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Discussion Starter · #1 ·
Over on the PS90 forum, someone wrote:

"If you go the trust route, then you can add trustees and they are able to utilize the SBR. If you go the personal route, no one can use the SBR except you - even under your supervision. So the choice is you alone, or the trust route which will allow you to add trustees to allow them to utilize the SBR as well, or in this case, to make sure that you and your dad do not run afoul of the NFA. The NFA statue is quite specific....no one can have possession of the firearm except the stamp holder (personal) or a trustee of the trust."

This interpretation seemed unduly restrictive and did not fit the understanding of the law I've held for some decades. I routinely permit others to shoot my submachine gun and SBRs. Also, there are places where ordinary people can go and rent machineguns and such to shoot on site. The interpretation of the law stated above makes no sense in the face of such places existing. My own understanding seems more likely. But, rather than jump right into that thread and correct it with my understanding, I did the prudent thing and inquired of ATF as to their understanding.

I quoted the relevant part of the linked post and stated:

"It is his contention that only the registered owner can fire the weapon or even hold it.


"I'd been under the impression that others may use a licensed weapon but it must be under the direct supervision of the licensed owner. That is, one cannot loan it out for use in the absence of the licensed owner, but that the licensed owner is able to allow others to fire the weapon under his direct supervision.


"Which interpretation is correct? Is someone who fires a licensed weapon in the presence, and under the supervision of the licensed owner 'in possession' of the weapon and thus in violation of the NFA? This seems like an extremely restrictive interpretation.


"I'd appreciate a clarification."

I will not quote the entire response as much of it pertains to who is a Prohibited Possessor. Assuming the person with whom I wish to share my NFA weapon is not a Prohibited Possessor, can I do that without running afoul of the law?

The relevant part of ATF's response is this:

--- BEGIN ATF SNIPPET ---

The NFA at 26 U.S.C. 5812(a) states:
A firearm shall not be transferred unless (1) the transferor of the firearm has filed with the Secretary a written application, in duplicate, for the transfer and registration of the firearm to the transferee on the application form prescribed by the Secretary; (2) any tax payable on the transfer is paid as evidenced by the proper stamp affixed to the original application form; (3) the transferee is identified in the application form in such manner as the Secretary may by regulations prescribe, except that, if such person is an individual, the identification must include his fingerprints and his photograph; (4) the transferor of the firearm is identified in the application form in such manner as the Secretary may by regulations prescribe; (5) the firearm is identified in the application form in such manner as the Secretary may by regulations prescribe; and (6) the application form shows that the Secretary has approved the transfer and the registration of the firearm to the transferee. Applications shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law.

The NFA at 26 U.S.C. 5845(j) defines “transfer” as:
The term "transfer" and the various derivatives of such word, shall include selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of.

Neither the GCA nor its implementing regulations define the term “transfer.” The common legal definition of “transfer” broadly encompasses any method of disposing of an asset. A “transfer” includes any change in dominion or control of a firearm, whether temporary or permanent, commercial or noncommercial. A change in dominion or control may occur even when such change does not convey title to the firearm.
Accordingly, provided the SBR registrant remains in the physical presence of his/her SBR and does not give up dominion or control of the SBR then he/she may allow another person to use his/her SBR without a “transfer” taking place. However, the registrant may not allow another person to possess their SBR if the registrant knows or has reasonable cause to believe the person is prohibited from receiving or possessing firearms under Federal law.

--- END ATF SNIPPET ---

Emphasis in that last paragraph was added by me.

I hope others find this useful. As for myself, it's nice to know that I am not a repeat felon, having shared my NFA weapons with many people over the years. Just a few weeks ago, one of my sisters, who had never fired a gun in her life, shot, among others, my Uzi. Another sister, who had only fired bolt-action hunting rifles, had a taste of several pistols, an AR-15 and the Uzi.

The never-fired-a-gun sister was a bit afraid at first but came to no longer fear guns as she got to know a few. She's now looking to buy one of her own just for fun.

People fear what they do not understand. I encourage everyone to take a non-shooter to the range. Dispel the mystery and fear. Introduce them to The Four Rules. I like my own write-up best. <The Four Rules of Firearms Safety> I quizzed my sisters on the Four Rules before we had any hands-on training.

A final note: I searched this forum (I'm new here) to find the best place to discuss this topic and found this thread but it consists of just one post and the thread is closed. Is there another place where the rules are listed?
 

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I haven't found a person past myself who understands our own laws, much less how to defend them. GBA
 

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Thank you for the clarification. I let people shoot my subgun all the time, under my direct supervision. It's more fun for me than shooting it myself.
 

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Check out this 2013 FFL Newsletter that specifically adresses transfers of NFA items 'on premises' and 'off premises' of both non-NFA and NFA firearms. If you are an FFL/SOT, you can loan/rent while at your premises. When off premises (i.e. at the range not colocated with your premises), a transfer occurs.

https://www.atf.gov/firearms/docs/n...nsees-newsletter-march-2013-volume-2/download

Just another read by your fedgov about our laws. YMMV.
 

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Prior to 41P, it USED to be that you could name and unname a trustee on the spot with a signature. Thus anyone could be a trustee and use the NFA item in whatever fashion. Now after 41P all the trustees all have to be pre-approved by the ATF/FBI and whomever. So while those of us with the older trusts are still under the laws prior to 41P providing we do not change the trust by adding anything NFA to the trust, the newer trust are totally different from what it used to be.

