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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.

May 29, 2013

Where can I hunt with Suppressors (Silencers): Updated List:

Thumbnail image for 50calsilencer.jpgWhile in some states, it is illegal to hunt with a Silencer, in the following states it is legal to hunt with a suppressor (often referred to as a "silencer").

In states where hunting with suppressors have been legalized, we have seen substantial increases in the sales of suppressors and the wait times for approval from the ATF has also increased. Many states that have legalized suppressors still have CLEOs who refuse to sign for individuals to purchase them. A NFA Trust or a more flexible Gun trust can not only avoid the CLEO signature requirement in most states but can also provide many benefits to firearms owners and their families. To learn about the benefits please fill out the contact us form at the top of this page and request information on what a gun trust is and how they may benefit you.

Remember these laws change frequently, so please verify this with your state prior to hunting with a suppressor.

New Mexico
North Carolina as of 10/1/2013
North Dakota
Oklahoma as of 11/1/2012
South Carolina
South Dakota
West Virginia
Wyoming (as of 7/1/2013)

Many state restricted the use of suppressors in regards to anti poaching regulations. Some other states like Florida and Montana allow the use of Silencers for Varmint but not hunting. If you know of other states where it is legal to hunt with a silencer please let us know.

Disclaimer: This document represents a collection of published law and research on the topic of hunting with suppressors and regulations about the same. It should not be viewed as legal advise as these laws change frequently and the document you are looking at may not be up to date or an accurate representation of the laws at the time you read it. You should check with your Gun Trust Lawyer prior to hunting in any state with a suppressor as there may be other requirement and permits necessary to hunt with a suppressor in a state.

Updated 9/5/13

September 10, 2008

Gun Trusts and Pennsylvania Elective Share Statutes

If you have a NFA Firearms trust and live in Pennsylvania you should take the PA statute 2203 into consideration.  In Pennsylvania and many other states a surviving spouse has a right to an elective share of the decedent's estate.  Generally these are around 1/3 but vary by state. 

The elective share is designed to make sure that the surviving spouse is not disinherited from the spouse when they die.  In PA the spouse is entitled to 1/3 of property owned by the decedent including property in a revocable trust.

It is possible to have your spouse waive their right in regards to a specific piece of property.  For those of you creating Gun trusts where the spouse is not a co-owner or a beneficiary, it would be wise to have the spouse waive their right to that property so that the property is sure to pass to your intended beneficiary.

Even if you create your NFA gun trust prior to a marriage, you may consider having a future spouse waive their right to that property prior to or shortly after marriage to avoid potential problems in the future.

If you need a NFA firearms trust Contact a NFA Gun Trust Lawyer®
August 22, 2008

Pennsylvania (PA) What NFA Firearms can I own? UPDATED

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

Machine Guns
Any Other Weapon (AOW)
Destructive Devices (DD) (except bombs)
Short Barreled Shotguns (SBS)
Short Barreled Rifles (SBR)
In Pennsylvania you cannot own the following NFA restricted items.
None but all Bombs are prohibited as Offensive Weapons

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

July 4, 2008

Pennsylvania's UFA: Crimes Committed with Firearms

Pennsylvania's UFA: Crimes Committed with Firearms

    18 PA.C.S. § 6103 deals with crimes committed with firearms. Specifically, "If any person commits or attempts to commit a crime enumerated in section 6105 (relating to persons not to possess, use, manufacture, control, sell or transfer firearms) when armed with a firearm contrary to the provisions of this sub-chapter, that person may, in addition to the punishment provided for the crime, also be punished as provided by this sub-chapter." (18 PA.C.S. § 6103).

