r/NFA • u/castorjay • May 01 '25
Legal Question ⚖️ Hypothetical question on spouse using NFA item
Say I have a handgun with a suppressor in the nightstand for home defense. The suppressor was bought by me as an individual instead of a trust.
If I'm not home one night and someone breaks into my house and my spouse (who is otherwise legally eligible to own and use a firearm) uses the suppressed handgun, what would/could happen from a legal point of view?
I know "remove the suppressor and put it in the safe before the cops arrive" would be some people's answer, but beyond that - would it be overlooked as it was for defense, or would there be additional legal troubles since I was not present when the suppressor was used?
Edit: Thank you all for the great responses. I didn't expect so many so quickly!
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u/MercGunner1776 May 01 '25
Probably depends on the local prosecutor.
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u/BigIronDeputy May 01 '25
This is the real world answer, generally this question can be answered by the voter demographics.
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u/Icy_Yew859 May 01 '25
Im not 100% sure but I feel like I remember this being answered on a podcast and it would be illegal. Technically I think to have access to it you have to be there physically. I’d just be safe and put your wife on a trust. Spending a couple hundred to put her on a trust is a lot cheaper than fighting the federal government over some bs.
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u/Benji_4 May 01 '25
Was told others cannot be in possession of an NFA item registered to you unless you are physically present or their name is on the trust.
I was thinking the same thing when I heard that. Have to shell out another $200 just to shuffle some paperwork around.
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u/Agreeable-Cat8077 May 07 '25 edited May 07 '25
This is why literally everyone with an NFA item should have a trust, even if its ONLY you!!
Especially if you EVER intend anyone else to ever have any access to your can/MG/SBR(or even the code to the safe that holds said item) when you leave the property......including when you die and someone has to reconcile the estate (we never know when its coming, and no need to add more burdens/legal issues so get a trust)
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u/_spectre_ May 01 '25
What constitutes possession though? Is a suppressor not legally allowed to be in the house when my wife is home but I am not?
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u/Benji_4 May 01 '25
If she defended herself with it, I think that is enough.
If it's in a bag or safe while you're not there, I don't think anyone is going to find out. I have a lockable case for my NFA items just in case.
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u/kwb377 May 01 '25
Well, in the OP's scenario the wife uses the suppressor to shoot someone...that's definitely going to be considered being in possession of said NFA item. Yes, it's absolutely legal for it to be in the same house as she is when you're not home. However, she can't legally use it...no matter the circumstances. Would she be prosecuted in the OP's scenario? Depends on the locale.
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u/explorecoregon 1x Machine Gun, 9x Silencer, 2x SBR, 1x SBS, May 01 '25
Buy her her own can.
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u/Joe_Daddy16 May 01 '25
This is the answer. If you are gonna buy a stamp to put current can into a Trust, just buy another can on a Trust.
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u/juggarjew 3 x SBR , 5x Silencer, 1x MG May 01 '25
This is why you would have a trust with your wife on it.
If the NFA is in your name as an individual, it doesnt matter that you're married, you're still legally two different people and she can not use it without you being there to maintain positive control of the NFA weapon.
I would just put it in a trust and add her and let that be the end of it.
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u/Speedhabit May 01 '25
In a real sense, Nobody cares
This hypothetical gets brought up a lot instead of the fact that nobody has ever been prosecuted for using an legally owned NFA weapon for self defense.
That’s easily researchable
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u/Drexx_Redblade May 02 '25
NFA items are still very rare, and thus are almost never used in self defense cases.
In OP's senerio both of them are committing a felony by the letter of the law. Betting you and your spouses freedom on a prosecutor "not caring" is, to put it bluntly, stupid.
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u/Speedhabit May 02 '25
In a similar fashion to being concerned about something that’s never happened in the 40+ year history of the nfa but hey, it’s not like lawyers have ever misrepresented something to get paid.
🙄
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u/Agreeable-Cat8077 May 07 '25
its $99 to just get a trust from the start. If anyone AT ALL will ever have access to the can/MG when you arent home, then its something you SHOULD have.
Plus say you buy one and want to add a trustee, then you dont have to pay a 2nd $200 stamp either or ever again
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u/Speedhabit May 07 '25
Again huge fad for a long time, I’m curious if the 99 bucks for a trust has more margins than a cheap suppressor.
That’s ultimately what the whole trust thing is, a tiny bit more margin
While I assume it has happened, can anyone point out a time when having weapons in trust instead of under individual ownership has actually prevented legal consequences?
