December 9, 2012

Form 1 and Form 4 Wait Times expected to decrease

atf-logo.jpgATF hires 9 new examiners. Last week, the NFATCA posted an article that the DOJ lifted the hiring ban for the BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) and the ATF hired 9 new examiners.

This should significantly speed up the approval process for the purchase or manufacture of firearms restricted by the National Firearms Act. The new staff at the ATF who examine the requests for transfer ( ATF Form 4) and the requests to manufacture (ATF Form 1) should be around 30 which is almost triple the number just a few months ago when expected approval times were in excess of 6 months. We do not know if this will bring times down to 2-3 months but it seems reasonable.

November 24, 2012

ATF says 07 Manufactures must comply with ITAR

We have been telling 07 Manufactures for almost a year that they need to comply with ITAR even if they do not export anything. Now the according to Joshua Prince with the Prince Law Firm, In the November 2012 newsletter ATF has declared that all 07's must register with the DDTC unless the DDTC specifically exempts them. The penalties are huge and include 20 years in prison and 1 million in fines among other civil penalties per violation.

So what ever your reason for not registering even if ATF previously told you not to, you need to register and register soon. If you need help with this please Contact Us and we will be happy to get you in touch with someone who can help you do this correctly.

November 15, 2012

When is a Gun Trust not a Gun Trust?

Recently we have begun to see many "Gun Trusts" that are nothing more than a traditional revocable trust with a few provisions that mention firearms or NFA firearms. As the creator of the NFA Gun Trust, we feel that we are entitled to define what is and what is not a Gun Trust. Here are a few of the more common issues we see with regular or other so-called "Gun Trusts":


  • A gun trust should be a document which deals with regular as well as NFA firearms.

  • It should not contain language that instructs people to violate the law if they follow the instructions contained in the trust and should not allow for someone who is a prohibited person to become or remain an authorized user of the firearms.

  • It should deal with incapacity and death in a manner designed for firearms.

  • A real Gun Trust or NFA Gun Trust should be designed to protect individuals, their families and their friends from issues of constructive possession and guide them on the legal ways to purchase, use, transfer, and distribute all firearms.

  • In addition, a Gun Trust should not require the sale of firearms to pay income should you become incapacitated - unless necessary.


Perhaps the best way to see if you have a real "Gun Trust" or not is to look for the "Gun Trust Lawyer®" registered trademark or that it was copyrighted by David Goldman. If you have a gun trust that does not contain these markings, and you would like it reviewed free of charge for compliance with federal issues, Contact Us and we would be happy to review the document with you.

November 8, 2012

Should I put my regular firearms in a NFA Trust or Gun Trust?

A Gun Trust should be designed to hold all firearms including those restricted by the NFA. All of our Gun Trusts are designed for all of your firearms. As an owner of all types of guns, I designed this trust to deal with issues from a revolver, to a Glock pistol, and even NFA firearms like silencers and machine guns.

What most people do not realize is that many of the same issues regarding transfer upon death or incapacity exist for regular firearms as well as those sold by Class 3 SOT dealers. It is for this reason that I would suggest putting all of your Guns in one of our NFA Gun Trusts.

The real issue is that while we can pick beneficiaries while we are alive, we do not know who will survive us or anything about them on the date of our death.

We do not know where they will live; in some states regular firearms are highly restricted or prohibited by law. Will some or all of our guns will be permitted in the state where each beneficiary will live at the time of our death?

The legal status of our beneficiaries. Have our kids or friends done something silly that we do not know about that might have caused the beneficiaries to lose their rights to own, possess, or use a gun. Are they involved with drugs in a state where it is legal? While legal in some states, it is still a federal crime and would make a person using illegal drugs (at the federal or state level) a prohibited person. Another issue might involve being charged with an act of domestic violence or child abuse even if not ultimately convicted of the charge. The Lautenberg amendment is a federal statute that says that certain actions by you or your attorney on your behalf that are associated with charges which are classified as domestic violence or child abuse can cause a permanent loss of your firearms rights.

Most importantly, as much as we would like to believe that our beneficiaries will be the right age and have the right mental state when we die, we will not be there to make the decision. Our Gun Trust takes all of this into consideration and allows the successor Trustee to look at the age, make sure they are old enough and of the right frame of mind. Other trusts only require that someone is not determined to be legally incompetent. With firearms this is not enough, someone can be legally sane, but not the person you would want to hand a gun. People change over time, and it is not always for the better.

Our Gun Trust allows all of these issues to be considered and then a decision can be made or the decision can be to wait an addition period of time and reevaluate the beneficiary.

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.

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