July 2, 2008

Pennsylvania's Firearm and Ammunition Preemption Clause

Pennsylvania's Firearm and Ammunition Preemption Clause

18 PA.C.S. § 6120 states, "No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth." This type of language is known as a Preemption Clause and denies all counties, municipalities and townships from regulating the ownership, possession, transfer or transportation of firearms or ammunition.  
Some may recognize that this section has recently been in the news in regards to several laws that the city of Philadelphia passed limiting the types of firearms that could be owned, as well as, other regulations on firearms ownership. For a discussion of the recent Philadelphia regulations, which are invalid, as well as other regulations in violation of 18 PA.C.S. § 6120.
Another interesting aspect to 18 PA.C.S. § 6120 is its limitation on right of action against gun and ammunition manufacturers. " No political subdivision may bring or maintain an action at law or in equity  against any firearms or ammunition manufacturer, trade association or dealer for damages, abatement, injunctive relief or any other relief or remedy resulting from or relating to either the lawful design or manufacturer of firearms or ammunition of the lawful marketing or sale of firearms or ammunition to the public." (18 PA.C.S. § 6120). However, "Nothing in this subsection shall be construed to prohibit a political subdivision from bringing or maintaining an action against a firearms or ammunition manufacturer or dealer for breach of contract or warranty as to firearms or ammunition purchased by the political subdivision." (18 PA.C.S. § 6120)

To fully understand the limitations, one must look to the definition of a "political subdivision." A political subdivision is defined as "any home rule charter municipality, county, city, borough, incorporated town, township or school district." (18 PA.C.S. § 6120). Furthermore, a dealer is defined as "any person engaged in the business of selling at wholesale or retail a firearm or ammunition." (18 PA.C.S. § 6120). Moreover, "firearms" is  to have the meaning given to it in 18 PA.C.S. § 5515 (relating to prohibiting of paramilitary training) but shall not include air rifles as that term is defined in 18 PA.C.S. § 6304 (relating to sale and use of air rifles).

July 1, 2008

Pennsylvania Uniform Firearm Acts

Pennsylvania Uniform Firearm Acts

    PA's firearm laws are consolidated in Title 18, Chapter 61, Sub Chapter A, which translates to 18 PA.C.S. § 6101 et seq. This sub-chapter is known as the Pennsylvania Uniform Firearms Act of 1995 (PA UFA). (18 PA.C.S § 6101). Since the PA UFA has numerous sections, §§ 6101-6127, including subsets thereof, this article will set forth the sections of the PA UFA for quick reference purposes. Separate articles on each section will follow in the future. One of the most important sections is 18 PA.C.S. § 6120, which is a preemption section, denying any county, municipality, or township the power to regulates firearms other than the PA State Legislature.

18 PA.C.S. § 6101: Short Title of sub-chapter
18 PA.C.S. § 6102: Definitions
18 PA.C.S. § 6103: Crimes Committed with Firearms
18 PA.C.S. § 6104: Evidence of Intent
18 PA.C.S. § 6105: Persons not to Possess, Use, Manufacture, Control, Sell, or Transfer Firearms
18 PA.C.S. § 6105.1: Restoration of Firearm Rights for Offenses under Prior Laws of this     Commonwealth.
18 PA.C.S. § 6106: Firearms not to be Carried without a License
18 PA.C.S. § 6106.1: Carrying Loaded Weapons other than Firearms
18 PA.C.S. § 6107: Prohibited Conduct during Emergency
18 PA.C.S. § 6108: Carrying Firearms on Public Streets or Public Property in Philadelphia
18 PA.C.S. § 6109: Licenses
18 PA.C.S. § 6110: (Repealed. 1995 June 13, P.L. 1024 No. 17 (Spec. Sess. No. 1).
18 PA.C.S. § 6110.1: Possession of Firearm by Minor
18 PA.C.S. § 6110.2: Possession of Firearm with Altered Manufacturer's Number
18 PA.C.S. § 6111: Sale or Transfer of Firearms
18 PA.C.S. § 6111.1: Pennsylvania State Police
18 PA.C.S. § 6111.2: Firearm Sales Surcharge
18 PA.C.S. § 6111.3: Firearm Records Check Fund
18 PA.C.S. § 6111.4: Registration of Firearms (No registration may be kept)
18 PA.C.S. § 6111.5: Rules and Regulations
18 PA.C.S. § 6112: Retail Dealer Required to be Licensed
18 PA.C.S. § 6113: Licensing of Dealer
18 PA.C.S. § 6114: Judicial Review
18 PA.C.S. § 6115: Loans on, or Lending or Giving Firearms Prohibited
18 PA.C.S. § 6116: False Evidence of Identity
18 PA.C.S. § 6117: Altering or Obliterating Marks of Identification
18 PA.C.S. § 6118: Antique Firearms
18 PA.C.S. § 6119: Violation Penalty
18 PA.C.S. § 6120: Limitation on the Regulation of Firearms and Ammunition (Preemption)
18 PA.C.S. § 6121: Certain Bullets Prohibited (use of a KTW Teflon coated bullet or other armor-    piercing ammunition during the commission of a crime, as set forth in 18 PA.C.S. § 6102)
18 PA.C.S. § 6122: Proof of License and Exception
18 PA.C.S. § 6123: Waiver of Disability or Pardons
18 PA.C.S. § 6124: Administrative Regulations
18 PA.C.S. § 6125: Distribution of Uniform Firearm Laws and Firearm Safety Brochures
18 PA.C.S. § 6126: Expired
18 PA.C.S. § 6127: Firearm Tracing

