I got into gun law entirely by accident. One October afternoon in 2009 I happened to be in a gun shop and heard another customer say “blah, blah, blah, GUN TRUST.” I write trusts every day for law firm clients, but I’m also an author of trust drafting software distributed to attorneys nationally so this caught my attention!
“What’s a gun trust?” I asked. The customer said “It’s just a normal living trust I’m using to purchase a silencer. With a trust you don’t have to get the Sheriff to sign off on the purchase.”
I’ve practiced estate-planning law since 1988. Iserved as an Army officer (Infantry, Airborne Ranger), am a 2nd Amendment supporter and a target shooter, so I thought I was fairly knowledgeable about gun subjects. Even with this background I had never heard of gun trusts, and, surprisingly, I never really thought about the transfer of guns as being something noteworthy at all. I didn’t know that what I considered innocent transfers of firearms could actually be “accidental” felonies. Guns, to me, were similar to coin collections, tools or other items of tangible personal property people tend to acquire over time. It was all just “stuff.”
Well, now I know that the transfer of any firearm can be a crime … depending on how it’s done, where it’s done, who the parties are and what the category or type of firearm is under state or federal law or both. Worse, the word “transfer” has inexact meaning depending on the law that controls.
I began researching the laws surrounding gun ownership and realized just how wonky and confusing they are. Federal firearms law has evolved over the last several decades. Today’s two primary statutory constructs were enacted in different era, but are now entwined in “the Gun Control Act”. The “Gun Control Act of 1968” (“GCA”) and the “National Firearms Act of 1934” (“NFA”) are now Titles I and II of the new and improved (current) “Gun Control Act of 1968” respectively.
The original “Gun Control Act” is now retitled as “State Firearms Control Assistance” and is Title I of the current Gun Control Act. It generally regulates firearms in interstate commerce and establishes a regime for licensing dealers, manufacturers etc. The original National Firearms Act of 1934 was added to the current Gun Control Act of 1968 and is Title II, retaining “National Firearms Act of 1934 as its title. Title II regulates six categories of firearms under the National Firearms Act (NFA), passed in 1934. These six categories are: machine guns, short-barreled rifles, short-barreled shotguns, silencers (suppressors), destructive devices and “any other weapons” or AOWs. NFA firearms must be registered in the federal system with a tax stamp issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) prior to a purchaser taking possession.
The Gun Control Act and its two titles interacts with state law. For example, under the GCA each State may regulated licensing of firearms and firearms dealers. Under the NFA, each State can restrict which of the six NFA firearms can be possessed within its borders. A person might own something in one state and be unable to relocate it to a new state following a move.
NFA firearms are the ones that have created so much demand for gun trusts or other entities, like corporations or LLCs to acquire them. Simply put, using an entity makes it easier to transfer NFA firearms.
To purchase an NFA firearm permitted within the state, a tax stamp issued by BATFE is required. An individual must first submit an application through the local Chief Law Enforcement Officer (CLEO) - usually the Sheriff, before sending it to the BATFE. Most gun owners elect to avoid the “CLEO sign-off” by purchasing NFA Firearms through a legal entity, such as a corporation, LLC or trust.
While this all seems pretty straightforward, there are hidden dangers, as most gun owners don’t know what’s at stake should this be done incorrectly. It’s made far worse by the ease of creating forms online for free or with a generic document having no awareness of these potential disasters than can occur. The choice of entity is a critical decision and one that many gun owners make without clearly understanding how each works. Setting up an entity doesn’t mean that it is operated in a compliant fashion.
My initial encounter with the concept of a “gun trust” also led me to examine the legal issues surrounding the inheritance of firearms. I looked at ways to own federally regulated firearms during life and how to “share” them without committing an unlawful transfer. After a little more digging, I came across two or three articles written about the transfer of guns in estates and how this act of love can turn into a nightmare. You see, some people can’t own any gun under state or federal law or both, some guns can’t be owned by anyone at all and some guns can be owned in one place, but not another. A person administering the estate, conducting the transfer or even innocently sharing at a range can all accidentally commit a felony by doing so! Unfortunately, accidental or not, in some cases, the price is the same as if the person broke the law on purpose.
This motivated me as a gun owner and as a planning attorney to take action. I focused on my belief that every armed citizen should own the right gear and train with it to be competent, but that each of us must also understand the laws of possession and transfer as well.
