Can a Virginia gun owner put a machine gun in a trust to register it with state police?

Plain-English summary

The Superintendent of the Virginia State Police asked the AG a practical question that had been recurring in firearms registration practice: when a gun trust (commonly used for federal NFA registration of Title II firearms) tries to register a machine gun with Virginia State Police, can the trust be the registrant?

The AG: no. The trust is not a "person" within the meaning of the Uniform Machine Gun Act.

The statutory definition fight. Va. Code § 18.2-295 requires that every machine gun in Virginia be registered with the State Police within 24 hours of acquisition. The registration application must show the model and serial number, the name and address of "the person in possession," and the source and purpose of the acquisition.

Section 18.2-288(3) defines "person" as: "firm, partnership, association or corporation." That is, the statute's expanded definition reaches certain legal entities (firms, partnerships, associations, corporations) plus the obvious case of natural persons. It does not list "trust."

By contrast, Va. Code § 1-230 (the general definitions chapter applicable across the Code unless otherwise specified) defines "person" to include "trust" among the other legal entities listed.

Why this matters: the canon of expressio unius. When the legislature uses a defined term in one statute (omitting trust) and a different definition in a related general statute (including trust), the courts treat the difference as deliberate. Halifax Corp. v. Wachovia Bank (2004) says courts cannot construe a statute to include language the legislature deliberately omitted; doing so would ignore "an unambiguous manifestation of a contrary intention." The expressio unius canon (the inclusion of one thing implies the exclusion of others) reinforces the same conclusion.

So when § 18.2-288 lists firm, partnership, association, and corporation but not trust, the omission is meaningful. A trust is not a "person" for purposes of the Uniform Machine Gun Act.

Why the registration rules also imply this result. The Act's registration procedures contemplate identification of the person physically in possession of the machine gun. Trusts, as abstract legal arrangements, don't possess things; their trustees (acting in fiduciary capacity) do. The statute does not have a mechanism for designating who holds, transfers, or substitutes for the trust's interest. The omission is structural, not just textual.

Why the AG didn't reach the follow-up questions. The Superintendent had asked, if a trust could register, who counted as the "person in possession" for compliance, and what registration actions had to occur when a trustee was substituted. Because the threshold answer was no, the AG didn't reach those.

The practical effect. At the time of this opinion, an individual seeking to lawfully hold a machine gun in Virginia had to register in his own name, not in a trust. The federal ATF Form 4 process (which permitted trust ownership of NFA items including machine guns, with relatively few hoops) couldn't be paralleled at the state level. Virginia registrants had to use individual registration.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Federal regulation of NFA firearms has changed since 2013 (notably ATF Rule 41F in 2016 imposed responsible-person checks on trust-held NFA items). Virginia state firearms law has also been amended. Anyone analyzing the registration of a machine gun in a trust today should check the current text of §§ 18.2-288 and 18.2-295 and consult a Virginia firearms attorney.

Common questions

What is a gun trust?
A revocable or irrevocable trust set up to hold federally regulated NFA firearms (machine guns, short-barreled rifles, suppressors, etc.). The trust structure historically eased federal transfer requirements and allowed multiple authorized users.

Are machine guns legal in Virginia?
With proper federal and state registration, yes, for pre-1986 machine guns (the federal Hughes Amendment closed new civilian registration in 1986). The Uniform Machine Gun Act sets state-level registration requirements layered on top of federal NFA rules.

Why would someone want a trust to register a machine gun?
For federal NFA purposes, trusts historically streamlined the transfer process and allowed multiple "responsible persons" to use the firearm. The trust survives death of the settlor, which avoids triggering a taxable transfer.

If the trust can't register, who can?
A natural person (the individual gun owner), or, per § 18.2-288, a firm, partnership, association, or corporation. The natural person route is the practical one for most owners.

What about other NFA items in Virginia?
The Uniform Machine Gun Act covers machine guns specifically. Other NFA items (suppressors, short-barreled rifles) are governed by other Virginia statutes that may or may not exclude trust ownership. Check current law and consult counsel.

