Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.
February 2, 2023 / March 2, 2023 – The Fifth Circuit Court of Appeals struck down U.S.C. § 922(g)(8) as unconstitutional.
June 30, 2023 – The Supreme Court agreed to hear the case. Outcome pending.
VanDerStok v. Garland
Whether the Bureau of Alcohol, Tobacco, Firearms, and Explosives should be enjoined from enforcing a 2022 rule regulating “ghost guns” as firearms.
June 30, 2023 / July 5 2023 – The United States District Court for the Northern District of Texas issued an order vacating the rule nationwide.
July 28, 2023 – The Supreme Court stayed (put on hold) the June 30, 2023 order and July 5, 2023 final judgment of the United States District Court for the Northern District of Texas pending the outcome of the appeal to the Fifth Circuit Court of Appeals.
October 2, 2023 – The Fifth Circuit Court of Appeals ruled that the nationwide vacatur was too expansive but that the preliminary injunction regarding the named plaintiffs was reinstated.
I was recently contacted by a client who wanted to acquire several shotguns for their skeet shooting club. I should note that they also served as an officer of the club and a member of the board of directors, which will be important later in our analysis.
My client was uncertain how such an acquisition should be handled in order to avoid making any legally false statements when completing the necessary background check forms.
Given the ever-increasing legal scrutiny facing gun owners, it is understandable that my client wanted to make sure they were handling this process correctly. After all, answering question 21.a. on the form 4473 “Are you the actual transferee/buyer of all of the firearm(s) listed on this form?” incorrectly can lead to charges of committing a ‘straw purchase’ as well as making a false statement on a background check form.
So … is it possible? And if so, how should an officer complete the form 4473 when purchasing a firearm for an organization?
The good news is that it is possible (at least in Virginia … see disclaimer below regarding other states).
The steps are actually quite simple:
The organization (corporation, LLC, etc.) should officially pass a resolution authorizing the buyer (who should be an officer of the organization) to acquire the firearm(s) on behalf of the organization.
The organization should file this resolution in their minute book and provide a copy to the officer who will be making the purchase.
The officer should prepare a written statement, executed under penalties of perjury, stating:
the firearm is being acquired for the use of and will be the property of that business entity; and
the name and address of that business entity.
The officer should take both the corporate resolution and the written statement with them to the dealer.
The officer should complete Section B of the form with his/her personal information and sign Section B.
The corporate resolution and written statement should both be provided to the dealer for attachment to the completed 4473.
This is a distillation of the information provided in the form 4473 instructions on page 4 which states:
When the transferee/buyer of a firearm is a corporation, company, association, partnership, or other such business entity, an officer authorized to act on behalf of the business must complete Section B of the form with his/her personal information, sign Section B, and attach a written statement, executed under penalties of perjury, stating: (A) the firearm is being acquired for the use of and will be the property of that business entity; and (B) the name and address of that business entity.
Once the firearm is acquired, the firearm should be recorded as an asset of the corporation, and proper records should be maintained.
DISCLAIMER: This guide is designed specifically for Virginia. I am not licensed to practice law outside of Virginia and local or state restrictions may apply in other states.
In that article, I predicted the listed conditions (see image below) might impact applicants in the future if the rule were to be overturned or blocked via injunction.
As I noted at the time:
These are items that the ATF has decided were illegal SBRs from their time of manufacture.
The ATF has, in their eyes, magnanimously agreed to give owners of these ‘illegal SBRs’ an amnesty period and free form 1 approval if they choose to register them.
With this free form 1 approval, the user can put an actual stock on the resulting ‘SBR’ in place of the arm brace. In other words, it is a full-blown SBR from that point forward, and the owner received that approval for free.
It is possible that the rule might be subject to an injunction or be outright overturned in the future.
If that happens, those that have these conditional form 1 approvals will be in possession of an actual SBR with an actual stock … and they didn’t pay the tax on it.
What I interpreted the condition to mean is that, should the rule be overturned, these approvals will no longer be valid and will be removed from the NFRTR.
However, we are in an intermediary stage where it has not yet been struck down but has been blocked by a nationwide injunction out of a Texas Federal District Court in the case of Britto v. ATF.
While we have no idea how long the injunction will be in place, while it is in effect, it is my legal opinion that these approvals are not currently valid. Therefore, I advise those with a free form 1 registration who have configured these items with something other than an arm brace to remove all stocks, vertical foregrips, or other characteristics you have added that make the item an SBR and return it to a pistol configuration ASAP! Note that the arm brace can still be left on the firearm.
Could I be wrong in my interpretation? Of course. But out of an abundance of caution, I would encourage my clients to not put themselves in legal jeopardy.
However, there are a number of other cases litigating the same issue with different plaintiffs. One such case is SAF et. al. v. BATFE, et. al.. This case is currently before United States District Judge Jane L. Boyle of the Northern District of Texas. On Thursday, Judge Boyle, citing the Fifth Circuit ruling, also granted a preliminary injunction limited to the plaintiffs in the SAF case (see below for the full order).
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