As more and more people join the ranks of NFA collectors, wait times for paper applications have increased significantly.
But with the advent of ATF eForms there is hope!
One of my clients submitted their eForm application on September 25th and received their approval on January 4th.
That is a 100 day turnaround!
While I certainly cannot guarantee such results, I can say that using eForms will almost certainly result in a faster processing time than a traditional paper application.
For those of you who are not familiar with the issue, the ATF is proposing to modify the regulations governing NFA applications for trusts, corporations, and other non-individual legal entities.
If you are not a NFA collector, you might be tempted to ask “Why should I care?” The answer is that the proposed rulemaking will have disastrous consequences for collectors, the firearms industry, and ultimately the Second Amendment itself.
The Issue
Current ATF regulations require an individual applicant to comply with a number of requirements that ‘legal-entity’ applicants are exempt from. The most important of these is the requirement that applicants get ‘approval’ from their local chief law-enforcement officer (CLEO) before an application may be submitted. This is known colloquially as the ‘CLEO Sign-off.’
In many jurisdictions, the CLEO will not sign the form which acts as a complete and arbitrary ban on the acquisition.
That’s where the NFA trust (or other legal entity) comes into the picture. Currently, legal-entity applicants do not need CLEO Sign-off. This allows applicants in those jurisdictions where the CLEOs will not sign to avoid the de-facto ban that individual applicants face.
The proposed change wants to do away with this option. It would require that all ‘responsible persons’ of a legal entity complete the same requirements that individual purchasers must currently complete including the process of securing a CLEO sign off which would subject legal-entity applicants to the same arbitrary bans that CLEOs have been using against individual applicants.
But it doesn’t end there. The proposed change would also require that any new ‘responsible person’ of the legal entity submit a form 5320.23 along with fingerprints, photographs, and CLEO sign-off within 30 days of assuming their position with the legal entity.
What Can You Do To Help?
The rulemaking process requires that the public and those affected by a proposed rule have an option to comment on the proposed rule. This is known as the ‘notice and comment period.’ The notice and comment period for this proposed rulemaking ends on December 9th.
We need you to make your voice heard. At the bottom of this article is a link that will take you to Regulations.gov where you may submit your own comment. The following are suggested comments you might consider:
Suggested Comment #1
Rulemaking which imposes such a significant burden upon both citizens and industry should not be undertaken lightly. Here, we have burdensome rulemaking which has the potential to damage or destroy segments of one of America’s few growing industries and it is not based upon an identified problem. Rather, it is based upon mere conjecture.
Suggested Comment #2
ATF’s assertion in the proposed rulemaking that a disqualified person might form a trust or other legal entity in order to avoid undergoing a background check runs counter to current ATF directives. Since 2009, ATF has required that the responsible party who picks up an NFA item from a dealer pursuant to an approved Form 4 and tax stamp complete a 4473 form and undergo an individual background check prior to taking possession of the NFA item.
Suggested Comment #3
NFA items are expensive, already heavily regulated, and virtually unheard of in criminal hands. In fact, there have only been two crimes committed with NFA items during the last 79 years and both of those were crimes committed by law enforcement officers. This despite the fact that there are over a quarter of a million legally owned pre-1986 machine guns in the ATF registry and untold tens of thousands of AOWs and suppressors.
Suggested Comment #4
The ATF stated in the proposed rulemaking that they had complied with the Regulatory Flexibility Act. However, there is no indication in the proposed rulemaking that the needs of small businesses were considered. Instead, the ATF took a ‘one-size-fits-all’ approach to regulating which will have a devastating impact upon the many small businesses that supply the NFA market.
Suggested Comment #5
The proposed rulemaking intrudes unnecessarily upon the sovereignty of states by interfering with the lawful uses of trust instruments for legitimate estate planning purposes. In addition, the proposed rulemaking demonstrates a complete lack of understanding of the many ways that a trust might be used to pass assets on to one’s heirs. By defining the term ‘responsible person’ so broadly as to include beneficiaries, one finds oneself having to contemplate the absurd possibility of fingerprinting, photographing, and securing CLEO sign-offs for unborn children.
Suggested Comment #6
ATF’s assertion that CLEOs who had been unwilling to sign off on applications in the past would do so in the future based upon changes in the wording of the certification has been proven to be false. When contacted, numerous CLEOs who have refused to sign in the past have stated that nothing in the new verbiage would change their mind about signing certifications in the future. The proposed rulemaking would result in thousands of law-abiding collectors being banned from going through the very process that the ATF NFA Branch is charged with overseeing.
