NFA Gun Trust Lawyer Blog

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

This week an 8 year old child shot and killed himself at a gun show in Massachusetts.  For a good analysis of the potential negligence claims involving a child using a Machine Gun look at David Wolf's Florida Child Injury Lawyer Blog. This unfortunate incident goes to show the dangers of letting children possess or use a Machine Gun.  The NFA prohibits the transfer of weapons to children without an approval, except transfer of an item to a gun store employee or other licensed reseller.  Section 5845 (j) of the NFA defines transfer: 

The term. 'transfer' and the various derivatives of such word, shall include selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of.

It appears that even though the gun show organizer may have been able to allow the child to shoot the Uzi under state law with the permission of the parent, the gun dealer was in violation of the NFA for transferring or loaning the weapon to the child.

In addition it is illegal under Chapter 5861 for any person to receive or possess a firearm transferred to him.

Not only was it a violation of the NFA to allow the child to be in possession, but the child was also in violation of the NFA for being in possession of the UZI. 

This unfortunate incident only goes to show the importance of safeguarding NFA firearms from the use or access of others.  If you own a machine gun as an individual and die, your child could inherit the machine gun.  As we have too often seen, some children cannot comprehend the dangers of guns.  A properly drafted NFA Firearms trust can protect young children from gaining access to restricted firearms or any firearms until the child reaches a specified age and others determine that they are legally and mentally stable and responsible enough to manage a firearm.

Working with many elderly clients in my Florida Elder Law and Florida Estate Planning Law firm, I like to report on items that tend to make life easier and have yet to see another product like this.  As people age, they often develop medical issues that would prevent them form being able to use a normal firearm to protect themselves, their family, of their possessions.  The Palm Pistol seems to have solved many of those problems by creating a single shot pistol with a combination lock and a thumb trigger.

The thumb is often much stronger than ones forefinger and in the case of an individual that has lost a finger, the Palm Pistol offers the ability to use ones thumb instead of a finger.

The initial price of the pistol is $275 for those who pre-order and will be $300 after shipping.  For those who need protection this seems like a reasonably priced solution.   They have posted a letter form the ATF that classifies this as a standard pistol.

There have been some concerns that the gun would be classified as an AOW.  If that should happen, a NFA Gun Trust would allow individuals to purchase the item in most states for a $5 transfer fee that is associated with the purchase of an AOW. 

NOTE:  AOW's are not legal in every state, so you would have to check your state's laws to see if AOW's are permitted.  But for now, it appears that the ATF will consider this a normal pistol.

For more information on this please contact
Constitution Arms

12 Hoffman Street, Maplewood, NJ 07040-1114

973-378-8011 mcarmel@constitutionarms.com www.constitutionarms.com

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.

Generally when creating a NFA trust, one must look to the laws of their state and how they affect the right to own a class III firearm.

What happens if you live in New York or any state where some Class III firearms are banned but plan to use and keep them in another state where they are legal?  Can you a resident of a state where the item is banned purchase, store, and use the items in a state where its legal.

According to the ATF,  an individual can purchase an item restricted by the NFA that is not permitted in the state of residence of the trustee, when the trust will be located, and item will be only used and maintained in states where it is legal.

This means a NY resident can purchase a class III firearm in PA when it is under a PA trust and the firearm is kept and used in PA.

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

Today the Supreme Court Ruled on the Second Amendment Right to Bear and Keep arms.  John McCain issued the followign 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."

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:

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

If you live in a city in where the Chief law Enforcement Officer (CLEO) will not or easily sign a Form 4, there are several solutions.
Class 3 Weapons include suppressors, , short barrel rifles, machine guns, and other destructive devices.

The most common solution is to create a NFA revocable trust to hold title to the firearm or class 3 items. A NFA Gun Trust, Class 3 Firearms Trust, Florida Limited Liability Company, or Florida Corporation is a legal entity established under state law.

