NFA Gun Trust Lawyer Blog

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

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.

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.

The 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.

At 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 Cynthia Veintemillas a Florida Criminal Lawyer

The U.S. Court of Appeals for the Ninth Circuit issued its eagerly anticipated rulling 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.

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.

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

Florida Employers have to let employees keep guns in their cars if they have a concealed weapons permit. But, businesses can still have a no gun policy for customers for now.

U.S. District Judge Robert L. Hinkle  states that there is no second amendment right to bring your gun to someones property and  that customers would have the same right as employees under the new legislation but for the working of the statute which may be fixed later.

The law defines employer as a business with employees who own guns.

While the public perceives NFA weapons as dangerous Guncite.com reports that there have only been two murders since 1934 involving legally registered Machine Guns and one of those was by a police officer.

Neil Hendershot of the Pennsylvania Elder, Estate & Fiduciary Law Blog and Josh Prince wrote a three part series on the Right to keep and bear arms after the Supreme Court decision in Heller.

• Right to Keep and Bear Arms: Part I (06/27/08);

• Right to Keep and Bear Arms: Part II (06/30/08); and

• Right to Keep and Bear Arms: Part III (07/01/08).

Some NFA firearms collectors, who are not engaged in any firearms business, have been known to acquire a GCA license to deal in firearms and pay the NFA special tax to acquire NFA firearms for their personal firearms collections. This is not a wise thing to do and violates the National Firearms Act.

Most individual acquire NFA firearms for the following reasons:

(1) to acquire firearms from nonlicensees residing out-of-state;
(2) to circumvent requirements imposed on individuals to provide their fingerprints and photographs in order to receive NFA firearms and law enforcement certifications authorizing their receipt of such firearms;
(3) to purchase and use items that they are not legally able to obtain as an individual; and
(4) to avoid NFA transfer tax on firearms they receive from FFL's/SOT's.

Warning: These transactions violate the NFA and can only lead to trouble for the individual. In these instances, the individual has committed Federal felonies by falsely stating on a license application and special tax return that the collector intends to conduct a firearms business. Any NFA firearms received tax free by the collector are subject to transfer tax and the collector's receipt of the firearms tax free violated the NFA. As held in ATF Ruling 76-22, these transfers are unlawful and the firearms received are subject to seizure and forfeiture.

If you hold NFA restricted firearms that are of a personal use in nature, under a business license, you should consider creating a NFA Firearms Trust to hold the title to these items to avoid being in violation of the National Firearms Act.

To download a copy of the new Florida Law - Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of (2008)
Guns-at-work-law-florida.pdf

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 machineguns 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 callenge to gun laws.

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