February 2009 Archives: NFA Gun Trust Lawyer Blog  

February 2009 Archives

February 24, 2009

Florida Can't Keep Up With Concealed-Carry Requests

Florida is buried under a backlog of 95,000 applications for concealed-carry permits, and it needs to hire a lot more people to handle the paperwork, reports the Miami Herald. Floridians in record numbers want to carry concealed firearms, a trend linked to a surge in crime, economic anxiety and fears of stricter gun laws, says the paper, and a legislative panel has given the state's agricultural commissioner permission to spend $3.9 million more to hire 61 temporary workers.
February 18, 2009

Wyoming changes who's concealed firearms permits they will honor

The Wyoming Attorney General's Office recently completed examination of the other 49 states statutes for the purpose of honoring concealed firearms permits issued by another state, or reciprocity. Pursuant to Wyo. Stat. Ann. § 6-8-401(a)(iii), Wyoming will recognize a permit from another state that "has laws similar to the provisions of this section, as determined by the attorney general . . .."

The Wyoming Attorney General has determined that with the exception of 8 states, presently all the others concealed firearm permit statutes are not sufficiently similar to Wyoming's. Specifically, Wyo. Stat. Ann. § 6-8-104(b)(v) prohibits issuance of a permit to any person who has been convicted of a controlled substance violation, felony or misdemeanor in any jurisdiction. Most other states' analogous statutes do not.

The Wyoming Attorney General holds that if a misdemeanor drug conviction disqualifies a Wyoming resident, is also needs to disqualify an out-of-state permit holder. Due to the difference in how each state handles controlled substance convictions, Wyoming is also limited in our ability to maintain reciprocity with states we may have previously.

Accordingly, as of March 1, 2009, Wyoming can only honor concealed firearm permits issued by the following states: Connecticut, Ohio, Georgia, Oklahoma, Maryland, Oregon, Massachusetts and Utah.

Update May 2010
Permit Honored:
Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Wyoming

Permit Not Honored:
California, Connecticut, Delaware, Hawaii, Iowa, Kansas, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Washington, West Virginia, Guam, Puerto Rico, Virgin Islands, District of Columbia

Note Colorado, Florida, Michigan, New Hampshire & South Carolina require that your Wyoming permit be issued to a resident or they will not honor it.
February 13, 2009

Zero Tolerance, Zero Common Sense

zerotolerance.jpgHere we go again. In yet another case of over reactive, one-size-fits-all, "zero-tolerance," zero-common sense enforcement, Marie Morrow, an honors student and drill‑team commander in the Young Marines, was recently expelled from school.  Her crime?  She left three rifle shaped drill team props in the back of her car at Cherokee Trail High School in Aurora, Colo.  Colorado law mandates expulsion for any student found with a "dangerous weapon" on school grounds, which includes "a firearm facsimile that could reasonably be mistaken for an actual firearm."

The non-operative rifle props are used during drill routines, where the facsimiles are spun and tossed.  The props are made of wood and plastic, are heavily duct‑taped and, of course, cannot function and were never intended to.  Morrow had brought them to school because she was preparing for a competition at the Air Force Academy in April and planned to attend a practice right after school. 

According to an article in today's Washington Times, Morrow hadn't told anyone about the props, but apparently some students on their way to a smoking spot next to the parking lot spotted them in the back of Morrow's vehicle and contacted school authorities.

Callers to Denver morning talk show "The Peter Boyles Show," said the students who turned Morrow in received as a reward for their actions, coupons to fast-food restaurant Chik-Fil-A. 

"That's the insanity of this--she's a student leader, a smart kid ... then they give the snitches Chik-Fil-A," Mr. Boyles said. 

In response to the situation, state Senator Kevin Lundberg (R-15) said he plans to introduce legislation that would provide an exception to the law for prop weapons used by military-sponsored youth groups. 

"There should be exemptions to this hard-and-fast rule so this type of thing doesn't happen again," Mr. Lundberg said.  "I am outraged that a student faces expulsion for participating in a drill team." 

And it's ironic to note that this is presumably a school-sponsored and school-endorsed drill team. 

