June 2008 Archives: NFA Gun Trust Lawyer Blog  

June 2008 Archives

June 30, 2008

Pennsylvania's UFA: Evidence of Intent

18 PA.C.S. § 6104 deals with what constitutes intent in relation to 18 PA.C.S. 6105, prohibited  persons. "In the trial of a person for committing or attempting to commit a crime enumerated in section 6105 (relating to persons not to possess, use, manufacture, control, sell or transfer firearms), the fact that that person was armed with a firearm, used or attempted to be used, and had no license to carry the same, shall be evidence of that person's intention to commit the offense." (18 PA.C.S. § 6104).
June 30, 2008

Pennsylvania's UFA: Persons not to Possess, Use, Manufacture, Control, Sell, or Transfer Firearms

Pennsylvania's UFA: Persons not to Possess, Use, Manufacture, Control, Sell, or Transfer Firearms

    18 PA.C.S. § 6105 deals with persons who cannot possess, use, manufacture, control, sell, or transfer firearms. It must be noted that this section applies to convictions that were both committed within and outside of the Commonwealth of Pennsylvania. (18 PA.C.S. § 6105). These prohibitions are broken down into two categories: 1. those persons who violate one of the enumerated offenses; and 2. those persons who fall into nine subcategories of non-enumerated offenses. There is also an exemption  clause which allows one who has been convicted of one of the enumerated offenses or certain non-enumerated offenses to petition the court of common pleas for relief. Moreover, any person who becomes a prohibited person has "a reasonable period of time, not to exceed 60 days from the date" of conviction. (18 PA.C.S. § 6105).
 

Continue reading "Pennsylvania's UFA: Persons not to Possess, Use, Manufacture, Control, Sell, or Transfer Firearms" »

June 26, 2008

Obama, Reacts to Heller Decision - Less than enthusiastic support

Here is Obama's Statement:

"I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures. The Supreme Court has now endorsed that view, and while it ruled that the D.C. gun ban went too far, Justice Scalia himself acknowledged that this right is not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe. Today's ruling, the first clear statement on this issue in 127 years, will provide much-needed guidance to local jurisdictions across the country.

As President, I will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen. I know that what works in Chicago may not work in Cheyenne. We can work together to enact common-sense laws, like closing the gun show loophole and improving our background check system, so that guns do not fall into the hands of terrorists or criminals. Today's decision reinforces that if we act responsibly, we can both protect the constitutional right to bear arms and keep our communities and our children safe."

June 26, 2008

McCain, Reacts to Heller Decision

Today the Supreme Court Ruled on the Second Amendment Right to Bear and Keep arms.  John McCain issued the following statement:

"Today's decision is a landmark victory for Second Amendment freedom in the United States. For this first time in the history of our Republic, the U.S. Supreme Court affirmed that the Second Amendment right to keep and bear arms was and is an individual right as intended by our Founding Fathers. I applaud this decision as well as the overturning of the District of Columbia's ban on handguns and limitations on the ability to use firearms for self-defense.

Unlike Senator Obama, who refused to join me in signing a bipartisan amicus brief, I was pleased to express my support and call for the ruling issued today. Today's ruling in District of Columbia v. Heller makes clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans. Unlike the elitist view that believes Americans cling to guns out of bitterness, today's ruling recognizes that gun ownership is a fundamental right -- sacred, just as the right to free speech and assembly.

This ruling does not mark the end of our struggle against those who seek to limit the rights of law-abiding citizens. We must always remain vigilant in defense of our freedoms. But today, the Supreme Court ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms."


June 26, 2008

More thoughts on Heller Decision

Dave Markowitz has posted Thoughts on the Heller Decision on his Blog O'Stuff, a Blog about Computing, Shooting, RKBA, and whatever else he feels like ranting about.

He states that the court held that the Second Amendment protects an individual right for lawful purposes including self defense.

