Arizona_Mike
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Admittedly there is an interpretative history of prosecuting manual possession on the case of a felon. The risk for an NFA weapon is if you are not present (not home).
Mike
Using A Trust For A Form 1
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Mike
Aaron Baker
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I'll be perfectly frank, dogtown_tom. It's not clear to me whether you're just a layperson (non-lawyer) who doesn't understand how legal principles work or if you're being deliberately obtuse.
No, it's not. As Arizona_Mike correctly notes, the important holding of that case as it pertains to this discussion is that one can be in constructive possession of an item simply by having access to the place where it is stored.
These are correct statements on their face, but you're avoiding the real issue. There's no federal law that requires a safe for NFA firearms. There's no law that says someone can't know a combination to your safe. What's your point? If your safe is empty, then no crime is committed. If you don't have a safe, but no one else can access your individually-owned NFA firearms, then no crime is committed. No one is arguing that these actions alone are federal crimes. You've created a strawman argument.
But there IS a federal law that makes it a felony to possess an NFA firearm that is not registered to you. "Possess," in this sense, isn't a simple dictionary definition word. It's a legal term, and all of the common law and federal case law defining possession must be taken into account.
Another strawman argument. No one here is talking about letting other people handle your NFA firearms while you're present. That's legally allowed and no one says it isn't. (Okay, okay. In the interest of full disclosure, I've heard that said before, but I don't honestly know any competent attorney that believes it. But most importantly, no one in this thread has said it, and yet you're acting like we have.)
In the case of NFA firearms, if you remain present, you may allow other people to handle your NFA firearms. (As long as, as you point out, they aren't a felon or other prohibited person.)
BUT... that's not what we're talking about. We're talking about a situation where you leave your NFA firearm at a location (such as your home) and you are not present. However, other people (such as your wife) ARE present. If the firearm is individually owned, then you have just created the risk of two things: 1) that you will be arrested and prosecuted for unlawfully transferring an NFA firearm, and 2) that your wife will be arrested and prosecuted for unlawfully possessing an NFA firearm.
And this is where all the discussion of safes and combinations come into play. One way to mitigate this risk to is have a safe that only YOU have the combination to, and to store your NFA firearm in it. It's an option that you have to prevent unlawful possession. Another option would be to take your NFA firearm with you everywhere. A safe is a bit more realistic, which is why it is often discussed even though it's not specifically required by federal law or even the only option.
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.
A trust with your wife named as a trustee is a legal method to allow both of you to have sole possession of the firearm at any given time without violating federal law. That's why people find it useful.
As I said before, you are welcome to be an individual owner, rather than use a trust. You're welcome to find alternative ways to prevent unlawful possession. You're even welcome to take the risk that the feds will never come busting down your door (since it is, honestly, pretty unlikely) and find your wife home alone with your short-barreled rifle. (Although if you're knowingly accepting that risk, I hope you've also explained the legal risks to your wife and that she agrees with you.)
But as Arizona_Mike has said, you don't seem to be able to offer any actual explanation why any of what I've just said is wrong. I'm happy to hear your thoughts on it, though, as long as you can address the actual arguments being made and not strawman arguments about federal law not requiring safes or possession while you're present at a range. If you are going to argue, I would certainly appreciate case citations or statutory citations to support your point.
Aaron
No, it's not. As Arizona_Mike correctly notes, the important holding of that case as it pertains to this discussion is that one can be in constructive possession of an item simply by having access to the place where it is stored.
These are correct statements on their face, but you're avoiding the real issue. There's no federal law that requires a safe for NFA firearms. There's no law that says someone can't know a combination to your safe. What's your point? If your safe is empty, then no crime is committed. If you don't have a safe, but no one else can access your individually-owned NFA firearms, then no crime is committed. No one is arguing that these actions alone are federal crimes. You've created a strawman argument.
