Does Virginia law prohibit short barreled shotguns?

SerbuI spoke with a prospective NFA collector today who wanted to know whether or not Virginia law prohibited the possession of short barreled shotguns.

He had been led to believe that state law might prohibit such possession regardless of compliance with the NFA.

His concern was based upon § 18.2-300 of the Code of Virginia.

§ 18.2-300. Possession or use of “sawed-off” shotgun or rifle.

A. Possession or use of a “sawed-off” shotgun or “sawed-off” rifle in the perpetration or attempted perpetration of a crime of violence is a Class 2 felony.

B. Possession or use of a “sawed-off” shotgun or “sawed-off” rifle for any other purpose, except as permitted by this article and official use by those persons permitted possession by § 18.2-303, is a Class 4 felony.

Note the “except as permitted by this article” qualifier.  We need to see if there are any provisions ‘in this article‘ that would exempt short barreled shotguns legally registered in the ATF’s National Firearms Registration and Transfer Record (NFRTR) pursuant to the NFA and the GCA.

Thankfully, we do not have to venture far to find the appropriate code section.

§ 18.2-303.1. What article does not prohibit.

Nothing contained in this article shall prohibit or interfere with the possession of a “sawed-off” shotgun or “sawed-off” rifle for scientific purposes, the possession of a “sawed-off” shotgun or “sawed-off” rifle possessed in compliance with federal law or the possession of a “sawed-off” shotgun or “sawed-off” rifle not usable as a firing weapon and possessed as a curiosity, ornament, or keepsake.

Therefore, if you possess a short barrel shotgun pursuant to an approved Form 1, Form 3, Form 4, or Form 5, then the prohibition in § 18.2-300 does not apply to you.

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. You should always consult an attorney licensed to practice law in your state who is familiar with NFA trust planning before making decisions about your own estate plan.

 

 

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The Obama Administration is pushing for regulatory changes to NFA trusts

Today The Hill’s regulatory blog reported that the Obama Administration is putting its weight behind regulatory rulemaking to close what they are calling the “gun trust loophole.

While this administration likes to describe any lawful activity with which it disagrees as a ‘loophole’, the current usage of ‘gun trusts’ is neither a loophole nor a problem.

Rather … it is a solution to a problem that the ATF has known about for some time and has, until now, been unwilling or unable to correct.

Under current ATF regulations, an individual who wishes to purchase an NFA item must submit an application that includes fingerprints, photographs, and a signed statement from the chief law enforcement officer (CLEO) in the applicant’s jurisdiction stating that the CLEO has been informed of the proposed purchase and is not aware of any legal reason the person should not possess the item.

However, in many jurisdictions, the CLEO simply refuses to sign the application, effectively banning all of those in that jurisdiction from legally acquiring NFA items. Rather than fixing this issue, the ATF has allowed this backdoor ban to continue for many years and it is this problem that has given rise to the ‘gun trust’ (or NFA trust) phenomenon.

Why?  Because under current regulations a corporate or trust entity which acquires an NFA item must still submit an application but the fingerprint cards, photographs, and most importantly, CLEO sign-off are not required.

And while the CLEO sign-off backdoor ban was the impetus for the NFA trust movement, it is really no longer the sole reason that these versatile instruments are so popular amongst NFA collectors.

Attorneys across the country have produced instruments that provide significant benefits to the settlor in addition to a simplified application.  A properly formed NFA trust will help protect your NFA items from unforeseen changes in your personal situation, enhance the usability of the items by others you choose, and simplify the passage of the items to your beneficiaries outside of probate.

The proposed rule would do nothing to negate those benefits.  It would simply do 3 things:

1)  It would extend the CLEO sign-off to trusts and corporate buyers as well as individual applicants;

2)  It would require fingerprints and photographs of every “responsible person” in a trust or corporate entity be sent when the applicant is not an individual in order to standardize these requirements.

If this proposed rule becomes law, it will effectively allow CLEO’s to once again enact a de-facto ban on NFA ownership by law abiding citizens.

NFA items are expensive, already heavily regulated, and virtually unheard of in criminal hands.  In fact, to the best of my knowledge, there have only been two crimes committed with NFA items during the last 79 years and one of those was a killing by a law enforcement officer that was later ruled a homicide.  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.

Passage of this proposed rule would do nothing to enhance safety but would only add 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 a collapse of the booming suppressor industry.  It is this, I suspect, that is the true goal of the administration.