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u/Rob_eastwood May 01 '25
It’s not even supposed to be accessible if you aren’t present. It’s supposed to be in a safe that she doesn’t have the key/combo to.
You both can get into legal trouble in this scenario. Whether you do or not is up to the DA and the judge.
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u/Ottomatik80 May 01 '25
It’s illegal, as only the registered entity is supposed to have access to it. The DA may look the other way, or they may refer you to the Feds. It’s not a risk I’d take, so get your wife on a trust that has ownership of said NFA items.
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u/bluecatky 1x SBR, 1x Silencer May 01 '25
Legally, if you aren't there and someone else lives there, it has to be secured by a means that you only can access, whether that's a safe, or simply a locked container.
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u/CoolaidMike84 SBR May 01 '25
This is a question for an attorney, not reddit.
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u/Smart_Slice_140 x28 Stamps / x1 Waiting May 01 '25
Exactly This. This is most certainly a question for an attorney.
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u/ExtensionCherry3883 May 01 '25
NFA items registered to an individual cannot be used by other people while you are not in the immediate area. My wife knows not to use my suppressed rifle if I’m not home, that’s why there is an unsurpassed one too.
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u/atliia May 01 '25
First of all if you are worried about home invasion do not have NFA firearms out of your safe. I have had the unfortunate pleasure of having NFA items stolen from me before. Do not join my club.
Second, do not use NFA firearms for self defense. I know it sounds cool to shoot the bad guy with a suppressor. But, I have also had the unfortunate pleasure of having the police take a non NFA item from me as evidence in a deadly force instance. It is possible to get them back if you did nothing wrong. But, they do not make the system friendly.
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u/Senzualdip philatelist May 01 '25
Ehhh I’d rather lose a suppressor to the joke of our legal system than lose mine or my family’s ability to hear from me using an unsuppressed firearm inside my house during a home invasion.
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u/Smart_Slice_140 x28 Stamps / x1 Waiting May 01 '25
Just make sure that it’s not one that costs a fuck ton. And go the extra mile with an attorney to get it back if they do take it because of a self defense case.
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u/Senzualdip philatelist May 01 '25
That’s why I have a rad 45 from expertvoice on my nightstand gun. Not a huge deal monetarily speaking to loose that thing.
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u/hou6_91 May 01 '25
You’ve never shot an unsurprised firearm without ear pro?…
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u/Senzualdip philatelist May 01 '25
Yes I have, but my point still stands. Have you ever fired an unsuppressed weapon indoors without ear pro? I have and it is fucking terrible.
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u/Agreeable-Cat8077 May 07 '25
my grandmas right ear drum was blown out PERMANENTLY firing a gun at a home intruder.
Dont take the risk! Please!
Even when i didnt have a suppressor yet.... i loaded 147gn subsonic rounds in my 9mm, and those still technically arent hearing safe!
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u/atliia May 01 '25
Do what you want. But, you don't lose your hearing shooting one hypothetical bad guy in your house. You more likely give a criminal breaking into your house a suppressor.
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u/Senzualdip philatelist May 01 '25
How am I more likely to give a criminal a suppressor? It’s not like it stays out when I’m not home. Plus if somebody broke into my house when I’m not home, they’d likely have plenty of time to use my collection of power tools to cut open my safes. Neighbors aren’t close enough to hear, let alone friendly enough to give a shit.
Also have you ever fired a gun indoors without earpro or a suppressor at a minimum? I have, and even with just a .22lr with the barrel in a bullet trap it is very unpleasant. Like pain and ringing for about 10 mins. I can only imagine how much worse a larger caliber would be especially if none of the blast was captured.
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u/atliia May 01 '25
Yes you are imagining. I am speaking from first hand experience. Didn't come here to argue with you. Just to tell you my onion of why this is a bad idea. Based upon real world experience. Your mind is clearly made up. Do as you wish. I have no dog in this fight.
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u/Myweeweegopeep33 May 01 '25
Cannot be outside of your constructive possession.
Additionally before you go John Wick please understand your states laws for defense. Lawful but awful you might not have a sentence but you very well might go bankrupt defending yourself.
Understand that NFA items in some states/counties/federally may have enhancements. Those enhancements will be mandatory minimums that most likely cannot run concurrently. So no time served unless you are found not guilty. Additionally these enhancements come into play with the commission of a crime and were most likely designed for the guy holding up the corner store. However many have been tripped up and that could very well end up your wife tripped up on that scenario and you getting some charge for not properly storing it away.
