Can you now make a new machine gun for a trust?

[Arizona_Mike]

Because of the brand new determination that unincorporated trusts are not persons under the GCA (requiring NICS checks on the individual receiving the item for the trust and changing how some questions are answered on the 4473), Joshua Prince of Prince Law Offices has submitted a Form 1 to make a minigun because sec 922(o) which closed the registry to new machine guns uses the same definition of a "person" which would indicate that the registry is not closed for trusts.

I would normally suspect this March 17 revision would be quickly rescinded or significantly modified. On the other hand I wonder if this is not a "mistake", but part of the process for implementing 41P that may have backfired in an unexpected way.

Mike

 

[MagnumDweeb]

Wow, now it gets interesting. As a lawyer myself with a large number of rich commercial and corporate clients who like to use Trusts for various purposes. This will certainly get interesting.

Just spitting into the wind a little (as opposed to emptying my bladder), but the purpose of the Trust may come into issue as well. Especially if the Trust can be alleged to be instrument for the purposes of potential business investment and R&D on machine guns.

I can't believe they left this door wide open. The only option at this point to me would be to rescind the order or significantly modify it. The legal conclusion that would have to be drawn to close out Trusts for creating new machine guns when the prohibitive language is "person" after a Trust has been determined not to be a person, would be kind of whacky if not outright dishonest.

I would think the smarter move would be to move for some kind of Declaratory Judgment where the federal court is asked if a manufacturing Trust (a Trust created for the purposes of R&D and potential business investment in machine gun manufacture) can exist as opposed to having to pursue an SOT III for machine gun manufacture. But hey, I'm not putting my skin in the game. I'll just sit back and watch. If this guy pulls it off then I might move for a Declaratory Judgment and Injunction.

 

[Arizona_Mike]

GCA:
18 U.S.C. § 921(a)(1): The term “person” and the term “whoever” include any individual, corporation, company, association, firm, partnership, society, or joint stock company.

NFA:
22 U.S.C § 7701(a)(1): The term “person” shall be construed to mean and include an individual, a trust, estate, partnership, association, company or corporation.

Historically the ATF has issued a number of opinions that in essence used the person definition from the NFA with respect to the CGA treatment of NFA items. This appears to no longer be the case which I think opens up a lot of wrinkles with respect to physical "transfers" between trustees, esp. if those trustees reside in different states.

The exciting thing is that the closing of the machine gun registry is part of 18 U.S.C. § 921. I don't see how they can have it both ways.

Mike

 

[drail14me]

Mike,

Can you expound on your remark about "the exciting thing is......"? So you're thinking it might be a good time to submit a Form 1 and give it a try?

 

[Arizona_Mike]

Mike,

Can you expound on your remark about "the exciting thing is......"? So you're thinking it might be a good time to submit a Form 1 and give it a try?

I meant exciting as in interesting. I'm sure the Form 1 would be rejected and you would have to litigate. I'm going to follow Joshua Prince's progress with his From 1 closely.

Actually there are a lot of interesting things here. If you take every instance of "person" or "whoever" in 922 and exclude trusts you reach a lot of interesting conclusions: no Form 4473 required by 478.124, no NICS required by 478.102. The rabbit hole goes very deep. I suspect the ATF is going to rescind this letter.

Mike

 

[barnbwt]

ATF Director: "Which one of you idiots left the registry open?!"

Whoops . Seems they can't keep machineguns out the hands of law abiding citizens, either. I won't complain

TCB

 

[Jim K]

I am not an attorney, but AFAIK historically, the term "person" has always been construed to include both a "corporate person" (company, trust, etc.) and a "natural person" (us hummin' beans) and, that unless a law specifies otherwise a "corporate" person may do or may not do anything a "natural" person may do or not do and vice versa.

So if a law reads, "no person shall rob banks", not only am I not allowed to rob banks, but I can't form a corporation to rob banks. (OK, the FDIC...)

Jim

 

[NickEllis]

Jim K, the interesting factor is that the BATFE is this very moment in the process of denying that a trust is a "person". See the parallel thread on trusts and transfers. So the question is whether they can have their cake and eat it too.

 

[barnbwt]

Hear me out...

Just as a thought experiment; is this what a reopening of the registry would actually look like? I mean, we all expected it to be court/legislature ordered, and super-dramatic; but if it became internally apparent to the administration that they would risk the whole shebang by holding out much longer*, I could see them tweaking the rules to allow highly-regulated trusts through the door, first. Perhaps they are responding to the enormous demand for machine guns (they do respond to lobbying, like all .gov orgs), just like how the recent SIG 'arm brace' ruling arguably gets them out from under a good portion of their enormous backlog (lots of folks seem to be going that route in lieu of the SBR designation)

Whatever happens, I feel bad for the desk-jockies who are sure to get a flood of Form 1s for machine guns from now until forever...

Now how long is that SBR application gonna take?

*as in; it'd be a joke to prove the NFA rules for MG's have squat to do with their revenue collection mandate at this point in history

 

[tyeo098]

OF COURSE.

As soon as I finish my DPM28 semi conversion (after a year!) this happens.
I knew I should have waited

Oh well, watching, waiting, hoping.