NFA Gun Trust Lawyer Blog

Tom Mighel at Inter Alia, an internet legal research weblog, listed the NFA Gun Trust Lawyer Blog as the Blawg of the day. Blawg is a term used in the legal community for a legal blog.

Here is a clip from Fox News about gun safety and Eddie the Eagle, the NRA mascot.

Paul Clark has written an article where he notes that if you use of most Title II firearms during a crime of violence or drug trafficking you are subject to a 30 year mandatory minimum sentence. It appears that the 30 year sentence applies to the possession and its use is not required. Note this applies even if you are legally in possession of the silencer by ownership in a NFA Trust, corporation, LLC, or individual ownership.

While the data appears to show that the use of a silencer or most other Title II firearms in a crime is a rare occurrence, individuals might take this into consideration when using silencers on personal firearms when there is a chance that they might be charged with a crime of violence, such as defending yourself.

While many states have stand your ground statutes or castle doctrines, its possible that overzealous self-defense can lead to criminal charges. If the charges are in the federal court, you could be looking at enhanced penalties like those described in 18. U.S.C. Section 924(c)(1).

The NRA foundation is having the 13th Annual National Firearms Law Seminar in Charlotte NC Friday may 14, 2010.

The Topics to be covered are

• McDonald v. Chicago: From Heller to Chicagoland: Incorporation of the 2nd Amendment


• Future Areas of Litigation


• "Presumptively Lawful" Restrictions after Heller & McDonald


• Concealed Carry Licenses & Licenses Required to Possess or Acquire a Firearm


• Self-Defense Laws and Cases


• International Arms Control Treaties and Agreements


• Federal Laws Governing Firearms Possession


• Domestic Protective Order and Misdemeanor Domestic Violence Convictions


• The Restoration of Rights after Prohibition


• NFA Trusts and Major Provisions of the National Firearms Act (NFA)


• Representing the Federal Firearms Licensee (FFL)


• The Application of Environmental Case Law to Managing Outdoor Shooting Ranges


• Mental Health Prohibitions and Processes: An Area of Growing Concern for Veterans

For more information on this seminar please visit the NRA Foundation Law Seminar Website

If you purchased a GSG 5 SD model with a barrel shroud (Fake Suppressor) ATF has now determined that this is regulated by the NFA and must be replaced.
To all retail customers:

On January 2010 American Tactical Imports Inc received official notification from the Bureau of Alcohol, Tobacco, Firearms and explosives that the original barrel shroud (aka: fake suppressor) supplied with your GSG 5 SD model must be replaced. It has been determined that this shroud is regulated under the National Firearms Act. American Tactical will provide a replacement shroud at no charge for each GSG 5 SD model sold or currently in inventory.

Consumers in possession of a GSG 5 SD model with the original shroud in place on the firearm are now in violation of the NFA. To avoid continued violation of the NFA, ATI asks that all persons in possession obtain a replacement shroud as soon as possible. We anticipate arrival of the new shrouds to begin by the middle of February 2010.

IMPORTANT: THE ORIGINAL SD MODEL SHROUD MUST BE RETURNED ACCOMPANIED BY THE FIREARM SERIAL NUMBER BEFORE A REPLACEMENT SHROUD IS ISSUED. THE DIAMETER OF THE SD SHROUD IS 1-9/16". DO NOT RETURN THE SMALLER CARBINE SHROUD.

WHAT TO DO:
If possible return your old shroud to the dealer where purchased and show him this notice. The shroud will be returned to ATI along with a list of serial numbers from the guns that the shrouds were removed. ATI will send replacements to the dealer for pick up at your convenience; ATI will be sending replacements as fast as logistics allow. If your dealer is out of business or difficult to reach, or you purchased your gun used, from a consumer, return the shroud directly by US mail or UPS to American Tactical Imports Inc. 100 Airpark Drive Rochester, NY 14624.

PLEASE TRY NOT TO CALL US. We will provide comprehensive information on our web site www.americantactical.us or by e-mail to atiexchange@americantactical.us

REMEMBER, INCLUDE THE FIREARM SERIAL NUMBER WITH EACH SHROUD OR A REPLACEMENT WILL NOT BE ISSUED.

This action IS NOT being instituted through any fault and is strictly due to NFA compliance. American Tactical will assume the responsibility to satisfy the requirements in an effort to minimize the impact on our customers and protect your investment.
We at American Tactical Imports Inc. sincerely apologize for any inconvenience caused by this unfortunate situation.

Sincerely,
Anthony DiChario
President C.E.O.