But there IS a federal law that makes it a felony to possess an NFA firearm that is not registered to you. "Possess," in this sense, isn't a simple dictionary definition word. It's a legal term, and all of the common law and federal case law defining possession must be taken into account.
Another strawman argument. No one here is talking about letting other people handle your NFA firearms while you're present. That's legally allowed and no one says it isn't. (Okay, okay. In the interest of full disclosure, I've heard that said before, but I don't honestly know any competent attorney that believes it. But most importantly, no one in this thread has said it, and yet you're acting like we have.)
In the case of NFA firearms, if you remain present, you may allow other people to handle your NFA firearms. (As long as, as you point out, they aren't a felon or other prohibited person.)
BUT... that's not what we're talking about. We're talking about a situation where you leave your NFA firearm at a location (such as your home) and you are not present. However, other people (such as your wife) ARE present. If the firearm is individually owned, then you have just created the risk of two things: 1) that you will be arrested and prosecuted for unlawfully transferring an NFA firearm, and 2) that your wife will be arrested and prosecuted for unlawfully possessing an NFA firearm.
And this is where all the discussion of safes and combinations come into play. One way to mitigate this risk to is have a safe that only YOU have the combination to, and to store your NFA firearm in it. It's an option that you have to prevent unlawful possession. Another option would be to take your NFA firearm with you everywhere. A safe is a bit more realistic, which is why it is often discussed even though it's not specifically required by federal law or even the only option.
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.
A trust with your wife named as a trustee is a legal method to allow both of you to have sole possession of the firearm at any given time without violating federal law. That's why people find it useful.
As I said before, you are welcome to be an individual owner, rather than use a trust. You're welcome to find alternative ways to prevent unlawful possession. You're even welcome to take the risk that the feds will never come busting down your door (since it is, honestly, pretty unlikely) and find your wife home alone with your short-barreled rifle. (Although if you're knowingly accepting that risk, I hope you've also explained the legal risks to your wife and that she agrees with you.)
But as Arizona_Mike has said, you don't seem to be able to offer any actual explanation why any of what I've just said is wrong. I'm happy to hear your thoughts on it, though, as long as you can address the actual arguments being made and not strawman arguments about federal law not requiring safes or possession while you're present at a range. If you are going to argue, I would certainly appreciate case citations or statutory citations to support your point.
Aaron
dogtown tom
Member
Since 1934 how many wives have been prosecuted for constructive possession of NFA firearms owned by their husbands? I'll bet that number is absolutely zero.
Heck, how many people have been prosecuted for constructive possession that were not already felons? I'll bet that number is pretty darn low.
I understand the value of a trust that includes all members of a family/household..........but I think its a bit silly to say that if the wife knows the combination to the safe she is in constructive possession.
BTW, my gun range machine gun examples were in response to Mikes comment regarding possession, not just constructive possession by a felon.
Aaron Baker
Member
They were off-topic and non-responsive. What Mike said was: "It is against the law for a person to possess an NFA firearm (with exceptions)."
That is an accurate statement. Exceptions include the firearm being properly registered to you, or if you possess it while under the supervision of the owner. So your "not exactly" response didn't really negate anything he had said. Mike was already well aware that the examples you gave are perfectly legal. He never said they weren't.
What he was saying is that the legal doctrine of constructive possession applies to the scenario of "someone other than registered owner in sole possession of an NFA firearm" in the same way that it applies to "felon in possession of Title I firearm" and "person in possession of illegal drugs."
If a person may not legally possess ANY thing, then that person can be prosecuted under the legal doctrine of constructive possession. The doctrine is not limited to felons and Title I firearms.
I'm not aware of a single one, and I would also speculate that the number is zero. But neither you nor I know that for certain.
You don't specify "constructive possession" of what. If you're suggesting that only felons are prosecuted for constructive possession of NFA firearms, I think you're probably wrong. They may be the majority, but probably not all of the cases. I don't have a specific example to cite, but I believe that non-SOT FFLs have been cracked down on by the ATF for constructive possession of NFA firearms. I also think that non-felon firearm owners who had ties to "fringe" groups such as white supremacists have been busted for constructive possession of machine guns based on having the necessary parts to assemble one.
