"I bequeath my machine gun to . . .

"

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

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]

“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]
"I Inventory the SBR, AOW, DD, & Suppressor at . . ."

The previous posting on this Blog, "I

bequeath my machine gun to . . .", garnered such great interest -- both
from professionals and from gun enthusiasts -- that Joshua G. Prince wrote a
follow-up article, "Grandpop’s Machine Gun in the Chest, Part II", for
posting.

Josh is one of the students in my current Elder Law class at Widener

University School of Law (Harrisburg Campus). As before, I edited the
article for posting here. We hope that you find it useful on this somewhat
arcane area that may affect a few estate administrations.

Grandpop’s Machine Gun in the Chest, Part II

As an estate attorney, have you ever made a determination that a cane or pen, in an
estate, is not a firearm? Have you ever measured the length of a rifle’s or shotgun’s
barrel? What about determining whether a 2 liter bottle is actually a sound reducing
device for a firearm, classified as a silencer? After finding a shotgun, have you ever
inquired as to whether it is classified as a “destructive device?”

While some may be chuckling, I assure you that your client will not be when faced with
up to ten (10) years in prison and two-hundred and fifty thousand dollars in fines.
It continues, “A barrel length so determine which is less than 18 inches in length on a
shotgun or less than 16 inches on a rifle, will establish that the weapon comes within the
purview of the National Firearms Act.”[4] Furthermore, the overall length of a shotgun or
rifle is, “[T]he distance between the extreme ends of the weapon measured along a line
parallel to the center line of the bore.”[5] It must be noted that a pistol, with a shoulder
stock, whether or not attached, may constitute a SBR.[6]

An AOW is defined as, “[A]ny weapon or device capable of being concealed on the
person from which a shot can be discharged through the energy of an explosive, a pistol
or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed
shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more,
less than 18 inches in length, from which only a single discharge can be made from
either barrel without manual reloading, and shall include any such weapon which may
be readily restored to fire. Such term shall not include a pistol or a revolver having a
rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the
shoulder and not capable of firing fixed ammunition.”

Traditionally, AOWs included gadget devices, Nazi belt buckle firearms, and glove
firearms.[7] Today, AOWs also include cane, cell phone, crutch, and pen guns, pistols
with a vertical/forward grip, and other disguised firearms. Currently, the BATFE asserts
that a pistol in a leather wallet holster is an AOW,

A suppressor/silencer is a device for “[S]ilencing, muffling, or diminishing the report of a

portable firearm, including any combination of parts, designed or redesigned, and
intended for use in assembling or fabricating a firearm silencer or firearm muffler, and
any part intended only for use in such assembly or fabrication.”[10] Over the past
decade, there have been some interesting devices determined to be suppressors.

In Virginia, a fuel filter, which was modified to thread on the end of a .22 caliber rifle
barrel, was a suppressor, because it reduced the noise of the gunshot. and flashbangs.
[18]

However, these should, and in many cases did, fall under the exception of “any device
which is neither designed nor redesigned for use as a weapon.” Gary R. Collens
841 West Lewiston
Ferndale, Michigan 48220

Dear Gary