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
Another huge benefit of using a properly designed gun trust is that you can maintain your privacy. While NICS checks are being done in most cases on NFA firearms, they are only being done on the person who is involved with the transaction in much the same way as they are with a Corporation or LLC. A properly prepared Gun Trust will not allow a prohibited person to be a valid trustee of the trust and any actions they take are void as if they never took place.
Still there are many people that are very concerned about their privacy and do not want their finger prints or photos sent along with a Form 4 or Form 1 application. A gun trust can be structured in such a way as to allow for the complete privacy of those who would otherwise be hesitant to purchase Title II firearms because of a loss of privacy that some believe attached with such transactions.
(NOTE - A GUN TRUST SHOULD NEVER BE USED BY A PROHIBITED PERSON, AND OUR GUN TRUST CAN NOT BE USED TO MAKE A PROHIBITED PERSON A TRUSTEE)
Now the FBI has started to gather additional information on some NICS checks. While this is only in some cases at this point, there is no reason they could not start to collect the information in all transactions in the future.
As of May 5th, it appears that if you are denied for a NICS check, the FBI will request additional information on yourself from the gun store or FFL.
They are requesting the following information:
1 The denied individual's address
2 Whether the transaction was conducted at a gun show?
3 If the transaction was at a gun show, they want the city and state where the gun show took place.
The NICS Section has deployed a website for customers wishing to appeal a denied transaction or submit a VAF application on a delayed transaction. Previous appeal e-mail firstname.lastname@example.org and email@example.com no longer be accepting appeal requests. All electronically submitted appeal requests must be made through the NICS Appeal website at http://www.fbi.gov/nics. The NICS appellant or VAF applicant will need to follow the step-by-step instructions on how to submit an appeal or VAF request. An Appeal or VAF Request Form must be completed with all mandatory fields filled in prior to being able to print or electronically submit the request.
In the same update the NICS section also reminded FFL's that if they move, they need to update two agencies ATF licensing at 866-662-2750 and the NICS Section's Customer Service at 877-FBI-NICS (option 2).
As with regular firearms, some Type II firearms (those sold by class 3 dealers) can only be sold to residents of their state, others can be sold to residents of neighboring states. If an item is not legal in your state but is in another state where you would like to purchase it, a Gun Trust may help with this issue. With a Gun trust, you can solve this problem by including someone who is a resident of the other state as a Trustee of your Gun Trust. Any Trustee on your Gun Trust with the power to make purchases, can purchases the items as long as the person who is picking them up is complying with that state's laws. Once the Gun Trust owns the items, any Trustee, with the power to use the items can manage them and store them where they want, as long as it the items are legal to possess in the state. A trust also has the benefit of being able to be modified in the future so you can add or remove a trustee (authorized purchaser or user).
One benefit of using a Gun Trust that is often overlooked is the ease of changing authorized users or managers of the firearms in the event of a charge relating to domestic violence or other Lautenberg amendment violations. We all know people who have been involved in a divorce and had claims of domestic violence or child abuse made to potentially bolster the other spouse's position regarding the divorce, alimony, child custody, or child support. Unfortunately, the way in which your divorce attorney deals with this issue, could cause you to lose your firearms rights. It is very important to make sure your divorce attorney understands these issues or consults with an attorney who does so that you do not lose your rights over a technicality.
More importantly, if you do lose your rights, you may lose your investment in your firearms as they may not be transferable in time to lose them to a confiscation. With a Gun Trust, even though you can be a manager, you do not technically own them. Therefore, if you lose your rights to own or possess firearms, we simply need to amend your trust to deal with the possession issue as you are no longer the owner anyway.
This becomes much more important with Title II firearms (those sold by Class III Dealers) because of the time it takes to transfer these firearms. For more on this you may want to read the Jacksonville Divorce Attorney Blog's article on Domestic Violence and Gun Rights written by Kelley Ryan a Jacksonville Divorce Lawyer.
I was talking with my wife this weekend and we were discussing things we wanted to change in the upcoming year. While it was not really a New Years Resolutions our topic of conversation drifted to shoes and guns, while my wife thought I had to many guns, I thought she had to many shoes. Of course neither of us could come to an agreement, but we did agree that if she got more shoes, I could get an equal number of guns. Still thinking she had to many shoes, I hope she doubles the size of her collection this year. Not sure if this will work with anyone else, but it seems to be worth a try.
Hope everyone has a Happy New Year and my wife buys a lot of shoes.
P.S. if you have any extra 6.5 woman's shoes please send them as used guns seem like they would be part of the deal.
Today, the ATF revised it's definition of State of Residence and residency requirements.
The Gun Control Act (GCA) generally prohibits any person from transferring firearms to any unlicensed person who they know or have reasonable cause to believe does not reside in the State in which the transferor resides. See 18 U.S.C. § 922(a)(5).