Suggested Comment #7
By requiring that any new ‘responsible person’ submit a 5320.23 as well as a CLEO sign-off within 30 days of their appointment, the proposed rulemaking radically intrudes upon the traditional uses of trusts and upon the rights of settlors to manage their estate plans.
Suggested Comment #8
ATF has failed to consider less intrusive forms of regulation that might accomplish the same goals. By eliminating the CLEO sign-off and narrowing the definition of ‘responsible person’, ATF could still require fingerprints and background checks on the person primarily responsible for a legal entity application without exposing law-abiding citizens to the arbitrary and capricious CLEO sign-off ban.
Suggested Comment #9
Passage of this proposed rule would do nothing to enhance safety but would only place additional bureaucratic roadblocks in front of law-abiding collectors and swamp ATF staff who are already overwhelmed. The result would be a drastic increase in the processing time for NFA applications and potentially a collapse of the booming suppressor industry.
These are merely suggestions. You are welcome to pick one or more of the above comments or write your own but now that you know just how significant the issue is we are facing, I urge you to head on over to the Regulations.gov page for the proposed rulemaking and make your voice heard!
Thank you!
Based upon a recent posting on the Virginia Citizens Defense League Facebook page there seems to be quite a bit of confusion about Virginia’s gun laws where minors and handguns are concerned.
In fact, there seems to be just as much confusion about what actually constitutes a ‘minor’.
So I thought it would be beneficial to break it down step-by-step.
Definitions
Let’s start by defining our terms. As I noted above, there is some confusion about what is meant by the term minor. Luckily, in Virginia we have a definitive answer.
§ 1-207 of Chapter 2.1 of the Code of Virginia which contains rules of construction tells us that “‘Child,’ ‘juvenile,’ ‘minor,’ ‘infant,’ or any combination thereof means a person less than 18 years of age.”
Now that we have the term minor defined, let’s move on to the various age brackets.
Are you under 18 years of age?
Purchase / Acquisition
Those under the age of 21 are prohibited by federal law from purchasing handguns from a licensed dealer. This is codified at 18 USC § 922(b)(1) which reads:
(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver—
(1) any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age, and, if the firearm, or ammunition is other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age;
This leaves open the possibility that those under 18 might be able to acquire firearms from a private seller or as a gift. Let’s look and see what state law has to say about the subject.
Where handguns are concerned, Virginia law generally prohibits any transfer to those under the age of 18. However, there are several important exceptions. This is codified at § 18.2-309(B) of the Code of Virginia which reads:
B. If any person sells, barters, gives or furnishes, or causes to be sold, bartered, given or furnished, to any minor a handgun, having good cause to believe him to be a minor, such person shall be guilty of a Class 6 felony. This subsection shall not apply to any transfer made between family members or for the purpose of engaging in a sporting event or activity.
There is also a federal statute which heavily restricts the ability to transfer handguns to minors. 18 U.S.C. 922(x) provides in part that:
(1) It shall be unlawful for a person to sell, deliver, or otherwise transfer to a person who the transferor knows or has reasonable cause to believe is a juvenile—
(A) a handgun; or
(B) ammunition that is suitable for use only in a handgun.
(2) It shall be unlawful for any person who is a juvenile to knowingly possess—
(A) a handgun; or
(B) ammunition that is suitable for use only in a handgun.
