October 24, 2012

Police Officer Pleads Guilty to having Silencer in NY

Thumbnail image for silencer_map.gifIt appears that a former deputy in NY had some firearms that had been previously seized by the police in his personal possession even though they were suppose to be destroyed. One of the items in his possession was a silencer. While it appears that active duty police are permitted to have silencers, once they are no longer a police officer they cannot possess them. The specific details on how he received the silencer are not know, but even if he legally possessed it, once he was no longer a police officer his possession in NY would be in violation of the law.

We are often contacted by NY police officers wanting to set up gun trusts to buy silencers in NY and generally advise against it because of the risks of separation from the police and the consequences. Some police officers form trusts and buy and keep NFA firearms in other states where they are legal but it is risky to bring them to NY.

September 25, 2012

Can an Alien purchase NFA firearms with a Gun Trust?

Aliens who are legally in the United States can purchase NFA firearms as long as they are not a prohibited person. When doing so they often have confusion over how to fill out a 5330.20 when it asks if they are a non-immigrant Alien in question 5. The following definition may help answer the question in your particular circumstances.

Under 8 USCS § 1101 a non-immigrant alien is defined as "an alien having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country." Rowland v. Marshall, 650 F.2d 28, 29 (4th Cir. Va. 1981)

September 19, 2012

More Invalid Gun Trusts being provided by Gun Stores

Today we received another copy of a Gun Store Generic NFA Trust that was provided to a customer of the shop. Not only was it a generic trust and did nothing to advise or protect the client from issues regarding the transfer, ownership, possession or use of TItle II firearms (sold by Class 3 dealers) but the trust itself was invalid as it did not comply with the requirements to create a valid trust in the State. While it may have been a valid trust in another state, each state has its own requirements for creating a valid trust. These requirements change and a trust that may have been valid a few years ago may not be valid under the current laws of the state. It is important to make sure your trust complies with the state's requirements for creation of a valid trust. What is disturbing is that ATF approved transfers to this invalid trust.

Remember just because ATF approves a transfer, the agency is not stating that your trust is valid nor that you are legally able to be in possession of the firearms. If you have a free trust or a gun shop trust it is important to have it reviewed for legality as well as compliance with the ATF to make sure your document is valid and that your document does not instruct you or others to break the law in regards to regular firearms or those restricted by the NFA.

September 7, 2012

How long should my Gun Trust Last? Controlling your Guns from the Grave.

One of the benefits of a gun trust is that it can be created by a Gun Trust Lawyer® to last throughout your life or in some cases can be designed to last for generations. Trusts are subject to the Rule Against perpetuity (RAP) which may limit how long the trust can last.

The common law RAP was designed to keep people from controlling from their grave. Today the modern trend it to extend or eliminate this restriction and many states like Alaska, Idaho, New Jersey, Pennsylvania, Kentucky, and South Dakota have abolished the RAP by statutes.

In addition, 26 States (Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Indiana, Kansas, Massachusetts, Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oregon, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia), the District of Columbia, and the U.S. Virgin Islands, and is currently under consideration in New York) have enacted the Uniform Statutory Rule Against perpetuity which extends the time your trust can control from 21 years after the death of a life in being at the time it was created to 90 years of creation if it actually vests.

In addition other states have made additional changes to extend the vesting period for Trusts. Two such examples are Florida at 360 years and Arizona at 500 years.

So even if you live in a state that has a short RAP there may be a benefit in extending the life of the trust by changing the jurisdiction of your trust to another state.

This is a common technique used with our Multi Generational Asset Protection Gun Trust to allow children, grandchildren, great-grandchildren and beyond to use and have access to the firearms without risking their loss to creditors.

September 5, 2012

Wyoming Bill Proposes Legalizing Hunting With SIlencers

While the Bill would legalize hunting with silencers, the bill also includes stiffer penalties for poaching while using a silencer. Most legislation regarding silencers has been based on anti-poaching concepts. The NRA and the American Silencer Association have done a good job at helping to pass similar bills in other states over the past few years. Anyone who has used a silencer knows that a suppressor is a better name and that unlike they are shown in the movies, a suppressor does not make a firearm silent.