The first two of these are taken care of by careful selection of products and trainers, albeit that employing guns within the law can be really tricky. Beyond the “shoot/don’t shoot conundrum that self-defense oriented gun owners face, there is even more risk, largely hidden. It dawned on me that if all the aspects of possessing firearms and transferring them is a confusing issue for me, a veteran and seasoned attorney, then these issues must be important to every gun owner.
The mere fact of owning a gun is not the real issue. Understanding the nuances of possession and transfer laws which are broad concepts in gun law are. Possession can be actual (in my pocket or hand) or constructive (I have access) and these concepts are critical. Sharing is a transfer… access may be a transfer… not just the common examples such as selling a gun or leaving one to someone in a Will. . Most gun owners and attorneys seem largely unaware of these issues, how they create danger or what to do about them. A gun shop owner actually tried to “school” me, saying that a simple corporation, LLC or any old living trust would do the trick. Well, knowing what I know about these types of entities and how they work, this is just not right and is not the whole story. It’s not just form… to be protected there must be substance.
It’s true that any valid state law trust could function so as to own one or more guns. Unfortunately, most trusts I review intended to own guns, often provided by gun shops or downloaded from the Internet, are not valid under state law. Even if they are, the word “gun” or any mention of gun laws is conspicuously absent which certainly creates risk for the unwary
Generically, a revocable living trust is a written agreement that you write, you administer and that you can change when you want. But, what would make this kind of trust into a gun trust? Well, since firearms are not like stock certificates or land, the trust should contain purpose-built language. Possessing or transferring a gun illegally makes that gun dangerous without even being fired! Anybody can safely possess or transfer a stock certificate, even a minor, but this may not be true or may not be the wise thing to do when a gun is involved.
Most of us want a gun trust just to more easily acquire an NFA item. But, every trust is an estate planning document. Upon death or incapacity, friends, family and even the Court will look to the provisions in the trust document in order to transfer firearms. Shouldn’t it work correctly?
Remember – the main legal issue gun owners have to be concerned about here involves one word … “transfer.” The word “transfer” may mean different things at different times and under different state or federal laws. Essentially, “transfer” means to sell, gift, bequeath, lease, loan, share or even allow access to a firearm, depending on the context and law involved. The vagueness of this word has the potential to cause complicated legal problems.
To begin with, possession of a firearm by a “prohibited person,” as defined under local, state or federal law may be a problem, but to possess a thing it has to come into someone’s hands first. This is why the transfer itself is the sticking point that can lead to an “accidental” felony. Some transfer crimes have little to do with guilty intent. For example, possessing an illegal firearm without knowing it is illegal may be enough… and certainly is the minute you learn it is illegal. At that moment all the elements of criminal possession are met… Catch 22!
Any “conventional” living trust, i.e. of the type commonly drafted and usually prepared by an experienced estate-planning attorney, almost universally fails to even have the word “firearm” or “gun” in it. A conventional trust is extremely unlikely to address the peculiarities of state or federal firearms law, especially the National Firearms Act of 1934 and/or the Gun Control Act of 1968 that regulate firearms ownership and transfer.
The best and safest “gun trusts” are limited in scope. They’re purpose-built living trusts drafted with the intent to help gun owners possess, share and gift their gun collection, big or small, with clear guidance about avoiding the commission of a felony by the gun owner or anybody else involved in the enjoyment of trust property.
When in the market for a gun trust, gun owners should be looking for one that is gun-centric, and purpose-built to acquire, possess, and transfer guns and related accessories. A real gun trust is a document that serves equally as an estate plan and as a guidebook to owning and possessing firearms safely. If healthy, the gun owner creates and runs the trust. He or she controls who gets to use trust property, i.e. the firearms it owns. But, upon becoming legally incapacitated or upon death, the gun trust provides written instructions about dealing with trust firearms in such a way that an illegal transfer will not occur.
Gun owners really need to ask – who takes charge of my gun collection if I am out of the picture? Does a spouse, friend, sibling or parent know anything about gun transfers, the value of the collection (potentially significant), or that the little cylinder in the gun safe (silencer) is federally regulated and requires permission from ATF to transfer before anybody else takes possession?
It’s smart to take some time and do it right. The consequences of failure are just too severe. Avoiding the chance of becoming an “accidental” felon seems like a great idea and part and parcel of protecting one’s freedom, safety, security and peace of mind.