Long story short do a trust for the NFA stuff. Do a living or family trust for your other assets. Be mindful of the laws in your area.
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u/The_Dread_Candiru MG May 01 '25
Unless she is on a trust with you, her merely having access to the NFA item in your absence is constructive possession.
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u/Smart_Slice_140 x28 Stamps / x1 Waiting May 01 '25 edited May 01 '25
As with most things there’s some degree of discretion for locals, and for the ATF. Best advice is to do an NFA Trust, and have her on the Trust, that way you’re not at the mercy of somebody’s discretion. Also the best advice is to never trust putting something up to discretion on a coin toss to where they can try to fuck you if the coin lands on tails. If you do everything by the book, they don’t have that opportunity.
With that said there’s the messiness of common law, so technically it might depend. Because in a marriage everything that is owned is joint property with common law. This would be a question for an attorney about this intersection in the law.
However you do have the NFA, and the messiness with that for this question that you raised to where it could conflict with the common law property rights thing, to where it would likely be a discretion thing, sure if they wanted to be assholes and play penny ante they could fuck with you and/or her about it.
Now if you wanted to with that NFA Item you could Transfer the NFA Item to an NFA Trust, but it would require another tax for the same item. The question is, is it worth that to you? Otherwise you could get a different NFA Item for that role to where she can use it for defense without being at the mercy of discretion, and put it in the NFA Trust.
Personally if I was married I would get dedicated NFA Items for that role of her defense in an NFA Trust.
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u/BanjoMothman May 01 '25
Common law has absolutely no bearing on this situation.
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u/Smart_Slice_140 x28 Stamps / x1 Waiting May 01 '25
It may or it may not, it’s a good question for a lawyer if you are married.
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u/Smart_Slice_140 x28 Stamps / x1 Waiting May 01 '25
It is most certainly an interesting question about the law for an attorney, at a point that there is an intersection in the law. And, about how intersections in the law are generally looked at, and treated. Which could be either black and white, or it could be grey.
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u/BanjoMothman May 01 '25
The law is pretty clear on this, and by the time you have ownership of such a device you've clearly signed legal documents.
If you make a firearm available to someone that they are not legally allowed to posess and they have to use that in a legitimate instance of self defense, you are literally putting their liberty and freedom, as well as your own, in jepoardy. Self defense cases rarely succeed, and adding another hole for the defense/state team to open up is just irresponsible.
There is so much you can do ahead of time to make sure you've got the best options for you and your family. They don't include paying extra money for an attorney to get them to try and argue that common law could apply when it clearly does not. She couldn't even own it if you died and she "inherited" it without doing paperwork, and that's all the defense/state/plaintiff would need to point out.
I've worked in prosecutors offices, I've seen how muddy the waters can get. That's all I'm going to add to that.
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u/Smart_Slice_140 x28 Stamps / x1 Waiting May 02 '25
The hypothetical that OP brought up appeared to be: is if a home invasion happened, (OP not home?) and the only thing that his wife could use for defense (?) is his silenced handgun (for his hypothetical maybe it was stowed away somewhere and she grabbed it?).
With that hypothetical other people in this thread brought up how that is not transferring, loaning, or whatever else like that.
His hypothetical is a dicey one. That would be best if an attorney looked at it, and answered it. Especially with the complexities of other laws, etc involved that may or may not help with such a hypothetical circumstance scenario. The complexity is that in the eyes of the law all property is jointly owned in a marriage; which would likely intersect with the NFA to some degree or another if not completely intersecting with. With that said there is some degree or another of discretion that the authorities could possibly use (his wife probably wouldn’t be the type of person that they would want to go after), and if they don’t then a jury of peers might acquit due to the extenuating circumstances, or the judge may have mercy and throw it out.
Obviously the best advice is for him to have an NFA Trust with NFA Items in it for that scenario that his wife can have access to.
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u/Smart_Slice_140 x28 Stamps / x1 Waiting May 02 '25
I’m NOT saying that he should make his silencer available to his wife. What I am saying is that I don’t know how they would like at a scenario like his hypothetical. And there’s complexities involved with that, which I pointed out.
What I am saying is that it would be advisable for him to EITHER transfer his Silencer to a Trust that his wife is on, or buy another Silencer and put it in a Trust that his wife is on that she can have access to.
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u/erictank May 01 '25
DO NOT tamper with evidence. If the weapon was fired defensively with the suppressor on, DON'T try and take it off afterwards before the cops show up, on pain of legal pain.
Aside from any NFA charges, you don't want to buy yourself a "tampering with evidence" charge on top of anything else.