June 30, 2008

Pennsylvania's UFA: Evidence of Intent

18 PA.C.S. § 6104 deals with what constitutes intent in relation to 18 PA.C.S. 6105, prohibited  persons. "In the trial of a person for committing or attempting to commit a crime enumerated in section 6105 (relating to persons not to possess, use, manufacture, control, sell or transfer firearms), the fact that that person was armed with a firearm, used or attempted to be used, and had no license to carry the same, shall be evidence of that person's intention to commit the offense." (18 PA.C.S. § 6104).
June 30, 2008

Pennsylvania's UFA: Persons not to Possess, Use, Manufacture, Control, Sell, or Transfer Firearms

Pennsylvania's UFA: Persons not to Possess, Use, Manufacture, Control, Sell, or Transfer Firearms

    18 PA.C.S. § 6105 deals with persons who cannot possess, use, manufacture, control, sell, or transfer firearms. It must be noted that this section applies to convictions that were both committed within and outside of the Commonwealth of Pennsylvania. (18 PA.C.S. § 6105). These prohibitions are broken down into two categories: 1. those persons who violate one of the enumerated offenses; and 2. those persons who fall into nine subcategories of non-enumerated offenses. There is also an exemption  clause which allows one who has been convicted of one of the enumerated offenses or certain non-enumerated offenses to petition the court of common pleas for relief. Moreover, any person who becomes a prohibited person has "a reasonable period of time, not to exceed 60 days from the date" of conviction. (18 PA.C.S. § 6105).

Continue reading "Pennsylvania's UFA: Persons not to Possess, Use, Manufacture, Control, Sell, or Transfer Firearms" »

June 8, 2008

Pennsylvania: Right to Bear Arms

Pennsylvania: Right to Bear Arms
The citizens of Pennsylvania have a constitutional right to bear arms.  It is found in Article I; Section 21: Right to Bear Arms and states:

"The Right of the citizens to bear arms in defense of themselves and the State shall not be questioned"

June 4, 2008

Open Carry in Pennsylvania

Open Carry refers to whether an individual is permitted to carry a handgun that is visible.  Some states permit open carry and others do not.  In contrast, many states offer concealed weapons permits.  These allow individuals to have a handgun that is not open and visible.  It is important to understand what your states laws are and how and where you are permitted to have weapons in or near your possession.

Joshua Prince, a 3L law student has complied this information on Open Carry in Pennsylvania. This information was modified by comments received by a retired deputy sheriff who noted that Pittsburgh is a second of the second class and not of the first like Philadelphia is.

To the surprise of many residents, as well as law enforcement officers, individuals who are not prohibited from owning firearms may openly carry a handgun on or about his/her person without a license (18 PA.C.S. § 6106). This has been upheld by the PA Supreme Court in Commonwealth v. Ortiz and Commonwealth v. Hawkins. However, there are some limitations on open carry. Specifically:

1. the handgun must be in plain sight;
2. the individual cannot open carry in a vehicle (18 PA.C.S. § 6106);
3. in cities of the first class (Philadelphia) and Pittsburgh a city of the second class; and
4. where prohibited by statute.