The modern trend is to make silencers legal to use while hunting.

August 20, 2012

Revised: Are SBR's legal in Illinois?

Starting January 1, 2013 you will be able to purchase, transfer, make, possess, and use a SBR in IL. At first glance it appears to be very limited and only apply those with a valid and active military re-enacting group membership to use them for military re-enacting. But there is an interesting exception, those with a Valid C & R license can also own them.

The Law is poorly written and leaves many questions unanswered. A Gun Trust cannot have a C&R license, but a Trustee of a Gun Trust Can have a C&R license. The question is will ATF allow a Trust to purchase a SBR if all Illinois based Trustee's (the authorized users) have a C & R License as required under IL law. If not you will still need a CLEO sign off because you can't have a C&R within a Trust.  ATF has stated that a Trust cannot own an SBR in IL (2014). 

Also, once you modify a C&R firearm it no longer retains its C&R status, but the Illinois law is different than similar laws in CA because if you have a C&R license, you can buy any SBR not just a C&R SBR.

In Summary, SBR's are legal in IL if you have a C&R regardless of whether the SBR is an SBR. It appears based on Documents received by the ATF that a Trust or Gun Trust may not own an SBR in IL.

August 13, 2012

ABA Seeks Nominations for Blawg 100 - Support requested

vote.jpgDear Reader,

The American Bar Association is working on the list of the 100 best legal blogs.

If you enjoy this blog, I would appreciate your support by completing a very short form.

Thanks for your support,

David

August 13, 2012

Legal Silencers in Illegal Locations

Silencer-map.jpgWhile a Gun Trust or other forms of ownership can allow you to purchase Silencers or other Title II firearms in states where they are legal, it is important to realize that just because you or a trust own a Silencer or other Title II firearm, you do not have the ability to take those items to states where they are illegal to possess.

For example silencers are not legal to purchase, own, transfer, or use in Illinois. Recently an individual was arrested for threatening police and possession of an illegal silencer. The silencer may have been legally purchased but its presence in Illinois is a crime and will make the silencer illegal.

While it sounds like Gali, the individual with the illegal silencer, is in a lot of trouble, the additional penalties for possession of a silencer could add up to more than 10 years in jail and a $250,000 penalty plus seizure of the vessel (his car) that the illegal silencer was found in.

While most states have legalized the possession and use of silencers there are a few states where they are not legal. This silencer may have belonged to someone else or purchased without paying the required transfer fee of $200. Because all silencers are registered with the BATFE, the legal owner of the silencer could also find himself in trouble for the improper transfer of a silencer which has the same penalties discussed above.

One of the big downsides to purchasing a silencer as an individual is that you are the only one who can have access to and use the silencer. A Gun Trust can help you by allowing people to use or be in possession of the silencer without breaking the law. It is important to remember that a Gun Trust does not allow you or others to bring otherwise legal firearms into a state where they are not permitted.

One way to protect yourself from the actions of others in regards to using a Gun Trust to purchase NFA firearms is to make sure that the other authorized users do not have the ability to make purchases without your permission. Many traditional trusts and some Gun Trusts are not designed to help with the potential unknown violations by others involved with your Gun Trust. If your gun trust contains the Gun Trust Lawyer registered trademark then your trust will have been setup to deal with these issues by giving you the flexibility to create users who cannot purchase and users that can purchase Title II firearms.

August 1, 2012

Form 4 Wait times expected to decrease

atf-logo.jpgThe ATF told attendees at the NSSF Import/Export conference that they had hired 12 temporary research assistants and a supervisor to review Form 4 and Form 1 applications for mistakes before the examiner gets them. (Reported by Joshua Prince at the Prince Law Firm a PA Gun Trust Attorney)

Back in April the backlog on Form 1 and Form 4 transfers was around 43000. The additional staff has almost doubled the number of transfers per month that the agency can handle. The ATF is also asking Congress to use part of the revenue generated to help update their antiquated systems as currently the taxes collected from the Form 4 and Form 1 applications is deposited into the Treasury's account where the ATF has no access.

