Constructive Possession and Trusts

NFA regulations  require that firearms be registered to and controlled by one ‘person.’ If any other ‘person’ possesses the item then the registrant may be charged with unlawful transfer of a regulated firearm and the possessor charged with unlawful possession of the firearm. These are felony charges and carry severe financial penalties, up to ten years in jail each, and removal of civil liberties including the right to own and bear arms. Therefore it is important that a purchaser of a NFA firearm understand the law and do all he or she can to stay compliant.

You probably noticed the use of scare quotes around ‘person’. This is because a ‘person’ includes both individuals and entities. An individual is a single person, and a firearm registered to an individual can only be possessed by that single individual. An entity is also a ‘person’, but it is made up of many natural-born persons. A firearm registered to an entity can be possessed by any number of authorized agents of the entity. For a trust, the firearm can be possessed by any trustee of the trust. By using an entity to purchase and own NFA firearms, more than one natural-born person can possess the item.

Some of you will see the immediate benefit in this. Perhaps you shoot with friends, your wife wants to take the silencer out, or your adult children occasionally borrow a firearm. By using a trust each potential possessor can be listed as a trustee and therefore able to legally possess the firearms.

Others of you have no intention of letting anyone else borrow your firearm. Your spouse may have no interest in guns, your children are too young to shoot, or you just don’t trust a buddy with a multiple thousand dollar machine gun. Why would you need a trust? Constructive possession.

Constructive possession is the legal theory that someone who can access or control an item, even if they have not, is in possession. This is most commonly applied to possession of contraband, such as in a car of four people who owns the marijuana in the bag on the console? The answer: They all do; let the judge sort it out. How does this apply to a NFA firearm? Where will you store the firearm? Does anyone else have access to the safe or keys to the house? If something happened to you, who would take care of your stuff?

If your spouse, parents, or friends share a house with you they access anything in the home unless it is under another lock. If the item is in a gun safe, anyone with the code to the safe has theoretical access and control. I’ve met very few husbands who didn’t give their wife the safe combination. Granted, many times the wife never opens the safe or only does so to store jewelry or money. But mere knowledge of the combination, or possession of the key can qualify an individual for constructive possession.

Constructive possession is also an issue if you become incapacitated or upon your death. The persons charged with maintaining your home or belongings will inadvertently have access to the NFA firearm. Regulations allow executors to transfer NFA firearms, but there is no such provision to protect a care taker.

All of these issues can be easily avoided through the use of a NFA Firearms Trust. You can make your family members and friends trustees allowing them current use of the firearms. Additionally, you can list anyone who may access the firearm sometime in the future as a trustee and thereby eliminate any concern of constructive possession. With just a bit of prior planning you can rest assured that you comply with the NFA and reduce your risk of potential possession issues.