Recently there have been discussions on the listserv of the National Center on Elder Abuse regarding the possession and use by elderly persons of firearms. These discussions lead, logically, to concerns about disposition of firearms upon an owner's death.
One of the students in my current Elder Law class at Widener University School of Law (Harrisburg Campus), accepted my invitation to write an article on such a topic for posting on this Blog.
Following is the informative article written by Joshua G. Prince [joshua@princelaw.com] (as revised, supplemented & edited by me for posting here).
Grandpop’s Machine Gun in the Chest, Part I
What does an attorney do when, after an elderly person dies, a search of the home reveals a gun?
This issue faces estate attorneys quite frequently, especially in pro-gun states, such as Pennsylvania. Most attorneys, even those not proficient in firearms law or firearms in general, will properly handle the transfer of a typical firearm.
What does an attorney do when the search reveals an automatic weapon -- essentially, a "machine gun" (or "machinegun" under federal law)?
Uncertainty in proper disposition of such a firearm could lead to one’s client being convicted of possession of an unregistered firearm, punishable by up to 10 years, $250,000 in fines and the forfeiture of the weapon and any “vessel, vehicle, or aircraft” used to conceal or convey the firearm. [1]
Initially, an attorney or personal representative should investigate whether there are any firearms among estate assets. What the heirs believe are just routine firearms, may actually be machineguns. Thus, consider carefully if a firearm is a revolver, a bolt action, a semi-automatic, or an automatic firearm. The distinction is crucial.
The Bureau of Alcohol Tobacco Firearms and Explosives (BATFE) provides online identification assistance in a two part slide presentation, Identification of Firearms, Part I and Identification of Firearms, Part II. Furthermore, with a picture and description of the firearm, an attorney or personal representative could determine the character of a firearm on Subguns' NFA Firearms Discussion Board. Its contributors pride themselves on the identification and proper procedures for determining the status of a specific firearm. Also, a Federal Firearms Licensed (FFL) dealer can be consulted to make such a determination.
Machine guns are governed by several laws. The main statutes are the National Firearms Act (NFA of 1934) [described by Wikipedia here] [2], the Gun Control Act (GCA of 1968), [described by Wikipedia here] [3], and the Firearms Owners Protection Act (FOPA of 1986) [described by Wikipedia here]. [4]
The consequences of unauthorized possession or use of such a firearm can be severe. For an example of such consequences in a federal criminal law setting, see: United States v. Carter, a Seventh Circuit Court of Appeals case decided October 17, 2006, regarding the definition of "machinegun" and also "silencer".
The definition under federal law of a "machinegun" is “[A]ny weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” [5]
Any machine gun must be registered in the National Firearms Registration and Transfer Record (NFRTR). [6] A firearm for which there are no or incomplete records in the NFRTR is considered contraband and is subject to seizure and forfeiture by BATFE. [7]
Thus, once a determination is made that a firearm is a machine gun, an attorney or fiduciary is advised to search for the registration of that firearm, since it is common for such a weapon not to be in the registry. [8]
If the attorney or fiduciary is unable to find a registration, the weapon's status can be confirmed by contact in writing to BATFE. [9] This inquiry should be accompanied by documentation showing the executor’s or administrator’s authority, under state law, to represent the decedent and to dispose of the decedent’s firearms. Although BATFE is prohibited from disclosing tax information (which all NFA registrations are), it may disclose the owner information of the firearm, to persons lawfully representing registrants of NFA firearms. [10]
If the registry does not show the weapon to be registered, BATFE requests that the administrator or executor contact the local BATFE branch office, so the weapon can be destroyed. But there are other alternatives.
The cheapest registered machine gun runs around $4,000, with some transferables (the term used for weapons which are registered) going for upwards of $200,000. While these are the prices for complete “transferable” weapons, the price of the parts to such weapons may also be high.
While BATFE desires to dispose of such weapons, in entirety, including parts, which in themselves are not machine guns, BATFE allows for a weapon to be decommissioned instead.