A California Gun and & Trust Lawyer, (not currently a NFA Gun Trust Lawyer) has written an interesting article on creating language in your trust to specifically permit the trust funds to be used for firearms education and training along with the typical K-12, college, or post-graduate study that most trusts would allow for. After all it was George Washington who said that "firearms deserve a place of honor with all that's good."

David R. Duringer, a firearms trainer, and attorney licensed in CA and WA goes on to state:

Such training can provide your children with the comfort of skill at arms so they can protect themselves and their own children, and furthermore, passes on American values necessary to preserve political independence of families in our society. Other benefits of such training can include increased personal responsibility and lower juvenile delinquency rates.

You may even want to go further with an incentive trust provision actually requiring this training, possibly with achievement standards.

For more information on California Estate Planning Visit David's site or for Florida Estate Planning you can visit my Florida Estate Planning Lawyer Blog or my firm's website on Florida Estate Planning and other topics. If you need help getting in touch with an estate planning lawyer in your state who is firearms friendly just let me know.

I just received an email from Wayne LaPierre asking that I let our readers know about a Free Membership in the NRA that they are offering.

This free introductory NRA membership comes with a subscription to our bi-weekly e-newsletter, The NRA Freedom Times, valuable member discounts and free admission to NRA's Annual Show which features over five acres of guns, gear and outfitter displays all for free.

If you know any non NRA members have them sign up for a free membership so that we can all work together to protect our rights.

NFA Firearms (also called Title II Firearms) are guns and other items regulated by the National Firearms Act (the "NFA"). Many people mistakenly refer to them as "Class 3" firearms or weapons. The NFA regulates the sale, use, possession, and transfer of machine guns, short-barreled shotguns and rifles, silencers, destructive devices, and AOWs.

In most states, some or all of these items are LEGAL to own. In addition to state regulation, federal law regulates these items under the NFA. Individuals, business entities, and trusts are permitted to purchase NFA firearms if allowed by state law. To obtain permission to transfer or make these items, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (the "BATFE" or "ATF") requires completion of a Form1 or Form 4 along with payment of $200 for a tax stamp.

While a traditional trust can be used to purchase NFA firearms, there are many problems with using a traditional trust and therefore only an NFA Firearms Trust should be used.

We work with more than 75 lawyers in over 43 states to help individuals and their families educate and protect themselves from unintentional violations of the NFA. The process of creating an NFA Firearms trust involves discussing the client's objectives, determining what and how their family makeup will influence the structure of the trust, as well as trying to limit future legislative and transfer tax risks associated with NFA firearms ownership. Once the trust is designed an attorney who is licensed in the proper state reviews the trust and then forwards the trust to the client. The client reviews the instructions and FAQs and has a phone consultation to discuss any questions or comments on federal and state laws. If necessary, modifications are made, then the all grantors and trustees sign the trust. Once the trust is properly executed, NFA items can be purchased.

If you are looking for a NFA Firearms Trust Lawyer contact us and we can help.

No CLEO Signature Required

The ATF requires that all individuals obtain approval from their Chief Law Enforcement Officer (the "CLEO") as part of the application process to obtain a Title II firearm from another individual or Class 3 dealer. Many CLEOs around the country are refusing sign or even acknowledge the ATF Forms. There is no legal remedy in most states to force the review of these forms. If using an NFA Firearms Trust to purchase a weapon, the Form 4 does not require the CLEO's signature.

No Fingerprints or Photographs are Required

When using an NFA Firearms Trust to acquire Title II firearms, no fingerprints or photographs are required. This is a cost savings and can also significantly decrease the time required to take possession of the items. Often fingerprints have to be retaken because they are not acceptable for the FBI's criminal database.

Privacy

Individuals who submit their ATF forms to their CLEO are often concerned about who will have knowledge of their firearms. They also express concerns that they will come under additional scrutiny because the police will have knowledge that they are in possession of these more restricted firearms. With an NFA Firearms Trust, neither the CLEO nor the police are given notice that you will be in possession of or own the NFA firearms.

Incapacity

If you become incapacitated your family or friends are the ones who step forward to help you. In doing so, they may come in contact with the restricted items and put themselves at risk of violating the NFA without knowledge. An NFA Firearms Trust help protect these individuals from violating the NFA by providing them clear instructions on what they are and are not permitted to do.

