lower, then you will need to assign a model.
  • In Box 4d you should put the initial caliber of the item being built.  Do not put ‘Multi’ as the caliber even if that is what is engraved on the lower.  While you may have multiple uppers for your registered lower, you need to declare a specific primary configuration in this application and you need to retain the ability to return to this configuration. This value should contain the number and the unit of measure such as .30 Cal, 9mm, or 12 Gauge.
  • In Box 4e you should put the serial number of the item. At the risk of repeating myself, it is critical that you enter the serial number exactly as it is engraved on the lower including any alpha-numeric characters! If you are manufacturing your own suppressor, or your own SBR based on an 80% lower, then you will need to assign a serial number. Many people simply start with 001 and proceed in series as they build additional items.
  • Box 5 should contain the information regarding the CLEO whose jurisdiction includes the home address in Box 3a.

Completing Form 23 – Page 2

  • You will need to answer the questions in Boxes 6, 7, and 8 as they apply to you, the person completing the form.  In the example below, I am completing them as I personally would answer them but you will need to answer them truthfully as they apply to you!
  • Note: If you have been convicted of a felony but have since had your gun rights restored then the instructions state you should answer question 6b as ‘No’.  However, I strongly advise you to attach a copy of your restoration paperwork to the Form 23 when submitting it to the ATF.
  • You should enter the date in the field to the right of the signature block.

A Completed Sample of Form 23

The following sample form illustrates what a completed form should look like.

Download (PDF, 928KB)

Printing The Completed Form 23

Once you have completed the Form 23, you will need to print it.  It will print 2 copies.  You should now affix your photo to the ATF copy of the Form 23 only. (DO NOT USE STAPLES)

Signing and Scanning the Completed Form 23

The only place you will need to sign the Form 23 is following the certification statement below Box 8.  You do NOT add “as trustee” to your signature on this form.

Do not forget to sign both copies of the Form 23.

Important:  The ATF requires all signatures to be in either blue or black ink.

Finally, you should scan the completed and signed Form 23 and email it to me.

Posted in 41F, 80% Lower, Administrative Law, AOW, AR Pistols, AR-15, ATF, BATFE, CLEO Notification, eForms, Form 1, Form 23, Manufacturing, NFA Trusts, Processing Times, SBR, SBS, Short Barreled Rifles, Short Barreled Shotguns | Comments Off on eForms is back for Form 1 Submissions

Common mistakes when completing a Form 20

Whenever you need to temporarily or permanently transport a Short-Barreled Rifle (SBR), Short-Barreled Shotgun (SBS), Machinegun, or Destructive Device (DD) across state lines, you will need an approved ATF Form 5320.20 (more commonly known as just Form 20) before doing so.

Because we often do not have the time to resubmit a Form 20 before a shooting competition or move, it is important that you do not fall victim to some of the more common errors that can occur with this form (especially when the items are owned by a trust).

Mistake 1)  Putting the wrong name for the registered owner

In box 1 of the Form 20 it asks for the name and address of the registered owner.  If your NFA items are owned by a trust then this should contain the name of the trust and not your name. If this is wrong the Form 20 will be denied.

Solution:  We are going to learn a single rule that will solve almost every problem with the Form 20.  “It should match the corresponding field on the approved Form 1 or Form 4 for the item in question.

Mistake 2)  Mistyping the Manufacturer, Model, Caliber, Serial #, OAL, Etc.

The ATF matches these Form 20’s to the National Firearms Registration and Transfer Record (NFRTR).  Therefore, if you do not provide them the information as it was entered your Form 20 will be denied.

Solution:  The information for each item should match the corresponding field on the approved Form 1 or Form 4 exactly (and this is true even if you have subsequently come to believe that the approved Form 1 or Form 4 is incorrect, at least until such time as the information is corrected in the NFRTR).

Mistake 3)  Leaving a required field blank

Other than the fields listed above, there are fairly few required fields.  Make sure to answer the remaining fields as follows:

  • For temporary transportation, Box 3 From and To Dates must be filled in and should not exceed 365 days in length.
  • For permanent transportation, Box 3 From and To Dates must be filled in and should contain projected start and end dates for transporting the items.
  • For temporary transportation, Box 5 should contain: “Target practice, sporting events, and all lawful purposes” .
  • For permanent transportation, Box 5 should contain: “Permanent change of address”.
  • Boxes 6 and 7 must be filled in for both temporary and permanent transport.
  • Box 8 should contain something similar to one of the following (depending on circumstances): “Personal conveyance”, “Common Carrier”, or “Air Carrier”
Posted in Administrative Law, ATF, BATFE, Destructive Devices, Federal Law, Form 20, Interstate Move, Interstate Travel, Machine Guns, NFA Trusts, SBR, SBS, Short Barreled Rifles, Short Barreled Shotguns | Comments Off on Common mistakes when completing a Form 20

Can your aircraft be owned by your living trust?

