Recently in Firearms Case Law Category

June 8, 2012

Firearms Law and Gun Trust Lawyer® CLE

texascle.jpgMany Lawyers are asking about Gun Trust CLE, I have been working with the Texas Bar on their Firearms Law Seminar. We will be providing some information on Gun Trusts which will be available soon. Attached is the seminar brochure. If you are in Texas they will be covering many topics related to dealing with firearms in the practice of law.

Course Highlights:


  • Firearms Trusts / Gun Trusts - David M. Goldman

  • The Right to Bear Arms in the Post Heller/McDonald World - Stephen Halbrook

  • Self-Defense: Recent Changes to the "Stand Your Ground" Legislation - Massad Ayoob

  • Prohibited Persons and Restoration of Firearms Rights - Stefan Tahmassebi

  • Every Bullet Downrange Has a Lawyer Attached - Ed McConnell

  • Class III SOT - Obtaining and Keeping a Federal Firearms License

  • Concealed Handgun Licenses: How to Get Them and What They Mean

  • Avoiding Malpractice and Ethics Violations in Firearms Matters

  • Self Defense - Recent Changes to "Stand Your Ground" Legislation"

  • Criminal Defense as It Relates to Gun Cases

live
San Antonio
September 28, 2012
La Quinta Convention Center
303 Blum
San Antonio, TX 78205
(210) 222-9181
Register by September 14, 2012 and save $50!


If you want to find out about offering Gun Trusts to your clients Contact Us for more information on how to provide your clients the original Gun Trust created by the Gun Trust Lawyer®

January 10, 2012

Defining the Right to Keep and Bear Arms?

Defining the Right to Keep and Bear Arms? What does it mean and what will it mean in the future?

In all the excitement over the past few years with the Supreme Court cases regarding the Second Amendment many questions have been raised about how to evaluate laws that seem in conflict with this new fundamental right.

In almost every other fundamental right, the court has said that laws regulating the right have to pass a strict scrutiny, but for firearms it appears that something less is acceptable.

It is interesting that law professors from California-based law schools have decided to write a two-part series of articles on this topic. I was originally a little sceptical on an article coming from an area of the country where guns are generally shunned but found that I was surprised by the objective analysis of the authors.

Some of the main points of the first article regarding limitations are:

One Reason Heller Provides a Shaky Foundation for Doctrine: The Lack of a Discussion of the Nature of the Permissible Limitations

Another Limitation in Heller: The Imprecision About What Laws Burden Gun Ownership or Use Enough to Even Trigger the Second Amendment

Follow this link to read the more of What Will the Right to Keep and Bear Arms Mean in the Coming Years

September 7, 2011

Medical Marijuana and Firearms Transfers

With the growing list of states that have some type of legalized marijuana use, it is important not to transfer a firearm to anyone who is a user of marijuana or medical marijuana (which are both illegal under federal laws). Chris Chiafullo at FFLGuard has an interesting article on how transferring a firearm to someone you believe is an unlawful user of marijuana (even if it is legal in your state) is an improper transfer and could subject you and the person who receives the firearm to criminal penalties.

If you have a Gun Trust, you should also be cautious about having a co-trustee that uses medical marijuana as it could create liability for you and the other people involved with your trust. If you have a trustee in one of the following states, you may want to check on their medical marijuana usage: Alaska, Arizona, California, Colorado, Delaware the District of Columbia, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, New Jersey, Oregon,Vermont, Rhode Island, and Washington have legalized the medical use of marijuana in some form or fashion.

Gun Trust Lawyer®, David Goldman is a counsel of FFLGuard and provides information and legal advise regarding Class III issues. For more information on FFLGuard or to join FFLGuard call 1-888-FFL-GRD1 or visit FFLGuard.com

January 22, 2011

CLEO Signature costs $150 in Anchorage Alaska

machine-guns.jpgThanks to the Alaska Machine Gun Association for letting us know about this. The Municipality of Anchorage has just imposed at $150 fee, effective 1 Jan 11, to process BATFE forms for CLEO signature.

Many might think that this is a Tax on a Tax and would violate Alaska's preemption statute.

While CLEO sign off is often the initial reason individuals begin to look at trusts, We have found that the other advantages of a NFA trust are the overriding reason most end up using a NFA Firearms trust over a revocable trust.

