Although legal in many states, owning and purchasing controversial weapons such as fully automatic machineguns and silencers is about to get more complicated.
On January 5, 2016, President Obama announced an executive action that included new rules relating to the purchase of certain firearms. When the long-anticipated Rule 41F goes into effect on July 13, 2016, the Obama Administration will have decidedly closed a legal loophole that has launched an entire field of niche legal services.
The National Firearms Act (NFA) requires every individual to pass a federal background check before purchasing any “NFA firearm,” (a term which includes silencers, fully automatic machineguns, as well as short barrel rifles and shotguns.)
Even in states where purchasing NFA firearms is legal, individuals still must comply with the all the federal requirements contained in the NFA. However, a quirk of the NFA’s definition section effectively makes the background check a requirement only for those buyers without a savvy lawyer.
The NFA’s broad definition of “individual,” which includes legal entities such as gun trusts, has allowed many to purchase NFA firearms without ever submitting their personal information to the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE).
Despite the fact that collecting this identifying information is one of the main goals of the stringent regulation of these weapons, the BATFE has to date allowed the background check to be bypassed through the use of gun trusts.
However, starting on July 13, the background check requirement will be enforced for any “responsible person” listed in the trust, effectively closing the loophole.
Because legal entities such as gun trusts are a legal fiction — applying to the BATFE to purchase a silencer with a gun trust effectively nullifies the required fingerprints and mugshots that must be submitted by individuals.
It further bypasses the requirement that a local law enforcement officer sign off on the application before it is sent to the BATFE, and makes a background check impossible, (because legal entities have no personal history.)
The new rule may be understood as the legislature’s attempt to “pierce the corporate veil” of these gun trusts, enforcing the background check requirements onto the individuals who will actually be shooting these weapons.
However, the new rules will not apply retroactively, meaning that many existing trusts will be ‘grandfathered in.’ In addition, NFA firearms currently registered to existing trusts will not be affected by the change.
For the many attorneys who have built entire new practice areas by taking advantage of the current regulatory definitions, the upcoming rule change is far from welcome. However, for those concerned about the inconsistent enforcement of the requirements to purchase these dangerous weapons, Rule 41F is a victory.
According to DC criminal lawyer Jason Kalafat, “While this revision is aimed at closing the gun-trust loophole, be assured that savvy gun lawyers are already working on new and creative ways around it.”
It is undisputed that the background check requirement was originally meant to apply to everyone seeking to own and use NFA firearms; the fact that it has taken this long for the loophole to be addressed is a telling illustration of the many layers of bureaucratic red tape enshrouding federal firearms regulation.