Just as is the case with automobiles, the answer to this question is “Yes it can!

However, unlike an automobile registration where the trust itself is the registered owner, the FAA requires that one or more trustees register the aircraft in their own name with ‘as Trustee‘ appended.

The FAA requires the following when registering an aircraft as trustee of a trust:

  • An affidavit showing that each beneficiary under the trust is either a U.S. Citizen or a resident alien. This includes each person whose security interest in the aircraft is incorporated in the trust. If any beneficiary under the trust is not a U.S. Citizen or a resident alien, the trustee or trustees must provide an affidavit stating the trustee is not aware of any reason, situation, or relationship that would give the non-citizen a share of control greater than 25 percent to influence or limit the exercise of the trustee’s authority.  If I drafted your trust then I will prepare your affidavit for you free of charge.
  • A certified true copy of the complete trust instrument (in Virginia this is known as ‘copy certification’ and may be done by any Notary)
  • A bill of sale signed in ink or containing an acceptable digital signature from the present registered owner to the trustee(s) of the trust in their capacity.  If I drafted your trust then I will also prepare this bill-of-sale for you free of charge.
  • A completed Aircraft Registration Application (AC 8050-1) showing the trustee as applicant and containing an acceptable digital or ink signature of the trustee(s)
  • The $5 registration fee.  Make checks payable to Federal Aviation Administration.

IMPORTANT NOTE:  When transferring ownership into a trust, do not forget to contact your insurance provider.

Posted in Aircraft Trust, FAA | Comments Off on Can your aircraft be owned by your living trust?

Can your automobile be owned by your living trust in Virginia?

This is a questions that I am often asked and the answer is “Yes it can!”  But that is only the beginning of the discussion.

The follow-up questions that you should be asking (and the respective answers) are:

1)  Should I put my car in just any trust?

No.  In order to maximize the benefits of placing your automobile into a trust you will want one that is properly drafted for the purpose.

2)  How do I transfer an individually-owned automobile into my trust?

You must complete the Assignment of Title by Owner section on the existing title.  You will place the trust name in the buyer field and the phrase ‘Placing in Trust‘ in the Sale Price field (see example below).

You will then need to complete the Application for Certificate of Title and Registration (VSA 17A) in the name of the trust in your capacity as Trustee.

Make sure that you select ‘Owned by an Individual’ on the second row (assuming the vehicle is not actually used for business purposes).

You will then  take the your trust instrument, title with completed assignment section, and application to your nearest DMV office to complete the process.

3)  Do I have to pay use-tax when I transfer an individually owned automobile into my trust?

Not if you have a properly drafted trust.

To transfer the automobile without being subject to use tax you will need to complete a Purchaser’s Statement of Tax Exemption (SUT 3).

In the Statement of Exemption section you will write the following:

Transferred to a trust for which I am a beneficiary

Then, in the paragraph number section below the Statement of Exemption reference paragraph 23.

Important Note:  If I didn’t draft your trust then you should consult with the attorney who drafted it to insure that your trust allows you to avail yourself of this Exemption.

4) If my trust owns my automobile, will it qualify for Personal Property Tax Relief (PPTR)?

Yes. Per the Virginia DMV’s guidance, “[A] qualifying vehicle ([as determined by] Va. Code 58.1-3523) is determined by the Commissioner of the Revenue (COR) of the county, city or town where the vehicle is garaged. In order to qualify for the tax relief, the motor vehicle must be owned or leased by a natural person or held in private trust and be used for nonbusiness purposes.

That is why your answer to the checkbox on the VSA 17A above is so important

5)  Is there anything else I need to do when I transfer my automobile into a trust?

Yes.  Do not forget to contact your insurance provider.  By federal law the insurance itself will not change but your policy needs to reflect the new ‘owner’ of the automobile.

Please contact me if you would like to discuss the estate planning and privacy benefits of having a living trust hold your automobiles.

Posted in Automobile Trust, DMV, Estate Planning, Privacy, Virginia Law | Comments Off on Can your automobile be owned by your living trust in Virginia?

Who is my CLEO?

Prior to the implementation of 41F, trust applicants were not subject to the Chief Law Enforcement Officer (CLEO) sign-off that was required of individual applicants.

As part of 41F, this requirement was changed from an affirmative ‘sign-off’ to a mere ‘notification’.  However, the notification requirement was then extended to apply to all ‘responsible persons‘ of an NFA trust.

Therefore, my trust clients often ask the question:

“Who exactly is my CLEO?” 

In Virginia, this question is further complicated by the fact that we have independent cities which are separate and distinct political subdivisions from the counties which surround them (which is not the case in many other states).

So … to answer this question, one must first determine whether they are a resident of an independent city or merely a county.  To do this, you may use the Locality Code Lookup tool made available by the Virginia Department of Taxation.