27 C.F.R. 478.11 defines the term "State of residence" differently for U.S. citizens and aliens. A U.S. citizen's State of residence is the State in which he or she is present with the intention of making a home; while an alien is considered a resident of a State if he or she has resided in that State for a period of at least 90 days prior to the date of transfer with the intention of making a home.
Federal firearms licensees (FFLs) were previously required to obtain documentation establishing that an alien legally in the United States has resided in the State continuously for at least 90 days prior to the transfer of the firearm. See Question 20c of the Firearms Transaction Record, ATF Form 4473.
The DOJ recently concluded that, as a matter of law, applying a more stringent State residency requirement for aliens legally present in the U.S. than for U.S. citizens is incompatible with the language of the GCA. As a result, ATF will be revising the regulations in 27 C.F.R. Part 478 to conform to the DOJ's conclusions by removing the separate 90-day residency requirement for aliens. Once the regulations have been revised, both U.S. citizens and aliens legally present in the U.S. will be subject to the same requirements for State residency and proof of residency. ATF is in the process of amending its forms to conform to the statute as well.
Until process is complete, the current regulations have the force of law and for the time being, FFLs should continue to use the current forms and abide by the current regulations.
12 Laws of Christmas - Day 4 Gun Trust $100 off
Interested in a Gun Trust or one of our new Asset Protection Gun Trusts? This special is for today only. If you Contact Us by email or telephone today, we will knock $100 off the price of your Gun Trust. To learn more about what a Gun Trust is visit the Gun Trust Lawyer® Blog If you Contact Us after hours on Dec
The Law Office of David M. Goldman PLLC has decided to do 12 great specials for our new and existing clients.
If you want to be the first to find out about the special offers by the Law Office of David M. Goldman PLLC for the remaining 12 Laws of Christmas, be sure to check this blog daily or subscribe to our blog updates.
New Gun Trust Provides Asset Protection for Firearms Collectors and his or her Family.
Until now, the answer has been that a gun trust does not provide any asset protection for firearms. Today we are announcing a new form of Gun Trust for the Gun Collector that does provide asset protection from creditors of the creator as well as the beneficiaries. This trust has many of the same benefits of our normal Gun Trust and we can even convert your previous gun trust to a new asset protection gun trust.
This trust is not designed for everyone but should be considered if you have a substantial firearms collection.
There have been many question on converting a pistol to a rifle and back to a pistol. The ATF recently issued a ruling regarding this to help clarify what is permitted and what is not. If you would like to read the full ruling it can be found here. ATF Ruling 2011-4.pdf
In summary the ATF made the following findings.
Held, a firearm, as defined by the National Firearms Act (NFA), 26 U.S.C. 5845(a)(3), is made when un-assembled parts are placed in close proximity in such a way that they:
(a) Serve no useful purpose other than to make a rifle having a barrel or barrels of less than 16 inches in length (e.g., a receiver, an attachable shoulder stock, and barrel of less than 16 inches in length); or
(b) Convert a complete weapon into such an NFA firearm, including - (1) A pistol and attachable shoulder stock; and (2) A rifle with a barrel of 16 inches or more in length, and an attachable barrel of less than 16 inches in length.
Such weapons must be registered and are subject to all requirements of the NFA.
Held further, a firearm, as defined by 26 U.S.C. 5845(a)(3) and (a)(4), is not made when parts in a kit that were originally designed to be configured as both a pistol and a rifle are assembled or re-assembled in a configuration not regulated under the NFA (e.g., as a pistol, or a rifle with a barrel of 16 inches or more in length).
Held further, a firearm, as defined by 26 U.S.C. 5845(a)(3) and (a)(4), is not made when a pistol is attached to a part or parts designed to convert the pistol into a rifle with a barrel of 16 inches or more in length, and the parts are later un-assembled in a configuration not regulated under the NFA (e.g., as a pistol).
Held further, a firearm, as defined by 26 U.S.C. 5845(a)(4), is made when a handgun or other weapon with an overall length of less than 26 inches, or a barrel or barrels of less than 16 inches in length, is assembled or produced from a weapon originally assembled or produced only as a rifle. Such weapons must be registered and are subject to all requirements of the NFA.
The Scottsdale Gun Club is inviting families and their children to pose for pictures with Santa Claus - and a high-powered firearm. The photos are $5 for club members and $10 for non-members. Their website states "Santa's Back With His Bag Of Goodies. Get Your Holiday Picture With Santa & His Machine Guns!"
- Additional co-owners;
- Additional authorized users;
- Protection from constructive possession;
- Protection of the firearms from loss of firearms rights;
- Estate Planning and transfer upon death issues related to guns; and