The American Silencer Association has published an excellent statement on ATF 41P. ASA is a heroic group that has met with great success this year in a number of states on silencer hunting bills and other important legislation for owners of firearms regulated by the National Firearms Act (NFA). ATF 41P is a proposed regulatory change to the NFA process that will greatly reduce the ability of millions of Americans to purchase and make silencers and other NFA firearms. ASA also provides helpful instructions for gun owners and other concerned members of the public who have not yet submitted a comment on the proposed regulations. They even have templates for individual owners and for folks who use trusts, corporations, or other legal entities to hold their NFA items.
As discussed here previously, ATF 41P would institute an effective prohibition on silencers and other NFA items in jurisdictions with unfriendly law enforcement. While the federal bureaucracy is forbidden from arbitrarily and disuniformly diminishing people’s rights, the chief local law enforcement (CLEO) sign-off requirement effectively delegates this unconstitutional work to local law enforcement, who are not obligated to sign, regardless of whether or not the applicant is similarly situated and similarly qualified to others who receive a sign-off.
Up until now, if you were in an unfriendly jurisdiction, you could avoid this bureaucratic obstacle by filing Form1s and Form 4s as a trust (or business entity), rather than as an individual. This also allows folks to avoid the excessive paperwork associated with the process for individuals—fingerprint cards and passport-style photographs—in addition to the CLEO sign-off.
Though gun trusts would continue to provide estate-planning and co-ownership benefits for gun owners, under the proposed regulations trusts would require more paperwork than that filed by individuals because ATF wants all “responsible persons” (meaning people with the present power to possess the trust property) to do the same paper chase required of individual applicants. In other words, if your trust has six co-trustees, ATF is proposing that it be six times as hard for you to complete an application to make or transfer a single NFA firearm.
This is in spite of the fact that good gun trusts drafted specifically for holding NFA firearms actually help ensure compliance with federal, state, and local gun laws, and disqualify prohibited persons from possessing NFA items. Moreover, a good trust document also helps prevent future violations of the law because it provides clear instructions to successors about exercising care in dealing with property regulated by the NFA, so that there are no unwitting violations of the law when trust property is distributed in the future.
If you have not already commented on this proposed regulation, remember that you only have until December 9th to do so.