(3) This subsection does not apply to—
(A) a temporary transfer of a handgun or ammunition to a juvenile or to the possession or use of a handgun or ammunition by a juvenile if the handgun and ammunition are possessed and used by the juvenile—
(i) in the course of employment, in the course of ranching or farming related to activities at the residence of the juvenile (or on property used for ranching or farming at which the juvenile, with the permission of the property owner or lessee, is performing activities related to the operation of the farm or ranch), target practice, hunting, or a course of instruction in the safe and lawful use of a handgun;
(ii) with the prior written consent of the juvenile’s parent or guardian who is not prohibited by Federal, State, or local law from possessing a firearm, except—
(I) during transportation by the juvenile of an unloaded handgun in a locked container directly from the place of transfer to a place at which an activity described in clause (i) is to take place and transportation by the juvenile of that handgun, unloaded and in a locked container, directly from the place at which such an activity took place to the transferor; or
(II) with respect to ranching or farming activities as described in clause (i), a juvenile may possess and use a handgun or ammunition with the prior written approval of the juvenile’s parent or legal guardian and at the direction of an adult who is not prohibited by Federal, State or local law from possessing a firearm;
(iii) the juvenile has the prior written consent in the juvenile’s possession at all times when a handgun is in the possession of the juvenile; and
(iv) in accordance with State and local law;
(B) a juvenile who is a member of the Armed Forces of the United States or the National Guard who possesses or is armed with a handgun in the line of duty;
(C) a transfer by inheritance of title (but not possession) of a handgun or ammunition to a juvenile; or
(D) the possession of a handgun or ammunition by a juvenile taken in defense of the juvenile or other persons against an intruder into the residence of the juvenile or a residence in which the juvenile is an invited guest.
So … Those under 18 may legally acquire handguns (ownership) from family members or in a private transfer for the purpose of engaging in a sporting event or activity, or as the federal statute states it … for target practice, hunting, or a course of instruction in the safe and lawful use of a handgun.
However, that is not the end of the analysis. Once they ‘own’ a firearm then we must determine if there are other limitations on its use.
Possession / Carry
There are several statutes which address possession and use of firearms by minors. Let’s start with § 18.2-56.2 which reads:
A. It shall be unlawful for any person to recklessly leave a loaded, unsecured firearm in such a manner as to endanger the life or limb of any child under the age of fourteen. Any person violating the provisions of this subsection shall be guilty of a Class 3 misdemeanor.
B. It shall be unlawful for any person knowingly to authorize a child under the age of twelve to use a firearm except when the child is under the supervision of an adult. Any person violating this subsection shall be guilty of a Class 1 misdemeanor. For purposes of this subsection, “adult” shall mean a parent, guardian, person standing in loco parentis to the child or a person twenty-one years or over who has the permission of the parent, guardian, or person standing in loco parentis to supervise the child in the use of a firearm.
Out of an abundance of caution, I take this code section to imply that legally any minor under the age of 15 should be under the supervision of an adult at any time they are using a firearm.
But that is not all. While offering fairly broad exceptions for private lands, target shooting, and hunting, § 18.2-308.7 further limits the ability of minors to possess and transport handguns in the Commonwealth. It reads in part :
It shall be unlawful for any person under 18 years of age to knowingly and intentionally possess or transport a handgun … A violation of this section shall be a Class 1 misdemeanor.
This section shall not apply to:
1. Any person (i) while in his home or on his property; (ii) while in the home or on the property of his parent, grandparent, or legal guardian; or (iii) while on the property of another who has provided prior permission, and with the prior permission of his parent or legal guardian if the person has the landowner’s written permission on his person while on such property;
2. Any person who, while accompanied by an adult, is at, or going to and from, a lawful shooting range or firearms educational class, provided that the weapons are unloaded while being transported;
3. Any person actually engaged in lawful hunting or going to and from a hunting area or preserve, provided that the weapons are unloaded while being transported; and
4. Any person while carrying out his duties in the Armed Forces of the United States or the National Guard of this Commonwealth or any other state.
In addition, 18 U.S.C. 922(x) governs possession and use as well as initial transfer.
In summary, those under 14 should be supervised by an adult while using handguns and those 15 through 17 should not possess handguns outside of the exceptions laid out in § 18.2-308.7 of the Code of Virginia and 18 U.S.C. 922(x).
Are you 18 through 20 years of age?
Purchase / Acquisition
As noted above, those under the age of 21 are prohibited by federal law from purchasing handguns from a licensed dealer by the provisions of 18 USC § 922(b)(1).
However, there is no prohibition under Virginia law preventing someone 18 years of age or older from acquiring a handgun via a private sale.
Therefore, it is perfectly legal for someone 18 to 20 years of age, who is otherwise not prohibited from possessing firearms, to acquire one via a private sale.
Possession / Carry
Virginia is an unlicensed open carry state. Additionally, there is no prohibition under Virginia law preventing someone 18 years of age or older from openly carrying a legally-owned handgun.