Apparently if a FFL submits a Form 1 or Form 4, their applications are put in a special folder for special processing because the background of the FFL has already been checked.

July 27, 2012

Great Review of 300 AAC Blackout with Silencer

July 27, 2012

U.S Does Not Sign UN Arms Treaty

UPDATE FOX news is the first major network to confirm this story we began discussing over 8 hours ago.

unarms.jpegI received numerous emails about the UN Treaty not being approved. The Examiner and TheGunMag.com have also reported that It was announced this morning that the US will not sign the UN Arms Treaty in its current form. While it is possible that a modified treaty could be singed at a later time it appears that the intense public awareness of the restrictions on our Second Amendment rights has cause such outreach by firearms rights supporters that the Treaty will not be signed in its present form.

As of this afternoon, I am seeing no major media outlets reporting this fact and some even alluding that it will still be passed. Will it be passed or not? We will know if a few days. Below I have complied a few sources on the story and even read through the proposed treaty which I found to be very circular and while supporting gun rights of states, would appear to require states (countries) to pass laws that would not permit misdirection or misuse of firearms by others. How else can you do this other than to ban certain small arms.

Even if this issue fails to pass this week, I am certain that we will see this issue again.

Update GunMag.com is also reporting that Alan Gotlieb who is at the United Nations in NY said the government will not sign the document.

The Seattle Times is reporting that the U.N. Treaty is unlikely to curb U.S. gun Rights. If passed this article appears to be an effort to distract from the true nature of the Bill. A misleading article at best.

The UN has a history of pursuing disarmament including firearms owned by individuals. While the text appears to talk about gun rights, it talks about them in terms of the states rights or collective self-defense rights and not at the individual level as we have under the Second Amendment. The UN has described its efforts on their own website as wanting to advance the restrictions and availability of ownership of small arms by the individual and destruction of surplus state (government-owned) weapons.

The Preamble states "Underlining the need to prevent, combat and eradicate the illicit trade of conventional arms and to prevent their diversion to illegal and unauthorized end use, such as terrorism and organized crime."


The Principles
The inherent rights of all States to individual or collective self-defense;
(NOTE these are rights of the state and not the individual)

Goals and objectives include avoiding international trade in arms. While this treaty would apply to larger arms like ships, tanks, aircraft, it would also apply to small arms and light weapons.

Each country would be required to create a national control system (registry) and would prohibit the transfers what would violate the treaty, would be a violation if they the arms were eventually transferred to an inappropriate personal or country, or were used for genocide, crimes against humanity, war crimes...

The UN document is similar to many UN treaties and appears to be so circular in nature that while allowing legal uses and each state to make their own rules, seem to restrict the rules that can be made by agreeing that no states (country) rules would possibly allow for an illegal or improper use of the arms to be regulated.

Basically you can't own an AR15 because someone might sell one to a drug cartel that might do something wrong with the firearm. As such those firearms would not longer be permitted to be sold. This type of circular logic would have no end and surly end up eliminating all or most future firearms transactions.

If the treaty is signed what will happen? The treaty would go into force until the Senate voted to approve or deny the treaty. It would take 66% of the senators (67 Votes to Approve it). While this may be a problem, a Signed treat would be enforced until it was brought up for a vote. Some questions whether there would be enough senators to bring the treaty up on a vote.

Does anyone really think that laws keep criminals and terrorist from obtaining firearms?
To read a copy of the UN Treaty read the rest of this article.