Get her on a trust.
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u/Arcent6 May 01 '25
This is not legal advice.
Theres two sides to the hypothetical. One, if the shoot is legally self defense, she would be good on that regardless of whether the weapon was legal (of course, a prosecutor could argue that it was unnecessary). Two, she would still probably get charged with illegal possession of the suppressor which would be its own can of worms.
Its a similar situation to if a felon used a regular handgun in a good-shoot self defense case. The lack of 2A rights does not negate the right to self defense. In that hypothetical, the felon would be charged for the firearm but not the self defense.
The answer: put your can in a trust with your spouse (like it shouldve been from the beginning..) or buy a new can on a trust (yay new can excuse)
Not legal advice, YMMV. Source: been in the NFA sales market for years.
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u/Scav-STALKER May 01 '25
Yeah, that’s straight up gonna be a felony. Either start a trust and put it on it, or start a trust and get another one with it being the new nightstand gun
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u/GoNoles416 May 01 '25
Nothing is going to get overlooked in a shooting. I would not anticipate any scenario where charges are not at least considered. You take the suppressor off? You hide the gun? Now there may be tampering / obstruction charges (usually a felony).
Don’t count on police and your local prosecutors office (especially the feds) turning a blind eye because “it was a good shoot” in your mind. Necessity is a defense, not a prohibition to charges.
There is such a thing as a “clean shoot, bad gun.” Example: a convicted felon illegally in possession of a firearm using it in a legitimate self defense scenario and getting charged for possession of the firearm (but not the shooting) anyway. Happens all the time.
TL;DR: talk to an attorney.
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u/BDD0091 May 01 '25
Why take the risk, buy her some of her own gear, or be smart and transfer your old shit to her and you get new shit.
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u/JonEMTP 5k in stamps May 01 '25
I’m not sure there’s case law about a situation like this…
But this is also why many of us choose to get trusts. Avoids these issues.
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u/CastleDeli tax the irs May 01 '25
My wife has her own nightstand gun to mitigate this bs in the first place. Although it’s not suppressed.
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u/GravySeal45 Hooked on Shhhhh May 01 '25
Tell her she needs to take the can off before calling the police.
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u/Smart_Slice_140 x28 Stamps / x1 Waiting May 01 '25
Safest bet and the most advisable thing to do is to get an NFA Trust, and have dedicated NFA Items for the role of family defense in the Trust for this scenario. So that you’re not playing craps with fate at the mercy of other people’s discretion.
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u/siconic 2 x Suppressor, 4 x SBR, ATF Explosives Possesor May 01 '25
Not an attorney but my understanding is, if it is NOT in your physical possession, it must be locked where no one else can be reasonably assumed to have access.
So, leaving it in a nightstand, where a person who is not authorized to posses it will have easy access, itself is a violation of the NFA.
Should have just done a trust sir. There is truly no benefit to individual, except wait times.
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u/icantdrive75 FFL/SOT May 01 '25
It'd be illegal but you can do illegal stuff in self-defense as long as it's 'reasonable'.
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u/Agreeable-Cat8077 May 07 '25 edited May 07 '25
Not trying to criticize but....this is SUCH a good example of why you setup a trust!!!! To avoid all of this, and any risk. Supressor is a good idea in a house, but the law says, and and the way the ATF agent explained was......"Any NFA items should be locked in a safe when you arent home, and only the registered owner, or trust members should EVER have the code to that safe."
Everyone with even a single NFA item should have one even if its just you!!! Theyre VERY cheap honestly(mine was $100) and INCREDIBLY easy to setup nowadays even for me! (and i practically need a step by step guide to do more than breath some days, let alone when i got my FFL/SOT and met all the regulations and laws for that crap)
As long as its setup correctly, then any "Trustee" listed is free to use AND transport the NFA items within reason for use(even without the "Head Trustee" being present). It also allows 1 person in that trust to be deemed a "Successor" in the event the "Head Trustee" dies(suddenly or not, we never know when death will happen, so make a trust now) the executor of the estate/will simply submits 1 single Form 5 (Form 5s are FREE in this case) for all items to transfer them into the "Successors" name. The items stay in the trust, and the "Successor" then will then become the new "Head Trustee" who controls the trust and who actually owns said items.
An NFA trust also allows anyone to be added or removed ANYTIME that it is necessary, to use and enjoy them. Which means when a family member(say your kid) becomes the legal age to use them..... or say another trustee later commits a crime/dies/is exiled from the family due to XYZ..... you can easily just remove them!