“The preferred method for destroying a machinegun receiver is to completely sever the receiver in specified locations by means of a cutting torch that displaces at least one-quarter inch of material at each cut location.” [11]
“A machinegun receiver may also be properly destroyed by means of saw cutting and disposing of certain removed portions of the receiver.” [12]
BATFE has published preferred procedures for the destruction of specific machine guns. [13] By destroying the receiver, you are enabling the estate or the beneficiary of the weapon to sell the “parts”.
Furthermore, if the estate does not wish to destroy a war relic or an antique firearm, the estate may donate the weapon to a museum. Museums are accustomed to such transfers and will usually handle the contact with BATFE and transfer of the weapon.
The downside is two-fold. For one, the estate will not receive any money for the weapon, unlike the sale of the parts. Furthermore, if BATFE should offer a new amnesty to allow one in possession to register a previously unregistered machinegun, the estate (or its distributee) no longer would have possession of the firearm. If however, the estate cuts the receiver, per BATFE specs, and the estate's distributee of the weapon's parts would retain them "in kind", it could be possible, during such an amnesty, to register the receiver later, after it would be “repaired.”
Thus, the issues of firearms in estates can be daunting, especially to those with little or no knowledge of current firearms laws.
As the veterans of past wars who retained collectible firearms, or the elderly gun collectors who preserved them, die in greater numbers, the issue of "war bring-backs" will surface, requiring that more estate attorneys and fiduciaries deal with these complex legal issues.
For example, the NFA Owners Association promotes pending federal legislation on such issues on its homepage.
NFAOA supports H.R. 1141, proposed legislation to allow veterans and their heirs to register historic firearms obtained while the United States was at war or during foreign conflicts (click here to read H.R. 1141, which is identical to H.R. 2088, which was introduced in the 109th Congress but was not passed).
NFAOA continues to support a Congressional request for the Department of Justice Office of Inspector General (DOJ-OIG) to investigate ATF's administration of the World War II War Trophy program, as well as the 1950s era DEWAT program, and its impact on veterans and their heirs (click here to read the letter). * * *
On the other hand, BATFE has known since at least 1981 that several thousand machine guns are registered to dead people; yet, they have failed to take any action. [14]
Footnotes:[1] 26 U.S.C.S. §§ 5861(d),(j); 26 U.S.C.S. § 5872; 49 U.S.C.S. §§ 781-788.
[2] 26 U.S.C.S §§ 5801-5872; 73 P. L. No. 474; 48 Stat, 1236.
[3] 90 P. L. 618; 82 Stat. 1235, § 921.
[4] 18 U.S.C. § 922(o)(1) (1986); 99 P.L. 308; 100 Stat. 452, § 102(9).
[5] 26 U.S.C.S § 5845(b).
[6] 26 USCS § 5841.
[7] U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal Service, and General Government Appropriations, Treasury Postal Service, and General Government Appropriations for Fiscal Year 2002, Part 3, Statements of Members of Congress and Other Interest Individuals and Organizations, 107th Cong., 1st Sess. (Washington, GPO, 2002), p. 9.
[8] U.S. Congress, Senate Committee on Appropriations, Oversight Hearings on Bureau Alcohol, Tobacco & Firearms, 96th Cong., 1st Sess. (Washington GPO 1979). P.39. (investigating why one, J. Curtis Earl, was declared to be in illegal possession of FOUR HUNDRED AND SEVENTY FIVE machineguns; yet, he had the registration paperwork for all of the firearms.)
[10] Id.
[11] Id. at 21-22.
[12] Id. at 22
[13] Id. at Appendix B (ATF Rulings 2003-1, 2003-2, 2003-3, 2003-4)
Update: 09/13/07:
The editor of the website of the American College of Trust & Estate Counsel requested permission to repost this article, with a link to this post, on its "members only" area, which Josh & I granted.
Also, this entry was the subject of a message posted on September 12, 2007, by James C. Counts, II, CPA, on the American Bar Association's Tax Section Listserv:As advisors to clients each of us may work with a fiduciary that calls you and asks what do I do with Grandpa's machine gun? To have idea what you need to do you might wish to read this article.