For NFA purposes many individuals prefer the a Revocable Trust over a corporation or LLC because the cost is far less on an ongoing basis. Business entities typically have state filing fees of around $150 a year. In addition there are the costs of tax preparation, compliance and filings with the IRS. In Florida and many other states Revocable Trusts like the NFA or Firearms trust do not require any disclosure or public filings. This means the ownership, control, and management is private. Although most Florida Revocable or Living Trusts can hold firearms or other class 3 items, many are not properly setup to deal with the issues involving firearms and other items which are regulated by the National Firearms Act (NFA). If the NFA is violated, the people in possession, and who transferred the items are subject to criminal charges, substantial fines, and forfeiture of not only the class 3 items in question but all firearms in the possession or ownership. ($250,000 penalty, 10 years in prison, and forfeiture of items) The gun or firearms trust must give the Trustee instructions and special powers so that they can legally manage for unplanned events. Weapons and other assets in a Firearms Trust can not be distributed like other assets upon the death or incapacity of the person who placed the items in the trust(The Grantor or Settlor). There are many advantages to a firearms trust, if you own or plan to purchase a class 3 items you should contact a lawyer who is familiar with these issues and can design a trust to protect you and your family from liability. If you are in Florida you can contact me and if you are in another state I would be happy to get you in touch with a lawyer in your state who can provide information on NFA Gun Trusts.

This blog is dedicated to providing information to help residents of every state understand the current laws and regulations related to the purchase, sale, possession, and transportation of Guns and other weapons regulated by the NFA. In addition, we will attempt to put you in contact with a lawyer in your state who can help in the purchase, manufacture, possession, or transfer of Silencer, Short-Barreled Rifle, Short Barreled Shotgun, Machine Gun, Destructive Device, or Any Other Weapon regulated by the NFA.

If you are a lawyer in and interested in helping clients in your state preserve their rights to purchase class 3 items please contact us.

If you are interested in a NFA Trust to purchase Class 3 items and would like to find someone to help in the preparation of a Gun Trust you should contact a NFA Gun Trust Lawyer.

The National Firearm Act of 1934 was enacted in reaction to activities of gangsters and outlaws of the time. The original law was passed as tax legislation in order to discourage ownership of certain firearms and destructive devices without creating an outright prohibition of the items. The tax on the weapons of $200 was a substantial amount of money in 1934. Because criminals were unlikely to register their NFA weapons, the government was able to use the possession of the weapons without proper tax as a tool to arrest and stop criminal activity. At the time the enforcement of the NFA was the responsibility of the Department of the Treasury.

The National Firearms act controls the ownership, transfer, and possession of a limited set of devices which include machine guns, silencers, short barreled rifles, and short barreled shotguns by requiring federal registration and a tax stamp for each device owned or transfered. The tax stamp is acquired in the registration process and requires specific paperwork. This paperwork referred to as a form 4 or form 1 typically requires a signature of local law enforcement, fingerprints and a payment of the $200 tax. Later the tax on 'any other weapons was changed to $5. The tax is payable at manufacture and each time the NFA device changes ownership except when it is inherited or a dealer acquires the device.

The NFA also required serial numbers on firearms and made it unlawful to alter them. The process had the effect of registering all manufacturers, importers, and dealers.

In 1986, the Firearm Owners Protection Act made the manufacture of new machine guns for the non-government agencies illegal. Machine guns manufactured prior to 1986 can continue to be bought and sold. The limited supply of these devices has cause the prices to rise on a yearly basis.

Currently the National Firearms Act is administered by the National Firearms Act Branch of the BATFE or the ATF as it is often referred to.

The National Firearms Act (NFA) Handbook is available to download.

The NFA Handbook is not available in a printed version any more You may download the entire book (9MB) or its individual chapters

Chapters:
• Chapter 1 - Introduction
• Chapter 2 - What Are "Firearms" Under the NFA?
• Chapter 3 - Registration of NFA Firearms
• Chapter 4 - Taxes Imposed by the NFA
• Chapter 5 - Qualifying to Do Business in NFA Firearms
• Chapter 6 - Making NFA Firearms By Nonlicensees
• Chapter 7 - Manufacturing NFA Firearms
• Chapter 8 - Importing NFA Firearms
• Chapter 9 - Transfers of NFA Firearms
• Chapter 10 - Collectors of NFA Firearms
• Chapter 11 - Exportation of NFA Firearms
• Chapter 12 - Recordkeeping
• Chapter 13 - Required Reports and Notifications to ATF
• Chapter 14 - Going Out of Business
• Chapter 15 - Penalties and Sanctions


Appendices -
• Appendix A (NFA, 26 U.S.C. Chapter 53)
• Appendix B (Rulings and ATF Articles)
• Appendix C (ATF Forms)
• Appendix D (Sample Form Letters)