The NFA item you can’t own in Virginia

Posted on November 4, 2013 by John Pierce

Striker_12From 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absurd result that an NFA item, which would otherwise be permitted to a Virginia collector, is prohibited by name in an outdated statute.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.

Posted in ATF, BATFE, NFA Trusts, Short Barreled Shotguns, Virginia Law | Comments Off on The NFA item you can’t own in Virginia

Which NFA items need to also be registered with Virginia?

Posted on November 4, 2013 by John Pierce

Collection

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.

Posted in Machine Guns, NFA Trusts, Virginia Law | Comments Off on Which NFA items need to also be registered with Virginia?

May I ‘gift’ a firearm to a relative or friend in another state?

Posted on October 21, 2013 by John Pierce

Christmas_GiftsWith the holidays fast approaching, I suppose it was only a matter of time before I was asked this question.  After all, a quality firearm, treated with respect and care, is an heirloom that can last for generations.

But can you even give it as a gift to someone who lives in another state?

The short answer is “Yes you can.”  However, that doesn’t really answer the entire question.

What you should really be asking is “How do I legally ship the firearm to the lucky recipient in another state?”

The reason you need to ask this question is because federal law generally prohibits such interstate transfers unless they go through an FFL.  § 18.2-922(a)(3) says that:

(a) It shall be unlawful—

(3) for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State …

There are certain exceptions such as those for face-to-face transfers of rifles and shotguns as well as for firearms that are temporarily loaned for sporting purposes.  But generally, interstate transfers between non-FFL holders is prohibited.

So … how does one go about getting that special gift to Uncle Fred?

Step 1
Ask Uncle Fred to find a local gun store which charges a reasonable fee for transfers.

Step 2
Have the gun store send you a copy of their FFL.

Step 3
Ship the firearm to the FFL via common carrier (note that USPS will NOT ship handguns).

Step 4
Uncle Fred goes to the FFL and picks up the firearm while complying with both federal background check laws as well as any state or local additional requirements.

Step 5
Apologize to Uncle Fred for it no longer being a surprise but remind him how cool a nephew you are for getting him a firearm as a gift.

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.

Posted in Federal Law, Gifting Firearms, Interstate Firearm Transfers | Comments Off on May I ‘gift’ a firearm to a relative or friend in another state?

Understanding constructive possession

Posted on October 15, 2013 by John Pierce

Uppers_ARMay I have extra uppers or butt stocks for my SBR in the same gun safe as Title 1 lowers?

There is a lot of confusion regarding the concept of constructive possession as it relates to components which can be assembled to make a regulated firearm (in this case an SBR).

And people are right to be concerned. There are a number of cases affirming the idea that components do not need to be completely assembled to make them a ‘firearm’ under certain section of the law.

In 1966, the 3rd Circuit Court of Appeals held in United States v. Kokin (365 F. 2d 595) that a carbine together with all parts necessary to convert it into a machinegun is a machinegun.  In 1971 the 7th Circuit Court of Appeals reaffirmed this concept in United States v. Zeidman (444 F. 2d 1051) where the court held that a pistol and attachable shoulder stock found “in different drawers of the same dresser” constituted a short-barreled rifle.

So one would imagine that any combination of matching uppers or butt stocks and unregistered lowers stored in the same safe would automatically constitute an unregistered short-barreled rifle.

However, in 1992 in United States v. Thompson/Center Arms Co. (504 U.S. 505) the United States Supreme Court, in a plurality opinion, adopted an approach that can best be described as the “useful purpose” or “obvious utility” test.

In the case of an extra upper or butt stock for your SBR stored in the same safe as a matching Title 1 lower, since the upper or butt stock can be used legally with the registered SBR, it has “useful purpose” and “obvious utility” outside of the possibility of making an illegal SBR.

However, I interpret Thompson/Center Arms to also require that the Title 1 lower have an upper either attached or in the same safe which would complete a legal Title 1 firearm.

So to answer the initial question … If you follow these guidelines, I interpret Thompson to hold that you may have extra short-barreled uppers or butt stocks for your registered SBR in the same safe as matching unregistered lowers.

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.

Posted in ATF, BATFE, SBR, SCOTUS, Short Barreled Rifles, US Supreme Court | Comments Off on Understanding constructive possession

May I have multiple uppers for my SBR?

Posted on October 15, 2013 by John Pierce

UppersA client called me today as she was completing her Form 1.  She wanted the option to configure multiple uppers on her SBR once she received her approved Form 1 and tax stamp.

Her question, which seems to pop up quite frequently, was whether or not this is allowed under ATF regulations.

The good news is that you can switch out the upper on your registered SBR.  The configuration noted on the Form 1 is the configuration in which the SBR must be ‘manufactured’ and is considered the ‘primary’ configuration.  However, you may switch out the upper as you see fit once it is registered as an SBR so long as the change would not put the resulting firearm into a different NFA category such as SBS.

I should note that the ATF requests that you notify them if you are going to make a permanent change in the primary configuration.  But this is a request only and does not currently have a regulation giving it the force of 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.

Posted in ATF, BATFE, Form 1, SBR, Short Barreled Rifles | Comments Off on May I have multiple uppers for my SBR?