I have read the article and it alerts the reader to legal issues if a fiduciary should find a machine gun in the assets of someone. What are the legal issues involved and what should the fiduciary do?
The article has several links to authoritative sites for governmental agencies and related nonprofit sites.
For anyone that does fiduciary work I would suggest you read the article and bookmark some of the sites the author provides.
If the fiduciary does not do what is required they could have some legal problems for themselves.
In any case the basic article only took a few minutes to read. You can spend whatever time reading the sites linked in the article.
It has also been the subject of postings on many gun-related blogs & forums, including the Pennsylvania Firearm Owners Association Discussion Forum.
On September 13, 2007, Professor Gerry Beyer posted an entry on the Wills, Trusts & Estates Prof Blog, which he edits, entitled "Dead People With Guns", referencing this post:One of the growing estate planning niches is preparing for the death of gun owners and handling the estates of gun owners.
Here are two sites which have detailed information about the issues and the solutions: - Neil E. Hendershot, "I bequeath my machine gun to . . ." , PA Elder, Estate & Fiduciary Law Blog, Sept. 12, 2007: * * *
David M. Goldman, Florida Gun Trusts or National Firearms Trust, Florida Estate Planning Lawyer Blog, July 30, 2007, Wood, Atter, & Associates, National Firearms Gun Trust: * * *
The second site discusses the legal tool of a "Firearms Trust" (or "Gun Trust"), which provides special powers to a trustee not normally considered or granted, to carry out specified purposes of maintenance & disposition of weapons.
See also: BATFE Special Notice, "Transfers of National Firearms Act Firearms in Decedents' Estates" (Rev 02/23/06). It notes contact information for inquiries:
Bureau of Alcohol, Tobacco, Firearms & Explosives
National Firearms Act Branch
244 Needy Road
Martinsburg, WV 25405
Phone: 304 616-4500
Fax: 304 616-4501
Update: 09/14/07:
I exchanged email messages today with David M. Goldman, Esq., of Jacksonville, Florida, who authors the Florida Estate Planning Lawyer Blog. He referenced my post in his own, dated September 14, 2007, entitled "Guns after Death". He adopted the same great graphic supplied to me by Joshua G. Prince.
Speaking of Josh, he offered to send to anyone who would email a request to him [joshua@princelaw.com], a copy of his original, unedited, and less politically-correct (my words) version of his article. So, contact him if you are interested.
I also received an email message in response to this post from a former student & a good friend, Stephen R. Maitland, Esq., now a member of the staff of the Army Heritage and Educational Center, in Carlisle, PA.
He offered owners of weapons an opportunity to consider:
[Y]ou can let people know that, as a federal museum facility, the Army Heritage and Education Center in Carlisle can accept working machine guns into its collection.
Whether AHEC accepts a weapon depends on the history and condition of the weapon and how many of that type we have.
So before sawing through the receiver, please advise heirs and attorneys to check with us first!
We can also accept Medals of Honor, which, by statute, may not be sold.
I note that the Army Heritage and Education Center is supported by a non-profit foundation, the Army Heritage Center Foundation, also headquartered in Carlisle, PA.
Steve's contact information is: Stephen R. Maitland, Esq., Development Officer, Army Heritage Center Foundation, P.O. Box 839, Carlisle, PA 17013-0839; Phone: 717-258-1102, Ext.25, or or 1 866 ARMY HTG (toll free); Fax: Email: smaitland@armyheritage.org.
Update: 10/19/07:
Joshua G. Prince wrote a sequel to his original posting, which is entitled "Grandpop's Machine Gun in the Chest, Part II". I posted it on this Blog on Friday, October 19, 2007. See: "I Inventory the SBR, AOW, DD, & Suppressor at . . .".
Update: 06/27/08:See: "Right to Keep and Bear Arms: Part I", posted on this Blog.
On September 12, 2007, Montgomery County (PA) formally joined the fight for reconsideration of the proposed move of the Barnes Foundation from that county and into Philadelphia County, by filing a petition for reconsideration, and holding a press conference to announce the filing.
