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ATF may have accidentally defanged Hughes Amendment

Did the BATFE accidentally make us almost as free as Iraqis?
Did the BATFE accidentally make us almost as free as Iraqis?
Photo © Oleg Volk. All rights reserved. Used with permission.

Let's start the weekend right, with a hearty guffaw at the expense of the Bureau of Alcohol, Tobacco, Firearms and Explosives, and their apparently incurable inability to grasp the law of unintended consequences. "What did they do this time," you ask, "accidentally remove some short-barreled shotguns from National Firearms Act (NFA) purview?" Nah--that was years ago. Also years ago was their accidental allowance of tens of thousands of unregistered (but "legal") machine guns.

The current situation involves the Hughes Amendment--the pernicious poison pill (the actual passage of which is quite dubious) that attached itself, leech-like, to the otherwise much needed Firearm Owners Protection Act (FOPA) of 1986. Under former Congressman William Hughes' (D-NJ) amendment, no fully-automatic firearm that was not already registered by May 19, 1986 can ever be registered, and thus can never be legally owned by private citizens. This, of course, has vastly and artificially inflated the price of the legal pool of pre-1986 machine guns, because their number has been capped.

Now, though, the Prince Law Offices, P. C. blog, reports that the BATFE, in trying to impose more regulatory hoops (they simply cannot help themselves), may instead have inadvertently opened up a detour around the Hughes Amendment. It's a bit complicated, but the gist is that a person picking up an NFA-regulated item (a suppressor, in this particular case) on behalf of a trust (trusts are one way of easing the regulatory hoops of NFA item ownership--although the BATFE is trying to make that more difficult, as well) will have to undergo a National Instant Criminal Background Check System (NICS) check, even though the item would belong to the trust, and not to the person.

Here's why, the BATFE tells us:

Because unincorporated trusts are not “persons” under the GCA, a Federal firearms licensee (FFL) cannot transfer firearms to them without complying with the GCA. Thus, when an FFL transfers an NFA firearm to a trustee or other person acting on behalf of a trust, the transfer is made to this person as an individual (i.e., not as a trust). As the trustee or other person acting on behalf of the trust is not the approved transferee under the NFA, 18 U.S.C. 5812, the trustee or other person acting on behalf of a trust must undergo a NICS check.

But here's the thing: the language of the Hughes Amendment bans transfers of post-1986 machine guns to a person, which we have just been told that an unincorporated trust is not. Therefore, the Bureau seems to have painted itself into something of an awkward corner when someone applies for a new machine gun on behalf of a trust.

As the Prince Law Offices blog tells us, that has already happened:

I will continue to update our viewers, as I have already submitted a Form 1 Application for a minigun…oh hell yeah I did…

Gotta like that.

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