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Part II from the Machine Gun Lawyer

Greg posted Part II.   If this is true, then I think most NFA rentals are probably unlawful?

The biggest misconception of the NFA is the definition of Transfer. Most lay people (non lawyers) would use the definition found in a dictionary to interpret a transfer. Unfortunately that is not the way it works with the law. When a word is defined in a statute, you must read the statute with the definition that is contained within. In this case the word transfer creates many pitfalls for the typical consumer. Until recently if you asked anyone if it was ok to let someone else use your silencer, SBR, or Machine Gun while in your presence at the rage, they would almost always say it was permitted.

In fact, this is a violation because it is a transfer under the NFA. Only in the last year or so, since I began pointing it out to consumers has there been anything written on this topic.

I always figured a transfer only happens if you assume physical control over the device outside of the supervision of the person who legally possess it.  In other words, shooting a friends legal subgun on the range is fine.  Taking it home with you is a transfer.

17 Responses to “Part II from the Machine Gun Lawyer”

  1. I forwarded a link to this post to David Goldman. It is certainly an interesting issue that I hadn’t considered before.

  2. Alan says:

    IANAL, but I’ve never heard of that strict an interpretation on “transfer”.

    What Sebastion said in the post is the commonly understood meaning. And I’ve let hundreds of people shoot my SMG.

  3. The average person will define the word transfer based on how he or she uses it in his daily life. However, most statutes define what transfer means. Under the NFA Statute (Section 5845), “The term ‘transfer’ and the various derivatives of such word, shall include selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of.” The term “loaning” means to allow other person to use the firearm without giving up ownership of the firearm. That may be interpreted as allowing another person to use the firearm, even if you are watching the person use the firearm. While other people may interpret this term in a different way, I believe it is best to err on the side of caution.

    As a Jacksonville criminal defense attorney, I have dealt with a lot of firearm cases and other cases dealing with possession. For example, take a sale/delivery of cocaine case. If a criminal defendant gives a bag of cocaine to another co-defendant to hold and tells him if he wants some, he can have it, he can be charged with delivery of cocaine (which is the same crime as selling cocaine). It does not matter if the criminal defendant is standing next to him the entire time or walks away. Applying this example to the transfer of a Title II weapon, it would not matter if the owner of the firearm leaves or watches the other person shoot the firearm the entire time. A transfer is a transfer regardless of the location of the owner.

    Some people may not agree with this definition, but the ultimate decision of what is the definition of “transfer” rest with the court. Most people want to protect themselves and never end up in court litigating the definition of a transfer. A NFA gun trust helps protect against this by listing all of the trustees that have access to the firearm and that may use the firearm. Not just that, it places the authorities on notice of all persons that will be able to use the firearm, because the trust is filed along with the Form 1 or Form 4.

    While it is not likely that a person will get arrested for unlawful transfer of a Title II weapon for allowing another person to shoot the weapon, you never know what can happen. What if an ATF agent is near you at the shooting range and witnesses the transfer? The agent’s personal belief is that Title II weapons should be illegal, period, but they are not. However, he cannot arrest you for that, but he can arrest you for the transfer. He arrests you. It is just not worth the debate of the term.

  4. ParatrooperJJ says:

    Any caselaw to back up that claim?

  5. Alan says:

    No offense to Ms. Veintemillas, but there is an appearance of a conflict of interest in her interpretation of “transfer”.

    I’ve had a SMG for over a decade and I’ve been around title II weapons almost my whole life and I’ve never heard anyone, including cops, say that letting someone else shoot your machine gun, while in your presence, constitutes a transfer.

  6. You don’t have to put it into a trust. It is just safer route and a choice that some people make for this reason and others. Among other things, a trust helps a person transfer the assets upon death and avoid CLEO sign off in most states.

  7. Sebastian says:

    ParatrooperJJ:

    Even if there is an absence of case law, there’s always the question of “Do you want to be the test case?”

  8. Alan says:

    I volunteer to be the test case. I’ve let hundreds of people shoot my SMG while within my arm’s reach. If that’s a transfer then I invite an ATF agent to come arrest me now.

    I bet it’s not gonna happen.

    The last thing we need with the coming administration is lawyers thinking up novel definitions of words that will throw more gun owners under the bus.

  9. Its certainly an interesting thing to consider. I certainly wouldn’t blame lawyers for “thinking this up”… but I would blame an administration who tried to enforce the law this way.

