Recently in Illinois - Gun Trust Lawyer Category

July 1, 2013

Transferring firearms to a Gun Trust without Criminal Sanctions

As more lawyers begin to dabble with Gun Trusts we are seeing many who do not understand firearms and their unique nature which can often involve criminal penalties related to the improper transfer, possession, and use related to firearms or ammunition.

While it is fine to transfer a pair or sox, coins, most personal property to your trust without doing anything other than assigning it, the transfer of restricted items like firearms or ammunition is a different matter. If you can sell a gun to an individual in your state without going through a dealer you should be able to transfer a firearm to your trust without going through dealer. This is the case in most states.

In a few states like California, Colorado, Connecticut, DC, Illinois, Iowa, Maryland, Rhode Island, Massachusetts, Michigan, Nebraska, New Jersey, New York, North Carolina, and Pennsylvania where all personal transfers of some or all firearms must go through a background check, there may be no exception for transferring a firearm to a trust even if it is your own trust. Sure an argument could be made that there is no transfer and as such you should not have to go through a dealer, but why would one take the risk.

Several lawyers in California have recently been having discussions over such a topic. They even suggest that a transfer to a joint trust could be problematic because there are multiple owners. While a Gun Trust with multiple owners can be problematic, it is not for this reason.

In order to be valid, a Gun Trust must be funded, which involves transferring some property into the trust. The discussion between several California lawyers introduces an interesting question: Would it violate the California statute if you owned a firearm separately from you spouse, and then tried to transfer the firearm into a trust that named your spouse as a co-trustee or co-settlor?

While several of the lawyers point out, certain transfers are exempt under the statute. The exempt transfers in California include transfers between members of the same immediate family, including spouses. The transfer of a grantor's property to himself, as trustee of his own trust, is not considered a transfer. So, a couple that jointly owns a firearm, and transfers that firearm into a trust that names both parties as co-settlors, would not really be a "transfer." This is really just a declaration of trust.

On the other hand, as the discussion continues, a firearm owned separately by one spouse would have to be transmuted to community property before it could be transferred to a trust with co-settlors in order to comply with the statute.

While California may have such exemptions involving trusts it is not clear how they apply to firearms or if the legislative intent of the laws may change the interpretation of transfers to a trust when dealing with the transfer of firearms. This is why in jurisdictions where private transfers are required to go through a dealer, we always recommend doing so in order to comply with governing statutes. It is better to be safe than sorry.

One exception might be where someone owned a pre ban firearm as an individual and wants to put the pre ban firearm in their trust to maintain ownership and possession where it would not otherwise be permitted. This situation might justify the expense necessary for a proper determination on the subject. For most people, the relatively minor cost of using a dealer to transfer a firearm makes the decision easy.

Additionally experienced Gun Trust Lawyers® know that firearms rights are very important to our clients. They do not want others who may be involved with the trust to be able to take away the firearms or their ability to use them. It is for this reason that we draft our trusts with special powers for the Settlor. It is foreseeable that a multi-settlor trust could create a conflict of interest amongst your clients.

While we have stated many times that any valid trust can purchase or own firearms, it is issues like these that make it clear that a regular trust should not be used to purchase Title I or Title II firearms. If you are married, or live in a state that have many restrictions on firearms, legal support by a local Gun Trust Lawyer® is important. You will also find that the experience of the lawyer in dealing with Gun Trusts is important.

We have been drafting Gun Trusts for 6 years and have drafted over 5000 Gun Trusts across the United States. If you would like more information on a Gun Trust in your state, just fill out the contact us form on this website and we will send a free report on Gun Trusts.

February 22, 2013

Huge Win for Gun Rights in Illinois

The Second Amendment Foundation today won a significant victory for concealed carry when the Seventh Circuit Court of Appeals let stand a December ruling by a three-judge panel of the court that forces Illinois to adopt a concealed carry law, thus affirming that the right to bear arms exists outside the home.

Continue reading "Huge Win for Gun Rights in Illinois" »

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 understand 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.

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. Can you use a Trust? That's up in the air at this time. You should be able to if every Trustee in the state has a C&R but we do not know what the ATF's position will be.

June 28, 2010

McDonald v Chicago: Supreme Court Reversed and Remanded Case

The Supreme Court has ruled today in an opinion by Judge Alito that the 2nd Amendment applies to the states through the 14th. More to come later. If you want to read the decision it's posted on the Supreme Court Website - McDonald v. Chicago or from our website McDonald_v_Chicago.pdf

February 9, 2009

Where are Assault Weapons Banned Today

AR15sbrsilencer.jpgWith the recent discussions about the potential federal ban on assault weapons being reinstated,  I thought it would be interesting to see which states already have bans on Assault Weapons

California bans "assault weapons", .50BMG caliber firearms, some .50 caliber ammunition and "unsafe handguns."

Connecticut  Bans "assault weapons" as well as select fire machine guns.

District of Columbia prohibits new acquisition of handguns and any semi-automatic firearm capable of using a detachable ammunition magazine of more than 12 rounds capacity and any handgun not registered after February 5, 1977  (parts recently ruled unconstitutional).

Hawaii prohibits "assault pistols."  Assault rifles and shotguns are restricted the same regular rifles and shotguns

Illinois: Chicago, Evanston, Oak Park, Morton Grove, Winnetka, Wilmette, and Highland Park prohibit handguns; some cities prohibit other kinds of firearms.  Firearms identification card is required.

Maryland prohibits "assault pistols"; the sale or manufacture of any handgun manufactured after Jan. 1, 1985, that does not appear on the Handgun Roster; and the sale of any handgun manufactured after January 1, 2003 that is not equipped with an "integrated mechanical safety device."

Massachusetts: It is unlawful to sell, transfer or possess "any assault weapon or large capacity feeding device" [more than 10 rounds] that was not legally possessed on September 13, 1994 and the sale of handguns not on the Firearms Roster. The City of Boston has a separate "assault weapons" law.

Michigan: Certain folding stock carbines are restricted.

New Jersey  bans "assault weapons" and high capacity magazines.

New York  bans "assault weapons" unless lawfully possessed or manufactured prior to September 13, 1994.

Ohio: Some local jurisdictions use to ban "assault weapons.", but because of a Ohio Supreme court case, all of these laws are unconstitutional under the preemption doctrine recognized by Ohio.

Virginia prohibits "Street Sweeper" shotguns.

The sunset of the federal assault weapons ban does not affect the validity of state and local "assault weapons" bans.

  NOTE  the picture above is an Assault weapon that is also a SBR and has a silencer.

April 28, 2008

Illinois (IL) What NFA Firearms can I own? Updated 2/2009

Illinois NFA Class 3 firearms
There are several type of Class 3 items that are restricted by the National Firearms Act.

Each state can impose additional restrictions on the sale, purchase, and transfer of class 3 firearms in addition to the compliance that is required with the national Firearms Act.

In Illinois you can own the following items that are regulated the the National Firearms Act

There does not appear to be a direct prohibition of Any Other Weapon's (AOW) but some or most AOW's appear to be banned under additional terms of the Illinois Statutes. In addition, certain C&R firearms appear to be legal. Technically these are not considered to be restricted under the NFA.
Destructive Devices (DD)Only Class 9
In Ilinois you cannot own the following NFA restricted items.
Machine Guns
Silencers
Short Barreled Shotguns (SBS)
Short Barreled Rifles (SBR)

Follow this link to find out more about Ilinois and NFA restrictions on Class 3 Firearms

Note: Only class 9 Destructive Devices are allowed in Illinois.