Death

When you die your individually owned firearms will be part of your "probate estate." Probate proceedings will be necessary to transfer your guns under your will or to your heirs and are part of the public record. Since a family member or a friend usually handles probate proceedings, it is important not to unknowingly place them at risk of violating the NFA. With an NFA Firearms Trust, your firearms are not subject to probate or public record. Your beneficiaries will be protected because they will receive guidance on how and under what circumstances the items can be legally transferred to others. If you have children, an NFA Firearms Trust has specific provisions to protect them and make sure they do not receive the property if they live in a location where it is illegal to possess NFA firearms, and most importantly they are mature and responsible enough that you would want them to have the firearms.

Co-owners and Authorized Users

If an individual purchases Title II firearms then he or she is the only one permitted to use or have access the firearms. Many people incorrectly believe that it is ok to let others use their NFA firearms when in their presence. However, the NFA would consider this a transfer and be a violation of the law. When your spouse or someone else knows the combination to your firearms safe, you may be violating the restriction on letting others access or possess your firearms. Improper possession through constructive possession is a form of unauthorized possession, and a violation of the NFA. If you use an NFA Firearms Trust to purchase Title II firearms, you can designate additional owners and authorized users. You can eliminate the risk associated with an improper constructive possession with a simple signature authorizing that person to be in legal possession of the items. This can help protect you and your family from the penalties of violating the NFA.

Reducing Risk of Legal Changes

Many groups are attempting to limit the ability to transfer firearms to their family or friends. With an NFA Firearms Trust an adult child, family member, or friend can be made a co-owner of the trust. While the ownership of the NFA Firearms Trust can be changed, the NFA Firearms Trust is still the registered owner of the firearms and no transfer has taken place under the NFA.

Penalties for Violating the National Firearms Act can be Severe.

Each violation of the National Firearms Act subjects the owner to forfeiture of all weapons, 10 years in prison, and fines of up to $250,000. An NFA Firearms Trust provides guidance to the creators, managers, and beneficiaries of the trust to help them avoid violating the NFA.

Benefits of a NFA Firearms Trust Over a Corporation or LLC

Corporations and LLCs have annual fees associated with them. Business entities are not private and much information about the individuals associated with them is contained in public records. Corporations and LLCs have annual state fees and other costs associated with the maintaince of the entity. Often business entities are subject to the requirement to file sales tax and income tax returns. If you already have a business entity that is used to purchase NFA firearms, the business is at risk if the managers or anyone else ever misuse a firearm. Each manager of a corporation of LLC can purchase firearms and subject the entity to the penalties for violating the NFA. To make a change to the people authorized to use, purchase, or possess the firearms, the secretary of state needs to be updated with the changes in the management of the company. This can cost money and take a substantial time to complete. In addition, business entities do not deal with incapacity or death like an NFA Firearms Trust does. Unlike with a corporation or LLC, an NFA Firearms Trust does not require any annual recording fees and documents do not need to be filed with the state. To make a change to an NFA Firearms Trust, one simply amends the trust to change who can use, purchase, or possess the firearms without risk of criminal liability for violating the NFA.

Benefits of a NFA Firearms Trust over a Revocable Trust

There are more than 50 differences between a traditional trusts and an NFA Firearms Trust. Only a few of the issues will be discussed here. Most trusts do not instruct how to purchase, who may use, or who may have access to Title II firearms. They also do not give the people involved with the trust enough information to properly sell or transfer assets. If you become incapacitated, it may be necessary to sell some assets. When you die, these restricted firearms need to be transferred properly. An NFA Firearms trust provides information to determine if:

1. it is permissible to transfer the items;


2. the items are legal in the state where they will be transferred to;


3. the beneficiary is legally able to be in possession of or use the firearms; and most importantly


4. the successor trustee is given the ability to determine in their own mind, if the beneficiary is mature and responsible enough to receive the firearms.

A normal trust allows the trust to be revoked even if it's assets become illegal upon revocation. Also a normal trust allows a trustee to resign while they are still in possession of restricted firearms. A trustee may also find that with a normal trust, an agent acting under a power of attorney may take actions that are in violation of the NFA and subject them to criminal penalties.

Most people using traditional trusts purchase NFA firearms incorrectly. They usually purchase them as an individual and then transfer the weapons into the trust. While the ATF may approve a transfer from the dealer to the trust, they never approved an individual transfer from the dealer nor a transfer from the individual to the trust.

Invalid Trusts

Many Free Trusts on the Internet or from other sources have been found to be invalid. Lately we have seen many dealers and manufactures providing trusts to customers or helping them to fill out the trusts in order to purchase firearms. The problem with using an invalid trust or one not signed correctly or at trust that is not complete is that the trust does not exist. If the trust does not exist, even if the ATF approves a transfer to the trust, you will be illegally in possession of the firearm and subject to the penalties of the NFA. Even valid trust have substantial problems with dealing with incapacity, death, and transfer of the firearms as they instruct the trustees to take steps that create liability to the beneficiary put the assets at risk of seizure, and put both the trustee's and beneficiary at risk of the penalties for violating the NFA.