If you want more information on a NFA trust in Alaska or any state contact an Alaska Gun Trust Lawyer®

June 28, 2010

McDonald v Chicago: Supreme Court Reversed and Remanded Case

The Supreme Court has ruled today in an opinion by Judge Alito that the 2nd Amendment applies to the states through the 14th. More to come later. If you want to read the decision it's posted on the Supreme Court Website - McDonald v. Chicago or from our website McDonald_v_Chicago.pdf

April 22, 2010

SBR / SBS will be legal in Alabama on 7/5/2010- AL NFA Gun Trust Update

Alabama Governor Riley signed a bill into law making Short Barreled Riffles and Shotguns legal to own. The law was signed on 4/14/2010 and becomes effective on 7/5/2010. If you have a NFA Gun Trust, there is nothing you need to do, to be able to purchase these items after 7/5/2010.

This also means if you are going to travel to Alabama, you can use a Form 20 to bring your SBR or SBS to Alabama after the law goes into effect.

April 21, 2010

Criminal Use of Silencers, Machine Gun, SBR, SBS, or DD

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).

March 8, 2010

Gun Trust Lawyer® sponsors 13th Annual National Firearms Law Seminar

lawseminar.jpgThe 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

March 2, 2010

McDonald v. Chicago Oral Arguments heard by Supreme Court Today

Some are calling McDonald v. Chicago - Heller for the rest of us.

A few minutes ago, at 10 AM EST the Supreme Court of the United States began hearing the oral arguments in McDonald v. Chicago, a major Second Amendment case that is expected to determine if states and cities must comply with the Second Amendment of the US Constitution.

October 4, 2009

Supreme Court to Hear 2A Case: McDonald v. Chicago

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.

August 5, 2009

Constructive Possession: NFA Trusts vs Individual Ownership

777968_alcatraz.jpgThe NFA defines who can own a Title II firearm as a natural person, corporation or trust.... When an individual makes application to own a Title II firearm they are the only person who can be in possession or have access to the firearm. This creates a problem for many individuals who are married, have others who know the combination or how to gain access to the items, or want to allow others to use the firearms, even in their presence.

Joshua Prince has written and excellent analysis of the case law surrounding constructive possession and the US v. Turnbough case which stated that the Government may establish constructive possession by demonstrating that the defendant exercised ownership, dominion or control over the premises in which the contraband is concealed. Joshua goes on the state that if a spouse or other person does have the combination to the safe where the NFA firearms are kept it would be virtually impossible for the prosecutor to show that the other individual knowingly has the power to exercise dominion and control over the firearms.

The real problem occurs when another does have access to the items or can exercise dominion and control over the NFA firearm because the prosecutor can then charge that individual with constructive possession. In US v. Turnbough, an illegal firearm was in Turnbough's home and the court of appeals found that a reasonable jury could have found that he, his live in girlfriend, and her child could conclude that all three parties exercised dominion and control over the gun and the possession could be either sole or joint.

While there are not any constructive possession cases involving NFA firearms this does not mean that the BATFE could not bring a charge of constructive possession against a spouse or other person who could exercise dominion and control over an NFA firearm.

Remember that there is no intent element to violate the NFA. Like speeding, you do not have to intend to speed to be charged with speeding.

So how can you protect yourself, your family, and your friends? If you use a NFA trust or other allowable business entity to own the items, you can allow others to be in possession, use, purchase, and know how to access the firearms.

There are many downsides to using a business entity to own NFA firearms. In most states, there are yearly state fees associated with the entity. In addition, you must deal with loss of privacy, EIN's, and federal tax compliance for the entity. The ATF only recognizes those on the official state records as having access to the items. The entity will be subject to probate upon the death of any owner. There are typically costs associated with updating the state records to allow for changes in possession and it takes time to make these changes. There are no provisions in a business entity to deal with incapacity or death in determining whom the beneficiaries are, where they live, if they are qualified to receive the items, directions on how to properly transfer the ownership and items, and most importantly if the beneficiary is mature and responsible enough upon your death that you would want to put the firearms in their hands.

Because a trust deals with these items on a regular basis, a NFA Trust (different than the traditional Quicken, Legal Zoom, or lawyer prepared revocable trust) can provide the ability to easily add, remove, or modify the users, owners, and purchasers as well as deal with the unique issues of firearms ownership that are not present in other types of ownership.

