What does an attorney do, when he/she is confronted with the fact that grandpop died, and in his chest, there was a gun? This issue faces estate attorneys quite frequently, especially in pro-gun states, such as Pennsylvania. While most attorneys, not proficient in firearms law or firearms in general, will properly handle the transfer of a typical firearm, the issue arises when the firearm, unbeknownst to the attorney, is a machinegun. This uncertainty can 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
The first issue, any attorney working with an estate must determine, is whether there are any firearms in the estate. After determining that there are firearms in the estate, the attorney must verify whether the firearm is a revolver, bolt action, semi-automatic, or automatic firearm. The distinction is crucial. While the most well intentioned attorney would call upon a Federal Firearms Licensed (FFL) dealer to make the determination, such an interaction may not be in the client’s best interest. An attorney, for issues to be discussed shortly, should take all possible measures to determine the character of the weapon(s) in the estate. One place where an attorney, with a picture and description of the firearm, can determine its character is on http://subguns.com/boards/mgmsg.cgi, where individuals pride themselves on the identification and proper procedures for determining the status of a specific firearm. Moreover, the Bureau of Alcohol Tobacco Firearms and Explosives (BATFE) provides some identification assistance with http://www.atf.gov/docs/Identification_of_Firearms_pt1.pdf, and http://www.atf.gov/docs/Identification_of_Firearms_pt2.pdf.
Machineguns are governed by several laws, which are too vast to delve into for this article. The main statutes are the National Firearms Act (NFA of 1934),2 the Gun Control Act (GCA of 1968),3and the Firearms Owners Protection Act (FOPA of 1986).4 The definition of a machine gun 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 machinegun must be registered in the National Firearms Registration and Transfer Record (NFRTR).6 Firearms, for which there are no or incomplete records in the NFRTR, are considered contraband and are subject to seizure and forfeiture, by the BATFE.7
Thus, once a determination is made that the firearm is a machinegun, the attorney is advised to search for the registration of the firearm, since it is not unusual for a registered weapon, not to be in the registry.8 If the attorney is unable to find the registration, he is advised contact the BATFE, in writing, to determine the weapons status.9 This inquiry should be accompanied by documentation showing the executor’s or administrator’s authority, under State law, to represent the decedent and dispose of the decedent’s firearms. Although ATF is prohibited from disclosing tax information, which all NFA registrations are, the ATF 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, the BATFE requests that the administrator or executor of the estate contact the local BATFE branch office, so the weapon can be destroyed. While most good intentioned attorneys would follow the BATFE’s suggestion, one may be doing a disservice to his/her client. The cheapest registered machinegun runs around Four-Thousand dollars, with some transferables (term used for weapons which are registered) going for upwards of Two-Hundred Thousand. While these are the prices for transferable, the price of the parts to these weapons may be just as valuable.
While the BATFE desires to dispose of the weapon, in entirety, including parts, which in themselves are NOT machineguns, the BATFE allows for a weapon to be decommissioned. 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.11However, A machinegun receiver may also be properly destroyed by means of saw cutting and disposing of certain removed portions of the receiver.12 The BATFE has published preferred procedures for the destruction of specific machineguns.13 By destroying the receiver, you are enabling the estate to sell the parts, which could constitute a significant amount of money.
Furthermore, if the estate does not wish to destroy a war relic, the estate may donate the weapon to a museum. Museums are accustomed to such transfers and will usually handle the contact with the 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, and a slightly contested topic, if the BATFE should offer a new amnesty, where one can registered a previously unregistered machinegun, the estate no longer has possession of the firearm. If however, the estate cuts the receiver, per the BATFE specs, and retains the parts, it may be possible, during an amnesty, to register the receiver, after it being repaired.
Thus, the issues of firearms in estates can be daunting, especially to those with little or no knowledge of current firearms laws. As our veterans of the World Wars begin their journey into the next life, the issues of war bring-backs will surface, requiring that more estate attorneys deals with the complex legal issues that they entail. Moreover, attorneys must be cognizant of the real possibility that what the heirs believe are just firearm, may actually be machineguns. More interesting is the fact that the 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
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.)
9 BATFE, ATF National Firearms Handbook, 58 (June 2007) available athttp://www.atf.gov/firearms/nfa/nfa_handbook.
11 Id. at 21-22.
12 Id. at 22.
13 Id. at Appendix B (ATF Rulings 2003-1, 2003-2, 2003-3, 2003-4)
14 Deron Dobbs, Status Report National Firearms Registration and Transfer Record, 15 (1981), available at http://www.nfaoa.org/documents/DeronDobbs.pdf.