If you want to form a NFA Firearms Trust or have your trust reviewed Contact a NFA Firearms Trust Attorney

The Supreme Court has recently decided to hear the landmark Second Amendment case of McDonald v. Chicago. This case will address the application of the Second Amendment to the states through either the Due Process clause or the Privileges or Immunities clause of the Fourteenth Amendment. The case has major implications for the legality of restrictive gun laws not only in Chicago, but also in other cities across the United States. The decision to hear the case, which will be argued early next year, gives Second Amendment advocates across America hope that this fundamental freedom will not be infringed by unreasonable state and local laws.

Previously the U.S. Court of Appeals for the Seventh Circuit held that the Second Amendment does not apply to state and local governments. That opinion left in place the current ban on the possession of handguns in Chicago.

Many legal scholars believe that the Seventh Circuit should have followed the lead of the earlier Ninth Circuit panel decision in Nordyke v. Alameda County, which found that those cases don't prevent the Second Amendment from applying to the states through the Due Process clause of the Fourteenth Amendment. To the contrary, a proper incorporation analysis supports application of the Second Amendment to the States.

From the NRA:
Despite its very misleading name, this national group of anti-gun mayors has lobbied Congress against national reciprocity of state Right-to-Carry permits, against much-needed reform of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE), for regulating gun shows out of existence, and for repealing the Tiahrt Amendment that protects the privacy rights of law-abiding gun owners and limits disclosure of sensitive firearm trace data to protect law enforcement personnel and protect lawful gun manufacturers from bogus lawsuits.

You can contact them by using the information provided on this Map. Please call , email and write your mayor today and ask them to support law abiding gun owners by disassociating themselves with Bloomberg and "Mayors Against Illegal Guns"

Atlantic Beach:	Mayor John S. Meserve
Atlantis:	Mayor Manny Fernandez
Aventura:	Mayor: Susan Gottlieb
Bowling Green:	Mayor Perry Knight
Cooper City:	Mayor Debby Eisinger
Coral Springs:	Mayor Scott J. Brook
Doral:	Mayor Juan Carlos Bermudez
El Portal:	Mayor Joyce A. Davis
Fernandina Beach:	Mayor Bruce Malcolm
Fort Myers:	Mayor Jim Humphrey
Greenwood:	Mayor Charles Sanders
Hallandale Beach:	Mayor Joy Cooper
Haverhill:	Mayor Joseph S. Kroll
Hollywood:	Mayor Peter Bober
Hypoluxo:	Mayor Kenneth Schultz
Jacksonville:	Mayor John Peyton
Kenneth City:	Mayor Muriel H. Whitman
Keystone Heights:	Mayor Mary Lou Hildreth
Largo:	Mayor Patricia Gerard
Lauderdale: Lakes	Mayor Barrington Russell
Lauderdale-By-The-Sea:	Mayor Roseann Minnet
Lauderhill:	Mayor Richard J. Kaplan
Malone:	Mayor Gene Wright
Miami:	Mayor Manuel Diaz
Miami Beach:	Mayor Matti Herrera Bower
Miami-Dade County:	Mayor Carlos Alvarez
Naples:	Mayor Bill Barnett
Neptune Beach:	Mayor Harriet Pruette
Newberry:	Mayor John Glanzer
Niceville:	Mayor Randall Wise
North Miami:	Mayor Andre Pierre
North Miami Beach:	Mayor Raymond Marin
North Palm Beach:	Mayor David B. Norris
Oak Hill:	Mayor Darla Lauer
Opa Locka:	Mayor Joseph L. Kelley
Orlando:	Mayor Buddy Dyer
Ormond Beach:	Mayor Fred Costello
Pembroke Park:	Mayor Emma Shoaff
Pembroke Pines:	Mayor Frank C. Ortis
Pompano Beach:	Mayor Lamar Fisher
Port St Lucie:	Mayor Patricia Christensen
Tallahassee:	Mayor John Marks III
Tamarac:	Mayor Beth Talabisco
Tampa:	Mayor Pam Iorio
West Palm Beach:	Mayor Lois Frankel
Windermere:	Mayor Gary Bruhn
Winter Park:	Mayor David C. Strong

The following mayors in Florida have already resigned their MAIG membership due to your grassroots efforts:

Boynton:	Mayor Jerry Taylor
Dundee:	Mayor Linda Riner-Mizell
Madeira Beach:	Mayor Patricia J. Shontz
Key West:	Mayor Morgan McPherson
Palm Shores:	Mayor Carol McCormack
Tarpon Springs:	Mayor Beverly Billiris
Winter Springs:	Mayor John F. Bush

NFA firearms and Constructive Possession. Some said it would never happen, but it seem that just recently Jesus Amador was arrested for possession / Constructive possession of an SBR.