2) Some restrictions of the RKBA are ok, licensing is not forbidden, but it must not be arbitrary or capricious

3) Outright bans of arms in common use are forbidden. Handguns are in common use, but machine guns could possible be banned. Perhaps the reason machine guns are not in common use is because of their heavy regulation for the last 70 years.

4) The Supreme Court declined to specify a standard for review of a Second Amendment base challenge to gun laws.


June 26, 2008

Supreme Court: 2nd Amendment - Right of Individual to Keep and Bear Arms

Today the Supreme Court issued a historic ruling overturning Washington, D.C.'s ban on handguns and on self-defense in the home, in the case of District of Columbia v. Heller.

It vindicates individual Americans all over this country who have always known that this is their freedom worth protecting," declared NRA Executive Vice President Wayne LaPierre. "Our founding fathers wrote and intended the Second Amendment to be an individual right. The Supreme Court has now acknowledged it. The Second Amendment as an individual right now becomes a real permanent part of American Constitutional law."

More commentary to come but for now you can download and read the case
Supreme-Court-2nd-amendment.pdf
June 23, 2008

Washington (WA) What NFA Firearms can I own? Updated

Washington NFA Class 3 firearms
There are several type of Class 3 items that are restricted by the National Firearms Act.

Each state can impose additional restrictions on the sale, purchase, and transfer of class 3 firearms in addition to the compliance that is required with the national Firearms Act.

In Washington you can own the following items that are regulated the the National Firearms Act

Silencers
Any Other Weapon (AOW)
Destructive Devices (DD)
In Washington you cannot own the following NFA restricted items.

Machine Guns*
Short Barreled Shotguns (SBS)*
Short Barreled Rifles (SBR)*

NOTE:* Not legal to own or possess parts that can make these firearms unless these items were legally acquired prior to July 1, 1994 and be in compliance with federal law or machine Gun, Short Barreled Shotgun, or Short Barreled Rifle but be possessed by by peace officer for official duty, armed forces, or person in compliance with NFA who has undergone Fingerprint and background check who in engaged in the production , manufacture, repair, or testing of Machine guns, SBR, or SBS

Follow this link to find out more about Washington and NFA restrictions on Class 3 Firearms

Note: Although you can own a silencer, it may not be used on a gun. Also for other class 3 items a state license is required in addition to the requirements under the NFA

June 9, 2008

How to set up a revocable living trust to purchase National Firearms Act (NFA) or Class 3 weapons

Do you want to purchase a Class 3 item?  These include Silencers, Sort barreled rifles, and Machine Guns.  You need to check and see if you are allowed to own the weapon you desire.

1) Check your state to see if that weapon is permitted.
2) Check to see if your local CLEO (Chief Law Enforcement Officer) will sign a Form 4.
3) Determine who needs to be able to have the items in their possession.
4) Are you married?  If so does you spouse or anyone else know the combination to your gun safe?
4) Determine who is a backup person in case the people in (3 & 4) are not able to be in possession, choose not to be in possession, or die.
5) Determine who you want to have the items once you die.
6) Are these people under 18?  At what age do you want them to be able to use or take possession of the firearms?  Does the person in (5) have the ability to determine if it would be a good idea for your beneficiaries to take possession?  (both from a legal, maturity, and responsibility perspective)

Have this information as well as the addresses, counties, age (if under 21) and relationship when you contact a lawyer.  If you need help finding a lawyer familiar with Gun Trusts in your state, you can Contact us and we will put you in touch with someone licensed in your state.

General information on what items can be purchased in your state can be found under your state's link on this website or from a local gun dealer who sells the items.

Continue reading "How to set up a revocable living trust to purchase National Firearms Act (NFA) or Class 3 weapons" »

June 9, 2008

Constructive Possession of Class 3 Firearms

Constructive possession is a legal fiction to describe a situation where an individual has actual control over property without actually having physical control of the same assets. At law, a person with constructive possession stands in the same legal position as a person with actual possession.

