Suppressor Legal question - trust v individual

[mfer]

I haven't bought a suppressor yet at all so this is all theoretical.

1. My wife has NO interest in guns. Doesn't want to touch. (working on that)
2. I want a suppressor (don't own yet).
3. If I get one and it is in the house but not attached to a gun, does that constitute access and the felony charge.

If so, I have to do a trust no matter what. I'm just trying to understand the law.

Thanks

 

[Swing]

While they can be somewhat alarmist, Prince Law group has a write up on constructive possession: NFA and Constructive Possession: Myth or Reality?

Personally, we went the Trust route, but my wife is an avid shooter, so the situation isn't identical.

 

[JohnKSa]

3. If I get one and it is in the house but not attached to a gun, does that constitute access and the felony charge.

Silencers/suppressors are federally regulated because they are NFA items in and of themselves, not because of what they are attached to or what other items the owner/trustee possesses or has access to.

Attaching them to a firearm, or owning a firearm to which they can be attached has no bearing whatsoever on the federal legalities of owning/possessing/accessing a silencer/suppressor.

 

[Theohazard]

If I get one and it is in the house but not attached to a gun, does that constitute access and the felony charge.

Like JohnKSa said, whether it's attached to a gun is irrelevant. A regular gun is regulated as a firearm under Title I of the 1968 Gun Control Act, and a silencer is regulated as a firearm under the 1934 National Firearms Act and Title II of the 1968 Gun Control Act. Both are firearms, but the silencer is more heavily regulated. And the federal regulations regarding their possession don't change if they're attached to each other or not.

Here's a thread where Aaron Baker, a defense attorney and gun trust lawyer, discusses the subject of constructive possession and whether your wife is breaking the law or not. Pay specific attention to posts 22, 27, and 29.

http://www.thehighroad.org/showthread.php?t=777377&page=2

In short, if you own a silencer as an individual (or you own it through a trust and your wife isn't on the trust), he says that it's technically illegal if your wife has access to the silencer when you're not around. Here's a direct quote from that thread:

If you leave your house and your NFA firearm is in a safe that only YOU have access to, then there's no constructive possession theory that makes other people present in the house guilty of a federal crime. If you leave your house and your NFA firearm is in a safe that you AND your wife have access to, then she has constructive possession of it, and you're at risk for federal prosecution.

(On a side note, keep in mind that this thread is from before 41F was announced, so some of the discussion on how to obtain an NFA item is outdated. But the information regarding constructive possession isn't outdated.)

 

[mfer]

Thanks for replies.

 

[crazyelece]

You are over thinking it.

Do you have kids?

Minors are not allowed to possess guns.

Is leaving a gun (in a dresser drawer perhaps or closet) where a minor could access it a crime?

How many spouses have been charged with illegal possession of their significant other's individually owned NFA weapon?

Trust possession is relatively new in the NFA world, how do you suppose those who owned NFA items individually for decades before stayed out of trouble?

 

[Frank Ettin]

You are over thinking it.

Do you have kids?

Minors are not allowed to possess guns.

Is leaving a gun (in a dresser drawer perhaps or closet) where a minor could access it a crime?

How many spouses have been charged with illegal possession of their significant other's individually owned NFA weapon?....

Lousy information.

See post 4 for correct information.

 

[danez71]

Minors are not allowed to possess guns.

In TX, where the OP is, that is a not true statement. Texas Penal Code § 46.13.

Is leaving a gun (in a dresser drawer perhaps or closet) where a minor could access it a crime?

Yes, in TX, you could be prosecuted for that. Texas Penal Code § 46.06.


That those two P.C.'s seem somewhat counterintuitive, it goes to show that 'under thinking' laws could cause some problems.



OP - Here is a link to a TX law firm that does these. (Note: I'm not in TX and dont know this law firm)

http://www.myguntrust.com/faqs

For a married couple, it almost always makes sense for an NFA firearm to be registered in the name of a gun trust. For example, suppose the husband owns a suppressor, which is legally registered with the ATF in his own name. The husband goes to work and leaves his suppressor at home.

If the wife stays at home that day and could have access to the suppressor, she is committing a federal felony offense that carries a prison sentence of up to 10 years and/or a fine of up to $250,000. 26 U.S.C. §§ 5861, 5871; 18 U.S.C. § 3571(b).

Further, the suppressor is subject to seizure and forfeiture. 26 U.S.C. § 5872. If convicted, the wife loses her right to own or possess any kind of firearms in the future. In addition, if the husband instead left the suppressor in the wife’s vehicle, the vehicle is subject to seizure and forfeiture.

If the husband had simply registered the suppressor in the name of a gun trust and appointed his wife as a co-trustee of the trust, this situation would have been prevented.

Additionally, the husband could appoint other individuals, such as friends and family who may legally possess firearms as co-trustees of the trust, as long as the other individuals agree in writing to be co-trustees.

Also,

If your NFA firearms are owned by you individually and you are later deemed to be incompetent, your NFA firearms are subject to confiscation immediately since it is illegal for any other individual to take possession of your NFA firearms.

On the other hand, if your gun trust owns your NFA firearms, any co-trustee can take possession of your NFA firearms to hold them on your behalf. In other words, you will not lose ownership of your firearms.

As as result, you will retain the ability to either direct that the NFA firearms be sold and the cash returned to you, or that the NFA firearms continue to be held in trust for the beneficiaries to inherit when you die.