Does this affect federal trust ownership?
No. Federal trust ownership of NFA items (where allowed) remains a federal question. The state opinion only governs state registration.

What is the Uniform Machine Gun Act?
A model state law from the 1930s designed to harmonize state regulation of machine guns. Virginia adopted it as §§ 18.2-288 to 18.2-298. The Act's interpretive provision in § 18.2-297 says it should be construed to make the law of states adopting it uniform.

What is expressio unius est exclusio alterius?
A Latin canon of statutory construction. When a statute lists specific things, omitted things are presumed to be deliberately excluded. It is not absolute; context can rebut it. But the canon was the centerpiece of the AG's reasoning here.

What is a "responsible person" under federal NFA Rule 41F?
Since 2016, federal regulations require trusts and other legal entities applying to acquire NFA items to identify "responsible persons" (trustees, settlors, beneficiaries with authority), each of whom must undergo a background check similar to an individual transferee. This federal change is independent of the state registration question addressed in this opinion.

Background and statutory framework

• Va. Code § 18.2-288: definitions for the Uniform Machine Gun Act, including "person" (firm, partnership, association, corporation; trust not listed).
• Va. Code § 18.2-295: state machine gun registration requirement.
• Va. Code § 18.2-297: interpretive directive (uniformity with other states).
• Va. Code § 1-230: general Code definition of "person" (includes trust).
• Va. Code §§ 64.2-700 to 64.2-808: Virginia Uniform Trust Code.
• Federal NFA: 26 U.S.C. § 5801 et seq. (federal context for machine gun regulation).

The interpretive moves:

• Compare the narrow definition in § 18.2-288 with the broader definition in § 1-230.
• Apply expressio unius and Halifax to treat the omission of "trust" as deliberate.
• Conclude that a trust is not a registrant under the Act.

Citations

• Va. Code § 1-230
• Va. Code § 18.2-288
• Va. Code § 18.2-295
• Va. Code § 18.2-297
• Cuccinelli v. Rector & Visitors of the Univ. of Va., 230 Va. 420, 722 S.E.2d 626 (2012)
• Commonwealth v. Amerson, 281 Va. 414, 706 S.E.2d 877 (2011)
• Appalachian Power Co. v. State Corp. Comm'n, 284 Va. 695, 733 S.E.2d 250 (2012)
• BBF, Inc. v. Alstom Power, Inc., 274 Va. 326, 645 S.E.2d 467 (2007)
• Halifax Corp. v. Wachovia Bank, 268 Va. 641, 604 S.E.2d 403 (2004)
• GEICO v. Hall, 260 Va. 349, 533 S.E.2d 615 (2000)
• Turner v. Wexler, 244 Va. 124, 418 S.E.2d 886 (1992)
• Jones v. Conwell, 227 Va. 176, 314 S.E.2d 61 (1984)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-083_Flaherty.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

November 27, 2013

Colonel W.S. Flaherty
Superintendent
Department of State Police
Post Office Box 7472
Richmond, Virginia 23261-7472

Dear Colonel Flaherty:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505(A) of the Code of Virginia.

Issues Presented

You inquire whether a trust may register a machine gun in Virginia under the Uniform Machine Gun Act (the "Act").[1] Should the answer be in the affirmative, you further inquire who must be in possession of the machine gun to remain in compliance with the Act, and what action must be taken when a trustee of the trust is substituted.

Response

It is my opinion that a trust may not register a machine gun pursuant to the Uniform Machine Gun Act as enacted by the Virginia General Assembly.[2]

Applicable Law and Discussion

The Act requires the registration of every machine gun in the Commonwealth with the Department of State Police, and provides for no exceptions to this requirement.[3] In relevant part, § 18.2-295 provides that

Every machine gun in this Commonwealth shall be registered with the Department of State Police within twenty-four hours after its acquisition or, in the case of semi-automatic weapons which are converted, modified or otherwise altered to become machine guns, within twenty-four hours of the conversion, modification or alteration.... [T]o comply with this section the application as filed shall be notarized and shall show the model and serial number of the gun, the name, address and occupation of the person in possession, and from whom and the purpose for which, the gun was acquired or altered. The Superintendent of State Police shall upon registration required in this section forthwith furnish the registrant with a certificate of registration, which shall be valid as long as the registrant remains the same.