When an individual purchases a class 3 firearm, they are the only one who is able to be in possession of the item. They have a duty to safeguard the use and possession of the restricted firearm from all others.

This includes their friends, spouse, children, or anyone else.  Generally the individual accomplishes this by placing the restricted class 3 firearms in a gun safe.

What happens if their spouse or someone else knows the combination to the gun safe?  That person is in Constructive possession of the item.  In addition, the rightful owner, is in violation of improperly transferring the item to the other.  Both people can face criminal penalties which include jail time, monetary fines, and confiscation and destruction of the items.

How Do I Protect Myself From Constructive Possession?  One way is to make sure that no one ever has the combination to your gun safe, or has access to the items.  You should not let other people use, handle, or have the ability to be in possession of the items.

Another way is to provide the ability for others to be in constructive possession. This can be done using a business entity such as a corporation, LLC, or NFA Gun Trust.  The trust can be written in such a way as to allow another or several individuals to be in possession of the items.

This may sound simple, and generally it is, but there are many things that need to be discussed prior to including someone as a co-trustee on a Gun trust.  A few of the issues include:

1) do well do you trust that person?;
2) where do they live and how will the laws of their state effect your ability to purchase the weapons?;
3) are they eligible to own or possess these items?;
4) what happens if one of those issues changes in the future?;
5) is that person between the age of 18 and 21?; and
6) what will you do if one of you moves to state the item you own is not legal?

You should Contact  and discuss the concept of Constructive possession with a Gun Trust Lawyer® before creating or modifying NFA Gun Trust.

June 8, 2008

States Without Constitutional Rights to Bear Arms

STATES WITHOUT CONSTITUTIONAL PROVISIONS:

Only a few states do not have a constitutional provision dealing withe the right to bear arms: California, Iowa, Maryland, Minnesota, New Jersey, and New York.


Updated  10/14/11

June 8, 2008

40 States have Constitutional Right to Bear Arms

Alabama: "That every citizen has a right to bear arms in defense of himself and the state." Ala. Const. art. I, § 26.

Alaska: "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Alaska Const. art. I, § 19.

Arizona: "The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men." Ariz. Const. art. II, § 26.

Arkansas: "The citizens of this State shall have the right to keep and bear arms for their common defense." Ark. Const. art. II, § 5.

Colorado: "The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons." Colo. Const. art. II, § 13.

Connecticut: "Every citizen has a right to bear arms in defense of himself and the state." Conn. Const. art. I, § 15.

Deleware: Article One, Section 20 of the Delaware Constitution: "Section 20. A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use."

Florida: "The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law." Fla. Const. art. I, § 8.

Georgia: "The right of the people to keep and bear arms, shall not be infringed, but the General Assembly shall have the power to prescribe the manner in which arms may be borne." Ga. Const. art. I, § 1, para. 5.

Hawaii: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Hawaii Const. art. I, § 15.

Idaho: "The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony." Idaho Const. art. I, § 11.

Illinois: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." Ill. Const. art. I, § 22.

Indiana: "The people shall have a right to bear arms, for the defense of themselves and the State." Ind. Const. art. I, § 32.

Kansas: "The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power." Kan. Const., Bill of Rights, § 4.

Kentucky: "All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: ... Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." Ky. Const. § I, para. 7.

Louisiana: "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person." La. Const. art. I, § 11.

Maine: "Every citizen has a right to keep and bear arms for the common defense; and this right shall never be questioned." Me. Const. art. I, § 16.

Massachusetts: "The people have a right to keep and bear arms for the common defense. And as, in times of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it." Mass. Const. pt. I, art. XVII.

Michigan: "Every person has a right to keep or bear arms for the defense of himself and the State." Mich. Const. art. I, § 6.

Mississippi: "The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power where thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons." Miss. Const. art. III, § 12.

Missouri: "That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons." Mo. Const. art. I, § 23.