    In fact, we might ought to thank them for pointing out another means that an anti-gun executive branch could put the hurt on otherwise law-abiding machinegun owners.

  10. Sebastian says:

    I agree with both Gregory and Alan. If it is a crime, an awful lot of people are criminals, and the ATF and DOJ have been letting people get away with it for a very long time.

    But … I agree with Gregory, that we can’t blame lawyers for this. They didn’t pass the law. They are not the ones charged with prosecuting it. They are providing a fair assessment of the law. I would argue it errs quite greatly on the side of caution, but a lawyer’s job to advise people of these things.

  11. chris says:

    I do have to agree with the lawyer here… i too have seen cases in FL where people have been charged with distribution of narcotics because of passing around drugs at a party…

    yes, that means that you can be charged with distribution for passing a joint around… technically that is what you are doing.

    now, will the charges stick and will the sentence be severe… well you too can be a test case.

    i dont like the view, nor do i think that there is much likelihood of it being enforced, but im sure it is possible.

  12. JJR says:

    The lawyer is providing sound legal advice; However, if she were placed in the position of defending a client, I would bet a good lawyer would dispute that a rental program is distinctly different from either “loaning” or “leasing” a weapon and argue that those terms imply a longer duration than a rental program of merely a few hours range time, closely supervised. It’s illegal to “loan” or “lease” but it doesn’t say jack about “renting” and *all* gun rental programs (regardless of weapon type) are tightly controlled and restricted to site-use only, and that any DA trying to convict under the statute in that way is unreasonably stretching the intent of the law to get a conviction for a paper-crime. A good lawyer would endeavor to make the judge and jury see that, and with luck, ought to prevail in court, but it’s always a gamble. I know I’d vote to acquit if I sat on such a jury.

    What a lawyer may advise in anticipation of avoiding legal trouble is distinctly different from how s/he would act to defend a client in court. Because court cases are expensive, a good lawyer is looking out for his client’s purse when dispensing sound legal advice. It’s sort of like good situational awareness, avoiding a fight if you can, but knowing how to fight for your life if you can’t. Lawyers do the same thing on the legal battlefield. We non-lawyers may not like to hear what they have to say, or think about the implications (the injustice of it makes your blood boil, and your lawyer actually probably agrees with you on the matter of principle, but principle is only part of the equation unless you’re almost literally made of money), but I do understand why they say what they do.

  13. In addition to my earlier sentiment, I also feel I should make the point that people like Cynthia Veintemillas and David Goldman are precisely the types of people we want on our side. Professional, intelligent, and in a position to make a positive difference with regard to our rights.

    Even if Mr. Goldman overstates the danger, don’t think that this type caution won’t be utterly necessary under an administration who will try every trick in the book to screw gun owners. Title II owners are especially at risk because machineguns don’t have the popular support of deer rifles and duck guns. Weapons regulated by the NFA are low-hanging fruit for anti-gun politicians… just because they aren’t making a stink about Title II guns right now doesn’t mean they won’t later on when they run out of other options. Consider that every victory we have on other fronts backs the likes of Josh Sugarmann into a corner, where they need to “do something” to stay relevant.

  14. I agree with all of you.

    JJR, you are absolutely correct. If I had a client charged under this statute, I would argue the opposite of what I advised about this definition. I do this all the time in civil cases. As a lawyer, I argue whatever works for my client. That is my job, but this is when it comes to litigation. In the matter of NFA trusts and transfers, the case is not being litigated. An NFA trust is merely a safer route to transfer the firearm and is intended to prevent the client from going to court.

    Chris, I agree. It is absurd to charge a law abiding citizen with a crime for allowing another person to enjoy the use of his Title II weapon for purely recreational purposes. The last case that I had that involved illegal possession of a Title II firearm was an attempted murder (drive-by shooting). In that case, the guns were not registered and completely illegal. In my experience, if a person is going to commit a serious crime with these weapons, they are not even going to register them. Why go after a person that does register his weapon and care for it properly, when there are thugs out there committing crimes like the example above? But, there are a lot of people sitting in Florida State Prison for minor crimes that I do not agree with. For instance, why send the homeless crack addict to prison, when you can use him to get the dealer? However, the addict sits in prison why the dealer remains on the streets, because the addict is easier to catch and convict.