(Note that the entire Thompson Contender case--one of the most famous NFA cases, dealt entirely with a question of whether the kit they sold constituted constructive possession of an unregistered SBR. It wasn't a criminal case, but there are definitely non-felon examples of constructive possession being applied by the ATF. They're just not a government agency I trust to be lenient when it comes to their enforcement arm.)
Regardless, your point that normal, law-abiding citizens are unlikely to be prosecuted is a sound one. For the ATF to search your home while you're not home and find your wife in illegal possession of an NFA firearm not registered to her, they would have to A) have you on their radar, B) have probable cause sufficient to get a warrant, and C) execute that warrant while you were not home, but she was. There's a pretty slim chance of that happening for most people.
There ARE scenarios in which your wife could end up in trouble, though. And they're not "likely" scenarios for most people, but they aren't far-fetched. In Kentucky, we have 120 counties and small-town politics plays a huge role in prosecutions. If a good ole boy who isn't well-liked by the prosecutor in small-town Kentucky owns a suppressor, and he doesn't lock it up when he leaves the house, then if his wife were to use a firearm in self-defense while he was gone, it's possible that the police would notice her possession of a silencer, mention it to the prosecutor, and he could refer the case to the feds out of spite.
Would that happen to very many people? No. But simply because something isn't a huge risk isn't a reason to break the law.
That's where you're wrong. Just plain, flat wrong. It's not "silly" to say that she's in constructive possession. Because she is. Under the applicable legal doctrine, she, 100% without question, is in constructive possession of the firearms in that safe. The case law on how constructive possession works is absolutely settled. The statutory requirements for legal possession of an NFA firearm are absolutely settled. Combining those doctrines, no reasonable attorney would disagree that she was in constructive possession. (I'm sure her defense attorney would argue in court that she wasn't. That's what I'd do. It's a defense attorney's job. But I'd also expect to lose.)
The problem with your argument is you are confusing two concepts. You are confusing "this is unlikely to ever happen and no one will probably ever be prosecuted" with "this isn't illegal."
Jaywalking is illegal in most places. In a lot of those places, the idea that someone would ever be prosecuted for it is utterly ridiculous. That doesn't make it not illegal.
Constructive possession is real. If you want to go around saying that you'll never be prosecuted for it, feel free. I agree that you're probably right. But don't go around saying that it isn't illegal to leave your wife home alone with access to your NFA firearms. Because it is, and you're misleading people by making incorrect statements about the law.
You're welcome to your opinion, but you're not welcome to your own version of the truth.
Aaron
P.S. For the record, the ability to protect your family from a miniscule risk of prosecution isn't the main selling point of a trust, as far as I'm concerned. It's far more important to me that my wife can actually USE my NFA firearms when I'm not around. As can my hunting buddy. And I don't have to jump through as many hoops. And I can use eForms. And my NFA firearms avoid probate.
Arizona_Mike
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A couple different points (to change the subject):
1. I'm pretty sure police are accustomed to seeing property registered to a company or trust (esp. in the case of automobiles).
2. I had a conversation last month with an LEO who does local subgun matches. According to him when they call the ATF on a potential NFA firearm they are told "we are interested in it" or "we are not interested in it". They never talk details, apparently because they take 26 U.S. Code § 6103 (tax document confidentiality) seriously as it applies NFA forms.
Mike
1. I'm pretty sure police are accustomed to seeing property registered to a company or trust (esp. in the case of automobiles).
2. I had a conversation last month with an LEO who does local subgun matches. According to him when they call the ATF on a potential NFA firearm they are told "we are interested in it" or "we are not interested in it". They never talk details, apparently because they take 26 U.S. Code § 6103 (tax document confidentiality) seriously as it applies NFA forms.
Mike
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