Continue reading "U.S Does Not Sign UN Arms Treaty" »

July 25, 2012

Free NFA Gun Trust found to be invalid

atf-logo.jpgThis week I have received two trusts from potential clients who sent them in for review that were invalid. Even if ATF approved a Form 1 or Form 4 transfer to these trusts, anyone in possession of the TItle II firearms would be illegally in possession of them. Once person already had 3 items in their possession and 2 more on the way.

Both trusts claimed to be gun trusts but were obviously not intended for firearms much less those subject to the NFA and contained many of the traditional language found in a trust designed for managing financial assets.

While in some ways the language seemed to be slightly better than a Quicken trust (except for the fatal flaws that made them defective) they only briefly mentioned the NFA or guns in the trust and gave no guidance based on state or federal restrictions of firearms based on the geography of the transfer or the legal status of the people involved with the trust or whether the beneficiary was legally able to be in possession of the firearms based on the unknown circumstances of the future. While all of this may sound complicated, a real Gun Trust like one provided by a Gun Trust Lawyer® will deal with all of these issues and more.

Our trusts have been reviewed by hundreds of estate planning and firearms lawyers. If you have a "free gun trust", "Gun Store Trust" or trust that you are concerned may not protect your and your family, send it to us and we will review it and let you know what type of problems you may face. Normally we charge for reviewing other trusts, but for the next 30 days we will review them free of charge under the federal laws.

Some common things to be concerned about.
1) I got my trust off the internet
2) your trust references laws of another state
3) your trust is less than 15 pages
4) your trust did not come with a detailed manual on how to make purchases or who can use the items
5) your trust does not contain the Registered trademark Gun Trust Lawyer®

July 17, 2012

Sheriff will not sign Form 4's: Recommends using NFA Gun Trust

St.johns_sheriff.jpgRecently I was interviewed by Sheldon Gardner of the St. Augustine Record regarding an article about the sheriff deciding not to sign Form 4's for TItle II transfers: Want to buy a silencer, sawed-off shotgun or explosives? Sheriff will no longer help.

While sheriffs all over the country are refusing to provide the CLEO sign off required for individual ownership of Title II firearms using ATF Form 4's and ATF Form 1's, the St. Johns Sheriff is one of the few who does not appear to be trying to stop ownership. The Sheriff's office is recommending using a NFA Gun Trust. Sgt. Chuck Mulligan stated that "In no way shape or form is the sheriff stopping them or hindering them from buying these items."

As Gun Trust Lawyers®, we have provided many residents of St. Johns count and residents of almost every state Gun Trusts to help them protect their privacy, avoid the CLEO and fingerprint requirements, and help manage their NFA and regular firearms during their life and upon their passing. Many police officers in these areas have also used our NFA Gun Trusts to acquire Title II firearms for personal and work related use.

Many initially appeared outraged by the Sheriff's position but if you read the full quote it is clear they are recommending a gun trust. Below is the full Facebook posting:

The National Firearms Act (NFA) of 1936 has been the primary source of federal regulation for "class 3" weapons such as automatic firearms, silencers, short-barreled shotguns and explosives. While owning a firearm is a fundamental right for a United States citizen and is recognized by the 2nd Amendment of the United States Constitution, the Sheriff will only participate in the application process when a St. Johns County resident is applying for ownership of an automatic weapon. While the Sheriff has participated in this process in the past, he will no longer consider an application for silencers, short-barreled shotguns, explosives, etc.

Alternatively, a citizen may create what is commonly referred to as a "NFA Gun Trust" where the possession of prohibited NFA weapons (class 3) may be obtained. Although this is a legal instrument which must be properly drafted to be valid, there is no requirement for the Sheriff to participate in the application process. While the Sheriff's Office cannot offer or provide any advice on creating such a trust, I would invite you to utilize the many associations and/or lawyers that specialize in 2nd Amendment issues.


There are many advantages to using a NFA Gun Trust and the CLEO signature is one of the least significant. A property prepared trust should be designed to hold all of your firearms and deal with issues in different states as well as guide you on the proper way to purchase and use the firearms.