Even a spokesman for one of the country's most anti-gun groups agreed that the punishment didn't fit the crime.  "We're not concerned about non-operative rifles, and the facts in this case cry out for someone to exercise common sense," said Peter Hamm, a spokesman for the vehemently anti-gun Brady Campaign.  You know things are bad when even the Brady Campaign refuses to pile on.
February 12, 2009

New Hampshire's Proposed Stand your Ground Bill has Problems

Our New Hampshire NFA Gun Trust Attorney has send in some information on HB 160 and some potential problems.

1) The language
(a) Retreat from the encounter, except that he or she is not required to retreat if he or she is within his or her dwelling,  its curtilage, or in any place where he or she has a right to be, and was not the initial aggressor; or  
could defeat the purpose of the intended modification.  In order to avoid the risk, the "swelling" and "curtilage" language should be removed from the law.
2) Retreat is still required if one is in a place where one does not have "a right to be."  This is understandable as to stopping wrongdoers from availing themselves of this defense. However, what if one is inadvertently in a place where the person does not have "a right to be" and defends ones self with deadly force, that person still must retreat from violent criminal attack. (For example, inadvertently standing outside of a crosswalk, or in an illegally parked car because the meter expired.)

3)    Raising Self Defense in New Hampshire initially places a relatively small burden of proof on a defendant to give the State notice of the defense and show "some evidence" to support a rational finding in favor on the defense, for the jury to consider the defense.  (See State v. Vassar,154 NH 371) The State then has to disprove it "beyond a reasonable doubt. The current burden could be eased further for a defendant by putting a presumption in the law.

4)    The section to be amended is misidentified the bill states: "Physical Force in Defense of a Person. Amend RSA 627:4, 111(a) to read as follows:" (Emphasis added) 627:4, 111(a) should read 627:4, III(a). There is no "111" in the law to modify. There is a "III" which I presume is what the sponsor meant means to change.

Suggested amendments to address the above concerns:
In the Year of Our Lord Two Thousand Nine

AN ACT relative to physical force in defense of a person.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1. Physical Force in Defense of a Person. Amend RSA 627:4, II to read as follows:
II. A person is presumed to be justified in using deadly force upon another person when he reasonably believes that such other person:

2. Physical Force in Defense of a Person. Amend RSA 627:4, II(d) to read as follows:

(d) Is likely to use any unlawful force in the commission of a felony against the actor [within such actor's dwelling or its curtilage,] in any place where the actor reasonably believes he or she has a right to be.

3. Physical Force in Defense of a Person. Amend RSA 627:4, III (a) to read as follows:

(a) Retreat from the encounter, except that he or she is not required to retreat if he or she is [within his dwelling or its curtilage,] in any place where the actor reasonably believes he or she has a right to be, and was not the initial aggressor; or

4. Physical Force in Defense of a Person. Amend RSA 627:4, to add new section IV (a) to read as follows:

3 Effective Date. This act shall take effect January 1, 2010.

February 9, 2009

Where are Assault Weapons Banned Today

AR15sbrsilencer.jpgWith the recent discussions about the potential federal ban on assault weapons being reinstated,  I thought it would be interesting to see which states already have bans on Assault Weapons

California bans "assault weapons", .50BMG caliber firearms, some .50 caliber ammunition and "unsafe handguns."

Connecticut  Bans "assault weapons" as well as select fire machine guns.

District of Columbia prohibits new acquisition of handguns and any semi-automatic firearm capable of using a detachable ammunition magazine of more than 12 rounds capacity and any handgun not registered after February 5, 1977  (parts recently ruled unconstitutional).

Hawaii prohibits "assault pistols."  Assault rifles and shotguns are restricted the same regular rifles and shotguns

Illinois: Chicago, Evanston, Oak Park, Morton Grove, Winnetka, Wilmette, and Highland Park prohibit handguns; some cities prohibit other kinds of firearms.  Firearms identification card is required.

Maryland prohibits "assault pistols"; the sale or manufacture of any handgun manufactured after Jan. 1, 1985, that does not appear on the Handgun Roster; and the sale of any handgun manufactured after January 1, 2003 that is not equipped with an "integrated mechanical safety device."