The good news is that once you have identified your jurisdiction, you have a number of choices which all meet the ATF definition of ‘CLEO’:

“the local chief of police, sheriff …, head of the State police, or State or local district attorney or prosecutor are acceptable”

While any of these are acceptable, I would recommend that you notify either the police chief or the sheriff in your jurisdiction.  Since 41F removed the sign-off requirement and only requires notice, the selection of which party to notify is no longer critical.

IMPORTANT NOTE:  As mentioned above, if you live in an independent city, you are NOT part of the surrounding county and officials serving there are NOT your CLEO.

Disclaimer:  As always, this information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other jurisdictions.

Posted in 41F, ATF, CLEO Notification, Form 1, Form 23, Form 4, NFA Trusts | Comments Off on Who is my CLEO?

Can I purchase a stripped lower from an out-of-state dealer?

I was recently contacted by a gun owner who attempted to purchase a stripped lower from an out-of-state dealer and the dealer refused the sale.  The dealer had completely confused the issue by telling him that stripped lowers must be sold as ‘pistols’.

The dealer was 100% correct that non-residents may not purchase frames or receivers from a licensed dealer.  However, their explanation as to why was just plain wrong.

Let’s see if we can untangle the issue …

  1.  18 U.S.C § 922(b)(3) makes it a crime for a dealer to sell any firearm, other than a rifle or shotgun, to a non-resident.
  2. Frames and receivers are neither handguns nor long guns.
  3. Therefore, frames and receivers do not fall withing the exception for rifles and shotguns and cannot be sold to non-residents.

The ATF covered this in the following 2009 Open Letter to FFLs.

Download (PDF, 104KB)

The part of the answer from the dealer that was wrong is his assertion that frames or receivers must be sold as ‘pistols’.  This is not correct at all.  The 4473 recognizes this distinction in box 16 and the associated instructions for this field.

Download (PDF, 903KB)

Receivers should always be transferred on a 4473 as an ‘other’.  This gives you maximum flexibility as to what may be built from the receiver.

Posted in 4473, 80% Lower, ATF, ATF Guidance Letters, BATFE, Federal Law, FFL Issues, Interstate Firearm Transfers, Non Resident Issues, Purchasing Firearms | Comments Off on Can I purchase a stripped lower from an out-of-state dealer?

What impact will the Fix NICS bill have on NICS appeals?

I was recently debating with a gun control advocate about the increased burden that is imposed on law-abiding gun owners when we add more and more records to the NICS system.  I was specifically discussing the prevalence of erroneous matches.

Her response to this was to dismiss it out of hand as not a problem since “there is an appeal process that they can use to correct those mistakes.”

If you are familiar with the NICS appeal process and its recent history, you will understand why I groaned at that statement.  As of today (May 4, 2018), the following screenshot shows where the FBI is in processing their backlog of NICS appeals.

Let me do the math for you.  They are processing appeals received two years and  four month ago!  This is due in large part to the fact that the FBI, during the Obama Administration, completely stopped processing NICS appeals.

To her credit, the gun control advocate admitted that this is not satisfactory due process and expressed shock at this state of affairs.

That brings us to the Fix NICS Bill which was passed as part of the  Consolidated Appropriations Act, 2018.  This bill amends the ‘Correction of erroneous system information’ provision of the Brady Handgun Violence Prevention Act, codified at 34 U.S. Code § 40901(g) by adding the following at the end:

For purposes of the preceding sentence, not later than 60 days after the date on which the Attorney General receives such information, the Attorney General shall determine whether or not the prospective transferee is the subject of an erroneous record and remove any records that are determined to be erroneous. In  addition to any funds made available under subsection (k), the Attorney General may use such sums as are necessary and otherwise available for the salaries and expenses of the Federal Bureau of Investigation to comply with this subsection.

This seemingly imposes a hard limit of 60 days to reply to NICS appeals.  However, I am less than hopeful.  There are two reasons for my scepticism:

  1.  There are no penalties or requirements imposed on the 61’st day.  Without that, the deadline has little meaning.  This is backed up by reason number 2.
  2. The text of the existing law (which is two years and 4 months behind) already requires that corrections be made ‘immediately’:

The prospective transferee may submit to the Attorney General information to correct, clarify, or supplement records of the system with respect to the prospective transferee. After receipt of such information, the Attorney General shall immediately consider the information, investigate the matter further, and correct all erroneous Federal records relating to the prospective transferee and give notice of the error to any Federal department or agency or any State that was the source of such erroneous records.

There does appear to be funding for increased staffing in the Fix NICS bill which might provide an incentive to reduce the backlog and live up to the new requirement.  We will have to watch their progress over the next few months to see if that is the case.

Posted in ATF, Background Checks, BATFE, Due Process, Federal Law, Fix NICS, NICS, Prohibited Persons, Purchasing Firearms | Tagged | Comments Off on What impact will the Fix NICS bill have on NICS appeals?