Montana: "The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons." Mont. Const. art. II, § 12.

Nebraska: "... and the right to keep and bear arms for security or defense of self, family, home and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof.." N.E. Article 1 (Bill of Rights) Sec 1

Nevada: "Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes." Nev. Const. art. I, § 11(1).

New Hampshire: "All persons have the right to keep and bear arms in defense of themselves, their families, their property, and the State." N.H. Const. pt. I, art. 2a.

New Mexico: "No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons." N.M. Const. art. II, § 6.

North Carolina: "A well regulated militia being necessary to be the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice." N.C. Const. art. I, § 30.

Ohio: "The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power." Ohio Const. art. I, § 4.

Oklahoma: "The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons." Okla. Const. art. II, § 26.

Oregon: "The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power." Or. Const. art. I, § 27.

Pennsylvania: "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned." Pa. Const. art. I, § 21.

Rhode Island: "The right of the people to keep and bear arms shall not be infringed." R.I. Const. art. I, § 22.

South Carolina: "A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. As, in times of peace, armies are dangerous to liberty, they shall not be maintained without the consent of the General Assembly. The military power of the State shall always be held in subordination to the civil authority and be governed by it. No soldier shall in time of peace be quartered in any house without the consent of the owner nor in time of war but in the manner prescribed by law." S.C. Const. art. I, § 20.

South Dakota: "The right of the citizens to bear arms in defense of themselves and the state shall not be denied." S.D. Const. art. VI, § 24.

Tennessee: "That the citizens of this State have a right to keep and bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime." Tenn. Const. art. I, § 26.

Texas: "Every citizen shall have the right to keep and bear arms in the lawful defence of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime." Tex. Const. art. I, § 23.

Utah: "The people have the right to bear arms for their security and defense, but the Legislature may regulate the exercise of this right by law." Utah Const. art. I, § 6.

Vermont: "That the people have a right to bear arms for the defence of themselves and the State--and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power." Vt. Const. Ch. I, art. 16.

Virginia: "That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power." Va. Const. art. I, § 13.

Washington: "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men." Wash. Const. art. I, § 24.

Wisconsin "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

Wyoming: "The right of citizens to bear arms in defense of themselves and of the state shall not be denied." Wyo. Const. art. I, § 24
June 8, 2008

Pennsylvania: Right to Bear Arms

Pennsylvania: Right to Bear Arms
The citizens of Pennsylvania have a constitutional right to bear arms.  It is found in Article I; Section 21: Right to Bear Arms and states:

"The Right of the citizens to bear arms in defense of themselves and the State shall not be questioned"


June 5, 2008

Florida Concealed Weapons Permit Reciprocity - Updated

Florida is one of the many states that offers reciprocity for people with Concealed Weapons Permits (CWP) from other states.

Florida does require that for w concealed carry permit to be valid in Florida it must have been issued to a resident of the state where it was issued.  There only a few states that have this requirement.  They are Colorado, Kansas, South Carolina, Michigan, West Virgina, and New Hampshire.  Notably all of those states except South Carolina honer a Florida Concealed Weapons Permit.

A Florida Concealed weapons permit is valid in the following states:
Alabama, Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico,  North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah,  Vermont, Virginia, West Virginia, Wyoming

A Florida Concealed weapons permit is NOT valid in the following states:
California, Connecticut, District of Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Maryland, Minnesota, Nebraska, New York, New Jersey, Oregon, Rhode Island, Washington,American Samoa, Guam, N. Mariana Islands, Puerto Rico, Virgin Islands

For the most up to date information, an individual should check the Attorney General's website. Follow the following links for a map of US reciprocity agreements, a Map of Florida Reciprocity agreements.

June 5, 2008

Arkansas (AR) What NFA Firearms can I own?

Oregon NFA Class 3 firearms

There are several type of Class 3 items that are restricted by the National Firearms Act.