Massachusetts: It is unlawful to sell, transfer or possess "any assault weapon or large capacity feeding device" [more than 10 rounds] that was not legally possessed on September 13, 1994 and the sale of handguns not on the Firearms Roster. The City of Boston has a separate "assault weapons" law.

Michigan: Certain folding stock carbines are restricted.

New Jersey  bans "assault weapons" and high capacity magazines.

New York  bans "assault weapons" unless lawfully possessed or manufactured prior to September 13, 1994.

Ohio: Some local jurisdictions use to ban "assault weapons.", but because of a Ohio Supreme court case, all of these laws are unconstitutional under the preemption doctrine recognized by Ohio.

Virginia prohibits "Street Sweeper" shotguns.

The sunset of the federal assault weapons ban does not affect the validity of state and local "assault weapons" bans.

  NOTE  the picture above is an Assault weapon that is also a SBR and has a silencer.

February 7, 2009

Assault Weapons Trust

An Assault Weapons Trust is a new form of revocable trust that is used to own Assault Weapons as defined in your state.  It allows legally purchasable firearms that your state classifies as Assault Weapons to be owned by the trust and used by the Co-trustees.  As your children or relatives become mature and responsible the trust can be modified to include your heirs or the people of your choice as owners.  This eliminates the need to transfer the weapons in the future which may be in violation of future state laws.

It is important to update the state with any amendments to the trust make sure they know who is authorized to possess and use the firearms.  A NFA trust can also be used to own and possess Assault Weapons. 

Most gun rights individuals expect Obama and the current administration to create a permanent ban for future sales of Assault Weapons.  This may be the time to transfer your firearms into a Assault Weapons Trust or a NFA Firearms Trust.

To find out about an Assault Weapons Trust <a href="http://www.guntrustlawyer.com/contact.html">Contact a lawyer familiar with Assault Weapons and Trusts</a>.
February 7, 2009

What Constitutes a Transfer under the National Firearms Act

Section 479.11 of the National Firearms Act defines a Transfer as:  This term and the various derivatives thereof shall include selling, assigning, pledging, leasing, loaning, giving away, or
otherwise disposing of.

There seems to be much confusion over the violations of the National Firearms Act over this term because the typical legal definition of transfer involves a change in the possession and / or legal title of; convey.

There is clearly a significant difference in how the NFA defines the term Transfer.
February 6, 2009

What is a Machine Gun?

Section 479.11 of the NFA defines a Machine gun as. Any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.

Is a fully automatic 6mm air soft gun a machine gun under the NFA? Of all the terms defined in the NFA, one of the most frequently used ones is the term weapon which is not defined.  I have submitted this question to the ATF and will update the site when we obtain an answer.
February 5, 2009

What is a Person defined as in the NFA

Section 479.11 of the National Firearms Act defines a Person as:  A Partnership, company, association, trust, estate, or corporation , as well as a natural person.
February 4, 2009

Firearm Sales Continue Upward in January

Despite a weak economy and slumping retail sales, firearm sales continued to increase in January, continuing an upswing that began after November's election.

Data from the FBI's National Instant Criminal Background Check System (NICS) show background checks on the sale of firearms jumped 28.8 percent in January when compared to January 2008. The increase follows a 24 percent rise in December and a 42 percent jump in November, when a record 1,529,635 background checks were performed.

FBI background checks are required under federal law for all individuals purchasing firearms from federally licensed retailers. These checks serve as a strong indicator of actual sales.

"Since the election, sales of firearms -- in particular handguns and semi-automatic hunting and target rifles -- are fast outpacing inventory," said Steve Sanetti, president of the National Shooting Sports Foundation (NSSF), the trade association for the firearms and ammunition industry. "Americans are clearly concerned about their ability to be able to purchase these products in an uncertain future."

NICS reported 1,213,885 checks in January, up from 942,556 in the same month a year ago. Last year, a total of 12,709,023 background checks were reported, up 14 percent from 2007.

NSSF, founded in 1961, is the trade association for the firearms, ammunition and recreational shooting sports industry. It promotes the safe ownership and responsible use of products its members make and sell. For more information, visit www.nssf.org