The Act defines a "machine gun" as "any weapon which shoots or is designed to shoot automatically more than one shot, without manual reloading, by a single function of the trigger."[4] In addition, § 18.2-297 provides that "[t]his article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it."

The Act further provides that the term "person" applies to and includes any "firm, partnership, association or corporation."[5] A trust[6] is not listed, and thus, I conclude that the General Assembly did not intend to include a trust among the non-natural person, i.e., "legal," entities that might be considered a "person" for purposes of the Act's regulatory scope.[7][8] Indeed, this omission is particularly noteworthy because the general definition of "person" found in § 1-230 includes "trust" among the other legal entities listed.[9] When the legislature omits language from one statute that it has included in another, courts may not construe the former statute to include that language, as doing so would ignore "an unambiguous manifestation of a contrary intention" of the legislature.[10] The maxim "expressio unius est exclusio alterius" "provides that mention of a specific item in a statute implies that omitted items were not intended to be included within the scope of the statute."[11] Thus, I conclude that by omitting the word "trust" from the definition of "person" in § 18.2-288, the General Assembly intended that a trust may not register a machine gun under the Act.[12]

You additionally ask, in the event a trust may register a machine gun under the Act, who may be its "person in possession" for compliance with the requirements of § 18.2-295, and what registration-related actions must taken upon a substitution of trustee. In light of the above-noted conclusion, it is not necessary to address these matters.

Conclusion

Accordingly, it is my opinion that a trust may not register a machine gun pursuant to the Uniform Machine Gun Act as enacted by the Virginia General Assembly.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

[1] Va. Code Ann. §§ 18.2-288 through 18.2-298 (2009).

[2] Based upon the conclusion reached herein that a trust may not register a machine gun under the Act, it is not necessary to address your additional inquiries.

[3] See § 18.2-295.

[4] Section 18.2-288(1).

[5] Section 18.2-288(3).

[6] A "trust" is defined generally as "The right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title; a property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary)." Black's Law Dictionary 1513 (7th ed. 1999). For the purposes of your inquiry, I conclude that you intend to use the term "trust" in accordance with this general definition. In Virginia, most forms of trusts are governed by the terms of the Uniform Trust Code. See Va. Code Ann. §§ 64.2-700 through 64.2-808 (2012 & Supp. 2013). See especially § 64.2-704 (2012) (providing that "The common law of trusts and principles of equity supplement this chapter, except to the extent modified by this chapter or another statute of the Commonwealth.").

[7] "When construing a statute, our primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute." Cuccinelli v. Rector & Visitors of the Univ. of Va., 230 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 877, 882 (2011)) (further citation and internal quotation marks omitted). In addition, "[r]ules of statutory construction prohibit adding language to or deleting language from a statute." Appalachian Power Co. v. State Corp. Comm'n, 284 Va. 695, 706, 733 S.E.2d 250, 256 (2012) (citing BBF, Inc. v. Alstom Power, Inc., 274 Va. 326, 331, 645 S.E.2d 467, 469 (2007)).

[8] Va. Code Ann. § 1-230 (2011) provides that, "[w]henever the term 'person' is defined to include both 'corporation' and 'partnership,' such term shall also include 'business trust and limited liability company.'" As noted above, this Opinion interprets the term "trust" in its broader, more general usage.

[9] Section 1-230.

[10] Halifax Corp. v. Wachovia Bank, 268 Va. 641, 654, 604 S.E.2d 403, 408 (2004).

[11] GEICO v. Hall, 260 Va. 349, 355, 533 S.E.2d 615, 617 (2000) (quoting Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992)).

[12] The Act does not specifically define the term "registrant." Nevertheless, based upon the public safety-related, regulatory purposes of the Act, it cannot reasonably be defined more broadly than the term "person." "[I]t is well established that every act of the legislature should be read so as to give reasonable effect to every word and to promote the ability of the enactment to remedy the mischief at which it is directed." Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984).