Currently Pennsylvania statute § 6107 prohibits open carry during a state emergency and in the city of Philadelphia without a License to Carry Firearms (LTCF) otherwise known as  a concealed carry permit (18 PA.C.S. § 6108).  

There are some places which are off-limits in Pennsylvania, whether you are open or concealed carrying.  These include:

1. All Federal Facilities (Unless Authorized);
2. All Court Facilities;
3. State Parks (except while in a vehicle);
4. Adult and Juvenile Detention Facilities; and
5. Airport Terminals (secure areas only).

The issue of both open and concealed carry on school property has not been fully determined but it appears that it would not be allowed under Pennsylvania statute 912 where it states that possession of "a weapon in the buildings of, on the grounds of, or in any conveyance providing transportation to or from any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school" is a misdemeanor of the first degree.

However, the statute does allow "a defense that the weapon is possessed and used in conjunction with a lawful supervised school activity or course or is possessed for other lawful purpose." 

It should be noted that Pennsylvania allows the concealed (with a LTCF) or open carry of a firearm in an establishment that sells or serves alcohol.

Anyone considering open or concealed carry should check out the website and download the Open Carry brochure.

May 30, 2008

Pennsylvania's UFA: Definitions

Pennsylvania's UFA: Definitions

    18 PA.C.S. § 6102 deals with defining terms used in the PA Uniform Firearms Act of 1995 (PA UFA). It should be noted that this section is not all inclusive and that particular provisions may have their own definitions.
    "The following words and phrases, when used in this sub-chapter shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:" (18 PA.C.S. § 6102).
1.    "COMMISSIONER." The Commissioner of the Pennsylvania State Police.
2.    "COMMONWEALTH PHOTO IMAGING NETWORK." The computer network administered by the Commonwealth and used to record and store digital photographs of an individual's face and any scars, marks, tattoos or other unique features of the individual.
3.    "CONVICTION." A conviction, a finding of guilty or the entering of a plea of guilty or nolo contendere, whether or not judgment of sentence has been imposed, as determined by the law of the jurisdiction in which the prosecution was held. The term does not include a conviction which has been expunged or overturned or for which an individual has been pardoned unless the pardon expressly provides that the individual may not possess or transport firearms.
4.    "COUNTY TREASURER." The county treasurer or, in home rule or optional plan counties, the person whose duties encompass those of a county treasurer.
        a. The term does not include any of the following:
1.    Federal or State offenses pertaining to antitrust, unfair trade practices, restraint on trade or regulation of business.
2.    State offenses classified as misdemeanors and punishable by a term of imprisonment not to exceed two years"
6.    "FIREARM." Any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel to the face of the closed action, bolt or cylinder, whichever is applicable.
7.    "FUND." The Firearm Ownership Fund established in section 6111.3 (relating to Firearm Ownership Fund).
8.    "LAW ENFORCEMENT OFFICER." Any person employed by any police department or organization of the Commonwealth or political subdivision thereof who is empowered to effect an arrest with or without warrant and who is authorized to carry a firearm in the performance of that person's duties.
9.    "LOADED." A firearm is loaded if the firing chamber, the nondetachable magazine or in the case of a revolver, any of the chambers of the cylinder contain ammunition capable of being fired. In the case of a firearm which utilizes a detachable magazine, the term shall mean a magazine suitable for use in said firearm which magazine contains such ammunition and has been inserted in the firearm or is in the same container or, where the container has multiple compartments, the same compartment thereof as the firearm.
10.    "PENNSYLVANIA SHERIFFS' ASSOCIATION." The State association of sheriffs authorized by the act of June 14, 1923 (P.L. 774, No. 305), entitled "An act authorizing the sheriffs of the several counties of this Commonwealth to organize themselves into a State Association, for the purpose of holding annual meetings, to secure more uniformity and cooperation in the conduct of their offices, and providing for the payment of certain expenses in connection with such meetings by the various counties."
11.    "SAFEKEEPING PERMIT." As defined in 23 PA.C.S. § 6102 (relating to definitions).
12.    "SHERIFF."
    a. Except as provided in paragraph (b), the sheriff of the county.
    b. In a city of the first class, the chief or head of the police department.
13.    "STATE." When used in reference to different parts of the United States, includes the District of Columbia, the Commonwealth of Puerto Rico and territories and possessions of the United States.