Each state can impose additional restrictions on the sale, purchase, and transfer of class 3 firearms in addition to the compliance that is required with the national Firearms Act.

In Arkansas you can own the following items that are regulated the the National Firearms Act

Machine Guns
Silencers
Any Other Weapon (AOW)
Destructive Devices (DD)
Short Barreled Shotguns (SBS)
Short Barreled Rifles (SBR)
In Arkansas you cannot own the following NFA restricted items.
None

Follow this link to find out more about Arkansas and NFA restrictions on Class 3 Firearms

June 4, 2008

Open Carry in Pennsylvania

Open Carry refers to whether an individual is permitted to carry a handgun that is visible.  Some states permit open carry and others do not.  In contrast, many states offer concealed weapons permits.  These allow individuals to have a handgun that is not open and visible.  It is important to understand what your states laws are and how and where you are permitted to have weapons in or near your possession.

Joshua Prince, a 3L law student has complied this information on Open Carry in Pennsylvania. This information was modified by comments received by a retired deputy sheriff who noted that Pittsburgh is a second of the second class and not of the first like Philadelphia is.

To the surprise of many residents, as well as law enforcement officers, individuals who are not prohibited from owning firearms may openly carry a handgun on or about his/her person without a license (18 PA.C.S. § 6106). This has been upheld by the PA Supreme Court in Commonwealth v. Ortiz and Commonwealth v. Hawkins. However, there are some limitations on open carry. Specifically:

1. the handgun must be in plain sight;
2. the individual cannot open carry in a vehicle (18 PA.C.S. § 6106);
3. in cities of the first class (Philadelphia) and Pittsburgh a city of the second class; and
4. where prohibited by statute.

Currently Pennsylvania statute § 6107 prohibits open carry during a state emergency and in the city of Philadelphia without a License to Carry Firearms (LTCF) otherwise known as  a concealed carry permit (18 PA.C.S. § 6108).  

There are some places which are off-limits in Pennsylvania, whether you are open or concealed carrying.  These include:

1. All Federal Facilities (Unless Authorized);
2. All Court Facilities;
3. State Parks (except while in a vehicle);
4. Adult and Juvenile Detention Facilities; and
5. Airport Terminals (secure areas only).

The issue of both open and concealed carry on school property has not been fully determined but it appears that it would not be allowed under Pennsylvania statute 912 where it states that possession of "a weapon in the buildings of, on the grounds of, or in any conveyance providing transportation to or from any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school" is a misdemeanor of the first degree.

However, the statute does allow "a defense that the weapon is possessed and used in conjunction with a lawful supervised school activity or course or is possessed for other lawful purpose." 

It should be noted that Pennsylvania allows the concealed (with a LTCF) or open carry of a firearm in an establishment that sells or serves alcohol.

Anyone considering open or concealed carry should check out the PAOpenCarry.org website and download the Open Carry brochure.

June 2, 2008

Minnesota (MN) What NFA Class 3 Firearms can I own?

NFA Class 3 firearms There are several type of Title II firearms that require a Class 3 license to be transferred or manufactured under the the National Firearms Act.

Each state can impose additional restrictions on the sale, purchase, and transfer of class 3 firearms in addition to the compliance that is required with the national Firearms Act.

In Minnesota you can own the following items that are regulated the the National Firearms Act

Machine Guns **   (C&R only)
Short Barreled Shotguns (SBS) **  (C&R only)
Short Barreled Rifles (SBR)
Any Other Weapon (AOW)
Some Destructive Devices (DD)
In Minnesota you cannot own the following NFA restricted items.
Silencers
Some Destructive Devices (DD)


Note: In Minnesota you can only purchase Machine Guns or Short Barreled Shotgun that are Curios and Relics (See:  Minnesota Statutes 609.67 MACHINE GUNS AND
SHORT-BARRELED SHOTGUNS)


Follow this link to find out more about Minnesota and NFA restrictions on Class 3 Firearms