Retrieved from avguns.com on 4/29/2015.

Fully automatic weapons (Machine Guns or MGs). Short-barreled shotguns (SBS). Short-barreled rifles (SBR). Suppressors (silencers). Wallet guns, pen guns, cane guns, and all of the others which are classified as “Any Other Weapon” (AOW). What do they have in common? These are some of the items Law Abiding Gun Owners (LAGOs) love which are subject to the National Firearms Act (NFA) restrictions, regulations and laws.

Attorney Justin McShane puts a few down range while using his suppressor.

There is a common misconception that machine guns and suppressors are illegal no matter what. While purchasing an NFA item isn’t as simple as purchasing your everyday handgun or long gun, it isn’t impossible in Pennsylvania. It just takes money and patience. But if we see some changes in the near future, it might become a lot more difficult.

In the aftermath of Hurricane Katrina, New Orleans Superintendent Eddie Compass declared “only law enforcement will be allowed to have weapons.” Retrieved from nytimes.com on 4/29/2015.

Items subject to the NFA are regulated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). Those who wish to purchase one of these must go through BATFE, fill out a Form 4, and wait for the appropriate clearances. As an individual, one is required to provide photographs, fingerprints, and a signature from your local “Chief Law Enforcement Officer” (CLEO).

There is an alternative to purchasing as an individual. NFA items can also be purchased through legal entities, such as corporations or LLC’s, or through (firearms) trusts. When these legal entities acquire NFA items, there is currently no requirement for photographs, fingerprints or a CLEO signature.

For quite some time, this has provided an avenue to enjoy NFA items without such a headache. One of the more popular choices has been the NFA Trust (although many of the principles discussed apply to trusts and other legal entities, this discussion will focus on trusts). To be clear, it’s not like an NFA Trust serves as a “loophole” to allow any old person to get their hands on a machine gun or other NFA item. When making an NFA purchase through a trust, a Form 4 and a NICS check are still required. In Pennsylvania, state law independently requires a PICS check for most NFA items. Despite a politician’s claims,  a trust is not “a very artful dodge to get around people who are not capable legally of owning weapons to be able to gain access.”

Using an NFA trust, some practical problems are avoided. As an individual trying to purchase NFA items, your CLEO must sign a document noting his or her approval of your purchase or acquisition. If your CLEO doesn’t like you, doesn’t like LAGOs, doesn’t like guns, or has a particular aversion to certain NFA items, well you’re simply out of luck. There are no federal laws that force the CLEO to approve.

Some states ―Arizona, Kansas, Kentucky and Utah― have recently passed “shall sign” laws, which are set to take effect later this year. These laws require a CLEO to sign NFA applications within a set time frame, so long as the applicant is eligible to possess a firearm. A similar bill passed in Oklahoma, and is awaiting signature from Governor Mary Fallin. States such as Ohio, Tennessee and Alaska already have these kind of laws.

As of now, Pennsylvania has no such law. So there is no Pennsylvania law to force the CLEO to approve. 

 What is 41P?

Docket No. ATF 41P (“41P”) is a Department of Justice proposal which would amend BATFE’s regulations, and change how owning a trust or other legal entity affects NFA transfers. If the amendments proposed are ultimately adopted, each legal entity, including trusts, would have to designate a “responsible person.” That “responsible person” would be required to submit fingerprints and photographs, and obtain a signature of approval from the local CLEO. In other words, the incentive to utilize an NFA trust would be tremendously diminished. The process would not differ from that of an individual applicant. One of the chief benefits of a NFA Firearms Trust ―being able to purchase, acquire or build an NFA item without submitting photographs and fingerprints, and without your CLEO’s blessing― would essentially vanish.

Recently, the National Shooting Sports Foundation (NSSF) reported that BATFE confirmed that it is “unlikely to publish Notice 41P (NFA Trusts) as a Final Rule for quite some time.” While that is good news for now, it doesn’t entirely alleviate the issues presented by 41P. All we know it the wait has been long, and it’s likely to continue.

With 41P still lurking, can anything be done?