    Alan, you are correct as well. You are probably not going to be arrested. Just like when I am speeding up I-95 to Savannah, today, I am probably not going to get a speeding ticket. Even if I do get one, I will not go to jail and may have to pay a small fine. If a person is arrested for an unlawful transfer, that person is going to jail. It is not a risk that I am willing to take. On the other hand, I admire you for volunteering to be the test case. It is people like you that get bad laws overturned in the Supreme Court. It is people like you that make history and fight for our rights. However, it is hard to find people that are willing to possibly put their liberty on the line for a cause. I only want my client to end up in this situation if he wants it.

    Sebastian, thank you. I am the type of person that “over prepares” for everything, and when it comes to criminal law, I don’t think that “over thinking” the law is a bad thing. In criminal law, the best defense is a good offense.

  15. By the way, Greg, I love the “pink lady” on your blog.

  16. Beth loves her new revolver too… now she’s just trying to find a holster she’s happy with.

  17. I was out of town for the past few days but just thought I would fill in a few of the details that seem to me missing. I appreciate the discussion and although it is a fairly typical discussion it has little to do with the reality of the way the legal process or the law works in the United States.

    First let me start by stating that it is not our interpretation that determines who gets prosecuted or arrested or who we are able to keep out of jail.

    Our goal is to provide our clients and others advise on how to keep from having to defend their position. My position is that push given shove, I would rather be shooting, traveling, doing business, spending time with my family or just about anything other than trying to prove that the NFA should be interpreted differently or is unconstitutional. (I believe that parts of it if not the entirety is unconstitutional but not sure that proving that would do any of us any good, in fact it may be much worse to prove now withe current administration)

    Our goals are 1) how to help people acquire Title II weapons; 2) how to protect their family and friends from just or unjust criminal and civil liabilities associated with the improper ownership, transportation, possession, or transfer of Title II firearms.; 3) how to purchase the items correctly so that no liability is created or how to avoid potential liability; 4) what issues should be considered and used to determine who will have access to your items during your life, upon your incapacity, and after you death.

    The possession issue is a very minor issue and although the risk of being arrested might be small, we are forbidden as lawyers to advise our clients a course of conduct that would subject our clients to potentially criminal activity. Just as we could not tell you its ok to let someone drive your car over the speed limit as long as you are in the car, or its ok to be in have someone in your car with an illegal substance, we would not tell anyone that its ok to loan, rent, or participate in any conduct that would be or could be considered a transfer under the what the NFA (valid or not) defines it.

    I cannot tell you the number of police officers we help purchase Silencers, SBRs, or SBS’s that were under the total believe that it was illegal to own or possess these item only a few weeks prior to obtaining one themselves. This is the law enforcement officer, which the majority are, whom you need to protect yourself against.

    Remember the cost to appeal a statute like the NFA to the Supreme court is well in excess of 1 Million dollars today. Why take this risk, even if you can afford it, when you can change your activity and avoid it all.

    The Law enforcement officer or ATF agent who is familiar with Title II firearms is probably much less likely to arrest you for something minor. This does mean you should take an unnecessary risk by participating in a questionable activity.

    Regardless of the issues above, we are more than willing to listen to your personal circumstances, and advise you based on the legal interpretation of the NFA or even based upon what the ATF has advised us as the proper course of action given a particular set of circumstances. Many of these can be found in our FAQs section http://www.guntrustlawyer.com/faqs/ .

    Given the issues surrounding Attorney Client privileges, you should not post your question in a forum like this where others including Law enforcement can read your responses as well as potentially use them against you in the future. Feel free to email us directly or call us to discuss your particular issues. We will not charge to answer questions dealing with the NFA. That is we have yet to charge anyone. I am sure there could be circumstances where it might be necessary, but we would discuss this in advance so that there would be no surprises. You can contact me by email through the http://www.guntrustlawyer.com website or on my cell phone in the evenings or weekends. We are pro Title II ownership and want to help the community in any way we can. If you would like my direct number just email me and I would be happy to forward it to you.

    David Goldman
    Apple Law Firm PLLC
    331 East Monroe Street
    Jacksonville, FL 32202

    Tel (904) 685-1200 Fax (904) 212-0678

    http://www.JacksonvilleLawyer.pro/
    http://www.GunTrustLawyer.com/
    http://www.FloridaEstatePlanningLawyerBlog.com/

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