The only disability that applies to those 18 to 20 years of age is an inability to apply for, and receive, a Virginia concealed handgun permit (CHP). § 18.2-308.02 of the Code of Virginia limits this to those 21 years of age or older. It reads in part:
A. Any person 21 years of age or older may apply in writing to the clerk of the circuit court of the county or city in which he resides, or if he is a member of the United States armed forces, the county or city in which he is domiciled, for a five-year permit to carry a concealed handgun ….
The summary for those 18 to 20 years of age is much simpler than that for minors. These legal adults may acquire handguns through private sales and may openly carry them so long as they avoid those places statutorily off limits to open carry. Their only limitation is an inability to apply for, and receive, a concealed handgun permit.
One final point
One of those who commented on the VCDL Facebook page posited that since § 18.2-308.2:1 (which makes it a felony to provide a firearm to someone prohibited under § 18.2-308.7) does not have the same exceptions as § 18.2-308.7 that this creates a conflict in the law.
That is not the case. If someone meets one or more of the exceptions in § 18.2-308.7 then they are NOT prohibited under § 18.2-308.7 and therefore § 18.2-308.2:1 never applies.
Disclaimer: 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 states.
From a legal perspective Virginia’s NFA collectors have it pretty good.
In the Commonwealth, so long as all federal requirements are met, one can generally own suppressors, short-barrelled rifles, short-barrelled shotguns, and the other items included in the miscellaneous ‘any other weapon (AOW)’ category.
In addition, machine-guns may be owned so long as all federal requirements are met and the machine-gun is registered with the Virginia State Police within 24 hours of its acquisition.
In fact, there is only a single class of firearm that is completely denied to Virginia’s NFA collectors. It is the Striker 12 ‘Street Sweeper’ Shotgun or any shotgun of ‘like kind’.
§ 18.2-308.8. Importation, sale, possession or transfer of Striker 12’s prohibited; penalty.
It shall be unlawful for any person to import, sell, possess or transfer the following firearms: the Striker 12, commonly called a “streetsweeper,” or any semi-automatic folding stock shotgun of like kind with a spring tension drum magazine capable of holding twelve shotgun shells. A violation of this section shall be punishable as a Class 6 felony.
This Virginia statute was enacted in 1993 and in 1994, pursuant to ATF Rulings 94-1 and 94-2 these shotguns were classified as destructive devices under the National Firearms Act.
Therefore, we are left with the absurd result that an NFA item, which would otherwise be permitted to a Virginia collector, is prohibited by name in an outdated statute.
Until such time as this can be corrected legislatively, collectors need to be aware of this limitation.
An NFA trust client of mine recently contacted me to ask whether or not he had to register his SBR with the Commonwealth once he received his approved Form 1 and tax stamp.
He reported that he had posed the question to several Virginia State Police troopers and had received conflicting answers.
One of the troopers had informed him that all NFA items had to be registered with the Commonwealth as well as with ATF. The other had said that only machine guns had to be registered with the Commonwealth.
My client, law-abiding citizen that he is, wanted to make sure that he was fully complying with the law.
So what is the answer?
The Commonwealth of Virginia only requires that machine guns be registered with the state. All other NFA items may be possessed so long as they are owned in accordance with the NFA, the GCA, and any other applicable federal laws and regulations.
§ 18.2-295. Registration of machine guns.
Every machine gun in this Commonwealth shall be registered with the Department of State Police within twenty-four hours after its acquisition or, in the case of semi-automatic weapons which are converted, modified or otherwise altered to become machine guns, within twenty-four hours of the conversion, modification or alteration. Blanks for registration shall be prepared by the Superintendent of State Police, and furnished upon application. To comply with this section the application as filed shall be notarized and shall show the model and serial number of the gun, the name, address and occupation of the person in possession, and from whom and the purpose for which, the gun was acquired or altered. The Superintendent of State Police shall upon registration required in this section forthwith furnish the registrant with a certificate of registration, which shall be valid as long as the registrant remains the same. Certificates of registration shall be retained by the registrant and produced by him upon demand by any peace officer. Failure to keep or produce such certificate for inspection shall be a Class 3 misdemeanor, and any peace officer, may without warrant, seize the machine gun and apply for its confiscation as provided in § 18.2-296. Upon transferring a registered machine gun, the transferor shall forthwith notify the Superintendent in writing, setting forth the date of transfer and name and address of the transferee. Failure to give the required notification shall constitute a Class 3 misdemeanor. Registration data shall not be subject to inspection by the public.