Florida law does not allow individuals to possess the pieces to readily build an SBR, SBS, or Machine Gun unless permitted to do so under Federal law. While he may have been enticed by the police to take an action that he would not have taken, he eventually showed up to unknowingly sell the items to a police officer. Upon doing so 7 police officers at gun point slammed him to the ground and arrested him (as reported by Joshua Prince on his gun blog and by Mr Amador on Florida Gun Trader)

While some may say that this is a possession issue and not constructive possession, the fact is that constructive or actual possession are only ways to prove possession and as such there may be little significance between the two.

If you are going purchase, own, or use NFA firearms make sure you are protected by using a NFA Gun Trust that deals with these special firearms as Title II firearms and not as a traditional asset like a house, care, boat, bank account, or picture on the wall. If you do not believe there is a difference, call us and we will explain how they are different and why you need a gun trust for your firearms.

While many dealers provide Trusts and help clients fill our Trust Documents ( a violation of law in most states), this was the first time I had run across a Manufacture of Title II firearms who was providing trusts to clients. This Trust was not being completed by the Class 3 manufacture, but was a Fill in the blank form that was supplied by a silencer manufacture. It had a place to print your name, date, pick successor trustee's and sign. There was no place to witness ( a requirement in many states). While the trust appeared to be better than some forms we have seen, it will missing some of the schedules. The main schedule that was missing was the Schedule of Beneficiaries. It was not evident that one was necessary and as such the trusts we were reviewing did not contain them.

As we have discussed before, a beneficiary is an essential element to a trust and in most cases the failure to include a beneficiary who is different from the creator will cause a trust to be invalid.

This trust, as with many Quicken or Legal Zoom trusts failed to address the firearms and the many unique issues that arise when dealing with Firearms. If a valid trust would have been created, it could have transferred a bank account, chair, picture on the wall, or most any item without problem, but would have not been a good idea to use for a firearm.

In addition, because of the way the trust was structured, there was no way to include provisions to protect a spouse or other person who you would want to have access, use, or purchase their own NFA (Title II Firearm).

While the last gun dealer who was supplying invalid trusts was quick to respond, this manufacture seemed to take the attitude that it was the individuals responsibility to make sure they did the right thing, and that the form they supplied was not to be used, just a sample that they could start with.

When I suggested that the correct the form to at least allow their customers to make a valid trust, there was little interests and I would bet that nothing changes.

Remember just because the ATF approves a transfer to a trust, it does not mean your trust is valid, nor that you are legally able to possess the firearm. All it means is that if the trust is legal (which they do not guarantee) you can be in possession.

If you received your trust from a dealer, found it online, or tried to create a valid trust with legal zoom or quicken and would like it evaluated under your personal circumstances for validity and potential issues with the NFA and future transfers, Contact a NFA Trust Lawyer or Gun Trust Lawyer to review your trust.

Keep your information private by purchasing firearms with a NFA Trust.

Beginning June 29, 2009, the FBI Criminal Justice Information Services (CJIS) Division's National Instant Criminal Background Check System (NICS) section is requiring that place of birth be provided for all FBI-initiated transactions.

There are claims that this addition to the NICS will be valuable for the following reasons:

• Place of birth is a mandatory field on the ATF Form 4473 and is therefore readily available for inclusion in the NICS check. There are no additional information disclosures for the potential purchaser or data collection requirements for FFLs.
• Being a name-based search, having additional data points such as the place of birth helps to increase the accuracy and efficiency of firearm eligibility determinations. Place of birth is either a mandatory or optional field for entry of records into all three of the databases that the NICS searches against: the Interstate Identification Index (III), the National Crime Information Center, and the NICS Index.

This new requirement, to provide place of birth when initiating a NICS background check, will have minimal impact to the FFL and should reduce cases where the approval cannot be determined.

If you have additional questions regarding the newly required place of birth information when initiating a NICS check, please fell free to contact NICS Customer Service at (877) 444-6427.

The Citizens Committee for the Right to Keep and Bear Arms is offering free bumper stickers nationwide by calling them at 425-454-4911 or visiting their website.