July 17, 2012

What is a NFA Trust or Gun Trust?

WHAT IS AN NFA GUN TRUST?

NFA firearms (also called NFA weapons) are certain guns and accessories regulated by the National Firearms Act. They are sometimes incorrectly called "Class 3 weapons." The confusion over the Class 3 terms is related to the licence that is required for a dealer to possess to sell Title II Firearms. NFA firearms include all fully automatic and select fire weapons, short-barreled rifles and shotguns and sound suppressors (silencers). NFA firearms include things that you might not expect.

Example: Remember the Hi-Standard .22 Derringer It is an ordinary "garden variety" pistol. Pair it with a wallet holster and it becomes an NFA weapon. Many collectibles, including pistols with detachable shoulder stocks, such as the Artillery Luger and the "Broomhandle" Mauser are also regulated by the National Firearms Act.

Suppose that your father brought home a "deactivated" machine gun from World War II? Even though these "Deactivated War Trophies" are welded up and are incapable of firing, they are still NFA weapons.

broom.jpg

You can lawfully own NFA firearms, as long as they are permitted under state law. You have to register them with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("BATFE") and pay a $200 tax on each one. Unless you acquire them through a trust or other entity, you have to obtain the consent of your chief of police. If you create a special type of trust, no local approval is required. These trusts have other significant advantages as well.

An NFA Gun Trust, sometimes called a "Gun Trust" or a "Class 3 Trust" is a type of revocable trust that you create specifically to acquire NFA weapons and to hold your other firearms. It differs substantially from an "ordinary" revocable trust.

An NFA Gun Trust makes it easier and more private to transfer not only NFA firearms, but any guns, to your family members if you die or become disabled. Assets in a trust pass directly to your beneficiaries outside of the probate system. There is no public record of what you own.

An NFA Gun trust can be an irrevocable or revocable, but an "ordinary" estate planning trusts should not be used to acquire and hold NFA firearms. NFA trusts must have special provisions that deal with firearms.

Example: You want your twelve-year-old child to someday inherit your gun collection, including NFA weapons. An NFA trust provides a way to lawfully store them until your child is old enough to have them transferred to him or her.

We have lawyers in every state that we work with who have modified our trusts for your state's specific law. The local attorneys deal with state trust and firearms issues and we are here to support you with the federal issues and the NFA.

Our NFA trusts contain language which deals with unique provisions of each state's law. In addition to the Gun Trust documents, we provide you with detailed, plain English instructions showing you how to fund the trust, acquire NFA weapons as a trustee and administer the trust.

WHY DO I NEED AN NFA TRUST?

No Signature Required

In order for an individual to lawfully acquire an NFA weapon, his or her CLEO - police chief or first selectman must sign a form called a "BATFE Form 4." Many CLEO's are reluctant, or refuse, to sign the form either for political reasons or concern about potential liability. If your chief refuses to sign, and you do not have an NFA trust, you will not be allowed to purchase any NFA weapons.

Continue reading "What is a NFA Trust or Gun Trust?" »

July 14, 2012

Do I Need a Class 3 License to Buy a Silencer?

A Class 3 license is a license that a dealer obtains to sell Title II Firearms. Many individuals incorrectly confuse the terms Class 3 and Title II. We even see some lawyers making the same mistake. Class 3 SOT is a license to sell. Title II is classification of firearm that a Class 3 SOT may sell.

Title II firearms include silencers, short barrel rifles or shotguns, machine guns, AOWs and destructive devices.

So the answer is no! You do not need a Class 3 license to buy a silencer or other Title II firearm unless you are a dealer and wanting to purchase them for resale. If your documents do not use the correct terms, the people who wrote them may not understand the NFA, ATF and issues relating to the purchase, possession, transfer, and use of Title II firearms.

A real Gun Trust like one created by one of our Gun Trust Lawyers® can easily be recognized because it will be protected by our Trademarks and Copyrights.