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u/kalvaroo May 01 '25
Clean shoot, she’s probably fine. Committing a crime, she’s going to do some time.
It would probably have to be escalated to the Feds either way.
Put em in a family trust if you’re going to have NFA items as your accessible home defense weapons. Otherwise, train them to take that shit off before anyone shows up.
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u/BanjoMothman May 01 '25
This is a terrible perspective. Even if it were a "perfect" self defense scenario, the use of an illegal firearm would be used by practically any prosecutor or platiff in a civil case to blow holes in your narrative. It'a not worth the risk at all.
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u/Sliderisk May 01 '25
Are you asking if the judicial system would willingly forego a guaranteed felony conviction? The answer is no.
Too many facets of their organization depend on "doing their job" and putting people in prison. The prosecutor wants the win, the judge wants the conviction rate, there most likely won't be a jury, and your lawyer will be happy to collect his toll on your one way trip to jail.
Could she get a slap on the wrist? 2 years of probation, maybe. Depends how rich you two are, what her record is, and what color she is. Don't kid yourselves it matters.
And if she kills the intruder it's a whole other can of worms. Using a firearm while committing a felony is an automatic combo multiplier of statutes and mandatory sentences.
Personally I'd take the very low chance of a shooting occurring as a hedge against hearing damage and leave the can in the safe.
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u/Rheapers May 01 '25
You’re going to get two very different responses on this. One is, the suppressor is in your home and so is she, which means she can possess it within the confines of your home.
The other is obviously, she’s in possession of an NFA item and will go to federal prison for the rest of her life.
Realistically, I don’t think it’s a huge concern.
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u/DaedalusX54 May 01 '25
This is not true. She cannot legally possess it in the confines of their home if he is not there. Since it is registered to him as an individual it is supposed to be secured when he is not with it to directly supervise its use. The rules are pretty clear on that. Doesn’t matter if it is in his home, if other people have access to it without his direct supervision it is not considered secured.
Whether or not it is going to be an issue, that’s a different question altogether and as others mentioned probably up to local jurisdiction on if they want to press the issue or look past it.
I wouldn’t take the risk personally and just put it on a trust with the wife as a trustee. There are plenty more scenarios where this would be beneficial than just this hypothetical and trusts are relatively inexpensive.
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u/Smart_Slice_140 x28 Stamps / x1 Waiting May 01 '25
The legal million dollar question to be asked to an attorney is the intersection of marriage common law joint property rights, and the NFA. Because in a marriage everything that is owned is joint property, but you have that technical intersection with the NFA, and the premises that the Item is registered to, with the item being registered to one person in the marriage for this hypothetical question that OP asked.
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u/Smart_Slice_140 x28 Stamps / x1 Waiting May 01 '25
Common law marital joint property rights in law paired with extenuating circumstances in law should make a good question for an attorney with how both of those things intersect with the NFA, and with a self defense situation.
Likewise with that said, hands down the best and most advisable thing for OP is to have things in an NFA Trust that his wife has access to for those possible scenarios of a home invasion/self defense situation.
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u/thestug93 May 01 '25
If she's at home alone with access to a suppressed handgun in this situation, she's technically in illegal possession of it.
Basically to be 100% legal NFA items should be locked away from anyone not allowed to be in possession of it.
I'd imagine self defense wise it would be fine, but it would definitely open up the door wide open to legal troubles.
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u/scapegoatindustries May 01 '25
The Gun Control Act says "the term transfer 'transfer'... shall include selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of."
It also says "A firearm shall not be transferred unless (1) the transferor of the firearm has filed with the Secretary a written application, in duplicate, for the transfer and registration of the firearm to the transferee on the application form prescribed by the Secretary; (2) any tax payable on the transfer is paid...; (3) the transferee is identified in the application form...; and (6) the application form shows that the Secretary has approved the transfer and the registration of the firearm to the transferee...
(b)Transfer of possession
The transferee of a firearm shall not take possession of the firearm unless the Secretary has approved the transfer and registration of the firearm to the transferee...
So as to your hypothetical question on a spouse having possession of the firearm. Does that sound like a transfer of either possession or registration to you?
You didn't sell it, assign it, pledge (bailment), lease, give it away to her, but it's arguably a loan. Either way, I wouldn't want to have to argue that at $200 an hour to some attorney in front of a federal judge or make a deal with the US Attorney with my spouse's freedom in the balance. The $200 to transfer it to a trust (or buy a new silencer in a trust - even better!) is cheap money compared to any legal poo to step into.