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

Posted on December 30, 2018 by John Pierce

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

Posted on December 29, 2018 by John Pierce

“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

Posted on December 24, 2018 by John Pierce

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 qualified Executor or Personal Representative (Per ATF guidance March 2020)
  • Boxes 3b and 3c should contain the Executor’s email and telephone number
  • Box 3d should contain the name, address, and date of death of the individual owner
  • Boxes 4a through 4h should match the corresponding fields on the approved tax stamp document for the item (Note that the ATF has been trying to correct historic errors in the NFRTR and so may ask you to change any information that is determined to be incorrect even if that is the way it is written on the original approved tax stamp)
  • 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

eForm 1: Documents needed

Posted on December 7, 2018 by John Pierce

In the past, I have attempted to assist clients in filing their eForm 1 applications.  The sheer volume has made it impossible for me to continue offering that as a free service since it can take over half-an-hour per application to receive the scanned documents, review them for any errors, compress them to comply with ATF requirements, and then navigate the eForms system.

Therefore, I offer this service for a flat-fee of $50 per item to cover my time.

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 (plus any amendments or non-NFA assignment sheets)
  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 each responsible person’s EFT fingerprint file(s).
  5. Email me a JPG copy of each responsible person’s passport-style photo
  6. If you are building a suppressor, scan and send me a design layout (see below for details)
  7. Call me to schedule a time to do the eForm 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.

Email me a Scanned Copy of Any Trust Amendments

You may or may not have any amendments.  If I have created any for you then send me a notarized copy of each.

Email me a Scanned Copy of Any Non-NFA Assignment Sheets

You may or may not have an assignment sheet which places non-NFA firearms and accessories into the trust.  If you have one then send me a copy.

Have Each Responsible Person on the Trust Complete a Form 23

Please see these detailed instructions for completing the Form 23.

Providing additional details if you are taking advantage of the arm brace amnesty.

If you are taking advantage of the amnesty period for arm brace equipped pistols then I will need 1) a photo of the pistol, with the arm brace equipped, showing the serial number and other manufacturer marking and 2) a copy of your non-NFA assignment sheet, dated prior to January 31, 2023, demonstrating that the pistol was part of the trust before the publication of the arm brace rule.

Providing design details if you are building a suppressor

In March of 2022, the ATF adopted a strict definition of what constitutes an illegal suppressor that effectively ends the ability to build a suppressor on a Form 1 using any kind of kit or pre-made internal components.

Those that are actually machining their own suppressor will now be required to provide additional information with their Form 1 applications.  The ATF is requesting the following:

  • Pictures of the parts that you will use to make the suppressor (the pictures should be clear and allow the identification of the parts photographed),
  • A description of the processes you will use to assemble or fabricate the suppressor

I suggest that you provide a design document.  I have a sample suppressor design document that you may use or expand upon.

Using this document as a template:

1) Fill in the measurements for OAL, Tube Diameter, and Bore
2) Show the number of baffles you intend to include and the spacing for each chamber
3) Describe the processes you will use to fabricate the suppressor

Once complete, scan in and email me the completed design document.

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 eForm 1: Documents needed

Common mistakes when completing a Form 20

Posted on July 8, 2018 by John Pierce

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