We work with more than 75 lawyers in over 43 states that can help you design a NFA trust to meet your specific needs and goals. Our NFA trust does not use a schedule of assets so your other firearms that are placed in the trust do not become know to the ATF upon the purchase of a Title II firearm from a Class 3 dealer or individual.

If you have any question on how a NFA trust can help you purchase Title II firearms and protect your family and friends from the criminal penalties associated with improper possession, purchase, use, or transfers please contact a Gun Trust Lawyer® and we would be happy to answer your questions. In Florida please contact our Florida Gun Trust Lawyer®.

May 4, 2009

Can a Felon Possess a Firearm in Florida?

antiquefirearm250x186-495.jpgAt first glance, Florida has a funny quirk with the way firearms are defined that allows a Felon to possess certain firearms that are not defined as firearms under Florida law.  Upon further investigation, the federal law also exempts antique firearms from the definition of a firearm.  I was recently asked if a convicted felon could possess a black powder gun for hunting in the state of Florida. The answer to this question depends on the gun itself. 

Florida Statutes 790.001(6) defines a Firearm as as any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of a crime.

Florida Statutes 790.001(1) defines an Antique Firearm as any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.
So it would appear that a Felon could own certain black powder guns in Florida as long as the firearm was not used in the commission of a crime.  There has even been some case law dealing with black powder firearms owned by a felon.

In 2005, Florida's 5th DCA, affirmed the lower courts ruling that David Bostic, a convicted felon, had violated the law by being in possession of a firearm.  Bostic had claimed that his black powder firearm was an antique firearm and thus exempt from the restrictions place upon him.  The court agreed that he was able to own an antique firearm but disagreed that his firearm was an antique.  The court stated that Florida case law defines replica as a reasonably exact reproduction of the object involved that, when viewed causes the person to see substantially the same object as the original. The DCA found that Bostic's gun was not a replica because the original did not have a fiber optic sight that was present on his gun.  The court also stated that merely having an ignition system similar to that found on an antique firearm is not sufficient to render a firearm a "replica" of a firearm manufactured in or before 1918.

In Williams, the Florida Supreme Court in dicta dealing with the concealment of an antique firearms states that the result of such an interpretation to allow convicted felons to be in possession of antique firearms is absurd.  And that a basic tenet of statutory construction is to not yield an absurd result.

While these two cases seem to contradict each other, both courts find a reason to deny the felon possession of an antique firearm.  There are no cases which state approve the possession of an antique firearm by a felon.

This topic was also covered on the Jacksonville Criminal Defense Lawyer Blog by Florida Criminal Lawyer
April 21, 2009

The Second Amendment Does Apply to the States: Nordyke v. King

The U.S. Court of Appeals for the Ninth Circuit issued its eagerly anticipated ruling   in Nordyke v. King yesterday, holding that the 2nd Amendment of the US Constitution protects the individual right to keep and bear arms against violation by state and local governments.  The court upheld the ordinance and stated:
We therefore conclude that the right to keep and bear arms is "deeply rooted in this Nation's history and tradition." Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the "true palladium of liberty." Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.
Many were hoping for a ruling forbidding states from abridging fundamental rights of citizens but the Ninth Circuit rejected this view in citing the Slaughter-House Cases as precedent.  In doing so it applied the Second Amendment to the states through the 14th Amendment.  Many are hopeful that the seemingly distorted view of the 14th Amendment will be changed one day to reflect its original interpretation.
December 2, 2008

District of Columbia V. Heller

Heller-book.jpg
The NRA is offering a special book by Les Adams, author of The Second Amendment Primer, which deals with the Heller decision.

You can order a signed copy of the District of Columbia v. Heller: An Anatomy of the Supreme Court's Landmark Second Amendment Decision  from the NRA's Affiliate Palladium Press. You can also call them at 1-888-397-3377.
November 19, 2008

Leonard Elliott's Story of an ATF Raid on His Gun Store

Leonard Elliot's store was raided by the ATF almost 3 years ago.  After a 3 day trial he and his father were found not guilty on all counts.

JPFO has an audio interview with Leonard Elliott about his ordeal. To listen to this interview click the following link leonard-elliott.mp3 target=new