Option 1: Even Though Comments are Closed, Respectfully Voice Your Opinion

The proposal goes back to late August of 2013. BATFE took comments on the proposal until December 9, 2013. In that period of time, dissenting LAGOs from around the nation made their voices heard, as BATFE received over 9,500 comments. Today, almost a year and a half after the comment period closed, BATFE continues to review these comments.

Recently, we all witnessed what appeared to be the power of public comment even outside the formal comment structure with BAFTE. Of course, we’re talking about the “green tip ban.”  BATFE proposed a new framework for determining whether ammunition is “primarily intended for sporting purposes.” The new framework would have effectively banned M855 “green tip” ammunition. However, in response to over 80,000 comments which were mostly “critical of the framework,” BATFE put the entire operation on hold, at least for now [NSSF’s recent “Bullet Points” estimates that there have been 310,000 comments regarding the green tip ban to date].

Trop Gun Shop did their part with the #savegreentip campaign. Visit wewillnotbackdown.com & tropgun.com for more.

Is something similar in store for 41P? Nobody can be certain. There were certainly far fewer comments submitted for 41P than the green tip ban, but that is not necessarily outcome determinative. Furthermore, comments to BATFE are not the only way to voice concerns. In this day and age, there are numerous outlets to express an opinion. Many have taken to politely and respectfully utilizing these outlets to oppose 41P. Word travels fast.

Option 2: Buy It Now

Two in the bush. Retrieved from sub-silentsuppressors.com on 4/27/2015.

Can in the hand. Retrieved from http://www.thegunmag.com/everything-you-need-to-know-about-legal-suppressors/ on 4/27/2015.

Another approach LAGOs have taken is “get what you can, while you can.” This method is undoubtedly effective. Some may criticize the approach, using “the sky is falling” rhetoric. But you can’t really argue with the old saying:  “a can in the hand is worth two in the bush.” Those who make a purchase through an NFA trust now can be certain to avoid the CLEO hassle.

This partially explains the recent surge in the use of NFA trusts, but trusts have been increasingly popular as it is. BATFE has reported that 2008 saw 15,000 NFA transfers to trusts or other legal entities, while there were 39,000 in 2012.

Attorney Justin McShane shows us how quiet his suppressor is. Listen to that.

Setting up an NFA trust can be fairly painless. We do them for U.S. Law Shield members at a heavily discounted rate and generally turn them around within 24 hours. As long as you remain a USLS of PA member in good standing, any changes, questions or amendments to it are totally free.

We’ve had members sign up for a trust and submit their completed trust with their Form 4 for a purchase just days later. They found comfort in taking the fate of a purchase they had in mind out of CLEO’s hands. So that is certainly another way to respond to 41P.

Option 3: Do Nothing

Of course, there’s always the option to simply wait and see what happens. If 41P does not go through, you will be in the same position you’d been previously. You’ll have your money, and no NFA items. If it does go through, you’ll have to submit fingerprints and photographs, and deal with your CLEO should you ever want to buy a suppressor, machine gun, SBR, SBS, etc. Maybe that isn’t a big deal to you. But some suggest the battle is much more important than the issues exclusive to 41P. Could this entire process represent a pattern of BATFE extending its reach? If you don’t believe so, then doing nothing is always an option.

Would 41P Make NFA Trusts Worthless?

Absolutely not. There are several benefits to having an NFA Trust. Because NFA transfers to trusts do not currently require photographs, fingerprints and CLEO approval, 41P would eliminate that particular benefit. But with a trust, once acquired, NFA items can be lawfully possessed by co-trustees. The trust is also very useful for ensuring that your NFA items are properly distributed when you are no longer among us (or if you are disqualified due to a mental health event or a criminal conviction).

Attorney McShane again. This time he demonstrates unsuppressed vs. suppressed, side by side.

Even if BATFE is unlikely to do so for “quite some time,” one can’t help but wonder how much longer BATFE can possibly take before they make a decision regarding 41P. Like we said, it’s been almost a year and a half. While there is still time, Penn LAGOs can choose to respond how they please. It may be beneficial to choose a course of action sooner rather than later, to avoid having that decision forced upon you. Is “quite some time” one month? Six months? Two years? Nobody knows. At some point, 41P will either be wedded to the LAGO community, or a distant memory. We’d prefer to prepare for the former, and hope for the latter.