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Carter Horton

Keywords

firearms, ownership of firearms, trusts, Second Amendment, National Firearms Act, NFA, Bureau of Alcohol Tobacco Firearms and Explosives, ATF, guns

Abstract

Individual ownership of firearms has been one of the storied rights of our country. During the Founding Era, firearms were plentiful among the colonists, providing them with protection and the means to hunt for food to sustain their communities. With a rebellion brewing against Great Britain, the ill-equipped colonial governments primarily relied upon the personal arms of their people for defense. Arguably, this fundamental right to bear arms played an important role in sparking the American Revolutionary War at the Battles of Lexington and Concord, in which the British attempted to seize an arms cache from the colonists. The subsequent victory in the American Revolution and ratification of the Second Amendment cemented the right of firearm ownership, among other rights, into American culture.

Currently, millions of Americans own firearms in their home, and many own multiple firearms. Recently, National Firearms Act (“NFA”) weapons have grown in popularity and have become more accessible to the general population. NFA weapons are “[s]pecial types of firearms” that include short-barreled rifles, short-barreled shotguns, suppressors, machine guns, destructive devices, and “any other weapon.” Of these NFA firearms, suppressors are the most popular NFA firearm purchased. Historically, NFA firearms have been under strict regulation and require ownership approval from the ATF. Trends have shown the ATF has significantly shortened the waiting period for approval of individual ownership applications when compared to the waiting period for approval of trust ownership applications. When comparing the benefits of owning NFA firearms within a well-drafted firearm trust with those of individual ownership, NFA firearm trusts provide benefits that the individual form of ownership does not, such as estate planning flexibility, the ability for other people to lawfully possess the firearm, and a roadmap to NFA compliance. While NFA firearm trusts are the safest and most beneficial way to own NFA firearms, there are still apparent hazards to owning NFA firearms, regardless of the ownership method chosen.

This Comment argues that firearm trusts are a preferable vehicle for owning NFA firearms as compared to individual ownership and that our legal system can take steps to remove some of the dangerous pitfalls that come with owning NFA firearms. When weighing the merits of each form of ownership, the benefits of trust ownership far outweigh the risks involving trust ownership and the potential benefits of individual ownership. Likewise, NFA firearm ownership can be made safer for people without exposing them, or their loved ones, to unnecessary criminal liability. Part II discusses necessary background information, including the history of firearm ownership, what NFA items are, the history of NFA firearm legislation and regulation, and trust law basics. Part III discusses the forms of how an NFA firearm may be owned and the logistics of purchasing NFA firearms under each form of ownership. This section will also compare individual ownership and firearm trust ownership by using a cost-benefit analysis. Part IV argues that Congress, the Judiciary, the ATF, states, and attorneys should combat the hazards present within NFA firearm ownership. Part V discusses future legislative and judicial implications that could have an impact on the efficacy, necessity, and function of firearm trusts. Part VI concludes that firearm trusts are the most beneficial and safest form of NFA firearm ownership for the foreseeable future.

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