But on to the observation.

By the strict reading of the law, as soon as you surrender the NFA item to someone else, you have lost control of the item. You can not control that which you do not have either in your possession or the ability to control it remotely (I do not think that there is any type of NFA item that could be controlled remotely in these terms). Maybe that is why it was written with words like dominion, physical presence, or the like. It may still be under your observation, you may be near, present (what constitutes physical presence --- 2 feet, 10 feet, nearby, no further than 4 feet) lot of gray area here, but you have lost control over it according to the law.

If I reach into the back of my vehicle and take out a firearm and pass it to my family passenger that is an ex felon....oops, I just allowed an x-felon to possess and control a firearm. Will I get arrested, probably not, maybe so...... I mean who would ever have thought that a person passing through a state with a 30 round magazine would go to jail.....oops...

It is known practice that you have the strict interpretation of the law and the more relaxed reading of the law. Individual understanding and all that blah blah. There are many states that are very anti NFA and they often gives us examples of "WTF??? you have got to be kidding me".

Will dad get arrested for firing your SBR while you are standing there next to him, no, not probably (but I am not going to be the one to tell anyone that). Can an arrest happen? That depends on the circumstances and the ongoing situation but I will never tell anyone "do not even think for a moment that you are not subject to the law as strictly written".

I believe it was me that said what was posted in the initial post. Maybe a post with another member about his father having use of the firearms in the NFA trust. Should he go the trust route or individual route?

I still say that the best way to not run afoul of the NFA laws and the use, possession, control of the NFA item, is to don't put yourself in a position where your are in the "gray" area because that will get you nothing but trouble.

I will NOT EVER tell anyone that it is OK to let your grandpa hold that neat NFA item when he is not a registered user of the NFA item. I WILL tell them that as far as NFA items are concerned, you better adhere to the law as written of else you may face charges for unknowingly letting an unauthorized person access to the NFA item.

Just look at what SCOTUS did to Jeremy Ketter......There will be no constitutional support from the SCOTUS for the preservation of the 2nd Amendment, especially when it comes to NFA items.
 

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So this brings up an interesting scenario. Suppose a non ATF LEO encounters you with your NFA weapon and insists on you relinquishing the weapon for his inspection. Do you tell him I'm sorry but I cannot surrender control of this weapon pursuant to NFA rules? If he has not observed you committing a crime with it according to the above, he has no legal right to take possession of it. I have a feeling that would not sit well with them and might get a Glock stuck in your face.
 

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Discussion Starter · #8 ·
Check out this 2013 FFL Newsletter that specifically adresses transfers of NFA items 'on premises' and 'off premises' of both non-NFA and NFA firearms. If you are an FFL/SOT, you can loan/rent while at your premises. When off premises (i.e. at the range not colocated with your premises), a transfer occurs.
That is not quite so. The letter assumes a rental off premises - in the absence of the FFL who rented the weapon. It assumes that the renter will remove the weapon from the control (presence and dominion) of the FFL in question. So, yes, a transfer would take place in that case. To quote the newsletter:
"A licensee may rent a firearm to any person for temporary use off the premises of the licensee for lawful sporting purposes. This transaction is considered a 'transfer'..."

Now imagine that you're looking to buy a new gun and want to try out a few. The local FFL takes you back to his on-premises range and in turn hands you several weapons to test fire. Have any "transfers" taken place? I think we can all agree that no transfers have taken place even under the most restrictive reading of the law.

Now imagine that the same FFL has no on-premises range and instead you and the FFL walk down the street to a commercial range and there he in turn hands you several weapons to test fire. Has any transfer taken place just because he is no longer on his own premises? I think not. And no reasonable person would say it had.

The newsletter, while interesting, was written, specifically, to apply to FFLs who rent weapons. The situation I was addressing is not that. I will, however, add that document to my library. Thanks.

I'm going to stick with ATF's "...provided the SBR registrant remains in the physical presence of his/her SBR and does not give up dominion or control of the SBR then he/she may allow another person to use his/her SBR without a “transfer” taking place."


 

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Discussion Starter · #9 ·
So this brings up an interesting scenario. Suppose a non ATF LEO encounters you with your NFA weapon and insists on you relinquishing the weapon for his inspection. Do you tell him I'm sorry but I cannot surrender control of this weapon pursuant to NFA rules?
It is precisely this sort of scenario which makes the highly restrictive keep-it-in-your-own-hands interpretation of "transfer" all the more suspect. Not only would you be in violation, so would s/he.
 

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The newsletter, while interesting, was written, specifically, to apply to FFLs who rent weapons. The situation I was addressing is not that.

Fair enough, I agree about the target of the articles I presented being firearm rentals.

While I agree in theory about the off-premises demo you mention, I'm still cautious about the question of a transfer or not. 'I think not' won't help me in front of a jury....

Cheers
 

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It is precisely this sort of scenario which makes the highly restrictive keep-it-in-your-own-hands interpretation of "transfer" all the more suspect. Not only would you be in violation, so would s/he.
Generally speaking, NFA transfers between law enforcement agencies are considerably more relaxed that the Form 4 process between individuals. I'm not sure how much of a problem allowing an LEO to examine your NFA item would be.
 
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