NFA collectors and gun rights advocates are advised to keep their eyes on this proposed rule. If the report in The Hill is correct, we should expect to see the notice and comment period commence on or around November 20th … and comment we shall!

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Form 1 … We have a problem

Pay_To_The_Order_OfWhen completing a Form 1 application for the manufacture of an NFA item on which you will be paying the applicable tax, the text accompanying Question Number 1 always causes confusion for the new collector.

So what exactly is so confusing?

Well … For starters, it tells you to make your check or money order out to ‘The Department of the Justice’.

When first reading this, everyone immediately says to themselves “What’s the deal with the awkward wording?  Is it really supposed to be The Department of the Justice?

The answer of course is “No.  It is not.

So how did that wording make it onto the Form 1?

While I cannot say for sure, most NFA collectors seem to agree that when the text was updated from ‘The Department of the Treasury’, someone just deleted ‘Treasury’ and replaced it with ‘Justice’.

But the awkward wording is not the only problem with this text.  What generates far more concern for the observant applicant is that this text directly conflicts with the instruction sheet which accompanies Form 1.

On the first page of the instruction sheet, the instruction regarding remittance reads as follows:

g. Remittance. If the application is subject to the making tax, a check or money order, made payable to the Bureau of Alcohol, Tobacco, Firearms and Explosives, in the amount of $200.00 must be submitted with the ATF Form 1. Do not send cash.

Based upon the experience of countless friends, my recommendation to my clients is to make all payments payable to BATFE.  No one to my knowledge has ever encountered a problem with having such a payment rejected.

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. You should always consult an attorney licensed to practice law in your state who is familiar with NFA trust planning before making decisions about your own estate plan.

Posted in ATF, BATFE, Estate Planning, Form 1, NFA Trusts | Comments Off on Form 1 … We have a problem

NFA Myths: Do you have to be 21 to buy NFA items?

18_NFAOnce again a client has asked me the age-old question “Do you have to be 21 to buy NFA items?

The answer, as is often the case with legal matters, is “It depends.

In fact, the National Firearms Act (NFA) does not speak to age at all.

The Gun Control Act of 1968 (GCA) does impose a minimum age of 21 in order to purchase NFA items but only when the purchase is being made from a licensed dealer.

This leaves a number of ways for someone who is at least 18 years of age, and who is not otherwise prohibited from possessing an NFA item under state law, to legally acquire NFA items.

  1. They may acquire them in an intrastate transfer from an individual, trust, or non-dealer corporate owner.  Having said that, even in jurisdictions where the CLEO is NFA friendly, you might have trouble getting the CLEO to signoff for an 18 year old.  So I would definitely recommend using an NFA trust.
  2. They may manufacture an NFA item (such as an SBR) using a lower receiver that they legally own.  The ATF has actually issued a determination letter on this topic.
  3. They may acquire them as part of an inheritance.  This would generally occur on a Form 5.

Owning an NFA item is a serious responsibility and many NFA trust clients still direct their successor trustees to not distribute to beneficiaries until they reach the age of 21. But that is a matter of the settlor’s wishes and not a prohibition built into federal law.

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. You should always consult an attorney licensed to practice law in your state who is familiar with NFA trust planning before making decisions about your own estate plan.

Posted in ATF, BATFE, Estate Planning, Form 1, Form 4, NFA Trusts | Comments Off on NFA Myths: Do you have to be 21 to buy NFA items?

NFA Myths: Did I agree to 24/7 warrantless inspections?

ATF_Agent_SearchOne of the most common myths that I hear about owning NFA items involves the supposed ability of ATF officers to search your home at any time of the day or night without the need for a warrant.

Let’s just make this crystal clear.  This myth is not true!  You did not waive your 4th Amendment rights when you decided to legally own an NFA item.

“So where does this myth come from?”

I believe the myth originates from the fact that the ATF has the right to inspect the premises and inventory of an FFL holder (class 3 or otherwise).

However, even in that case the right to inspect is not 24/7 nor is it unlimited.  The ATF only has the right to conduct this inspection during the FFL’s normal business hours.  In addition, to quote from the BATFE’s own compliance fact sheet, “With certain exceptions, the GCA allows ATF to conduct one warrantless, annual compliance inspection of a federal firearms licensee (FFL).”

Owning an NFA item comes with a number of responsibilities.  But allowing the ATF unfettered access to your home is not one of them.

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