May 30, 2008

Transportation of Firearms in Pennsylvania

Depending on the type of firearm, either long gun or handgun, the laws regarding transportation differ. (18 PA.C.S. § 6106).

A long gun includes rifles, shotguns, and may include NFA firearms, depending on whether the barrel and overall length classifies it as a long rifle or handgun. All long guns must be unloaded, prior to transport; meaning that the chamber must be clear and all magazines removed.  Ammunition must be stored in a separate container and cannot be loaded in the magazines.

A handgun must also be unloaded, prior to transport, unless the individual possesses a valid PA License to Carry Firearms (LTCF) or other similar license issued by another state, which PA honors. For more information see the article on Pennsylvania Concealed Gun Reciprocity.  Moreover, handguns may only be transported to and from specific activities and locations. Some examples of "to and From" are the place of purchase, repair, range, hunting location, or other places listed in 18 PA.C.S. § 6106. 

If Class 3 firearms are going to be transported out of state, one needs to file a Form 20 to obtain permission from the AFT.

May 29, 2008

Concealed Carry in Pennsylvania Updated

To carry a handgun concealed in public, an individual must possess a valid Pennsylvania License to Carry Firearms (LTCF, 18 PA.C.S. § 6106) or an equivalent license issued by a state that Pennsylvania honors (See for up to date reciprocity agreements).

An individual may carry a concealed handgun, without a LTCF:
  1. in one's home,
  2. fixed place of business, and
  3. on private property where permission has been given
(18 PA.C.S. § 6106).

Moreover, an individual cannot carry a handgun in a vehicle without a valid Pennsylvania LTCF or an equivalent license issued by a state that Pennsylvania honors (18 PA.C.S. § 6106). Nevertheless, an individual with a LTCF is NOT required to carry concealed; he/she may carry openly, including in cities of the first class, such as Philadelphia.

Under the Pennsylvania Uniform Firearms Act (UFA), Pennsylvania resident LTCF are issued by the county sheriff of the jurisdiction in which the applicant resides. Nonresidents licenses are issued by select county sheriff offices.

Pennsylvania is a "shall issue" state, meaning that the appropriate sheriff must issue the license, unless the applicant is prohibited.
    There are places which are off-limits in Pennsylvania , when concealed carrying.  These include:
1. All Federal Facilities (Unless Authorized);
2. All Court Facilities;
3. State Parks (except while in a vehicle);
4. Adult and Juvenile Detention Facilities; and 5. Airport Terminals (secure areas only).

The issue of both open and concealed carry on school property has not been determined. Per 18 PA.C.S. 912, possession of "a weapon in the buildings of, on the grounds of, or in any conveyance providing transportation to or from any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school" is a misdemeanor of the first degree. However, the statute allows for "a defense that the weapon is possessed and used in conjunction with a lawful supervised school activity or course or is possessed for other lawful purpose."

There is an issue of the Pennsylvania State Police (PSP newsletter regarding CCW on/in schools zones.  It gives an example of a PA concealed license permit as being an exception to the federal law; however, there is no definitive answer at this time.  You might read page 3 of the PSP newsletter regarding CCW on/in a school zone.PA firearms2006_Dec.pdf

It should be noted that Pennsylvania allows the concealed (with a LTCF) or open carry of a firearm in an establishment that sells or serves alcohol.

    Anyone considering open or concealed carry should check out the website and brochure

May 29, 2008

Pennsylvania Concealed Gun Reciprocity

Pennsylvania's Attorney General, Tom Corbett, has been instrumental in enacting new reciprocity agreements between Pennsylvania and other states. For the most up to date information, an individual should check the Attorney General's website. On the Pennsylvania Attorney General's site, an individual can download copies of each reciprocity agreement. Follow the following links for a map of US reciprocity agreements, a Map of Pennsylvania Reciprocity agreements.

Currently, an individual with a Pennsylvania LTCF may conceal carry in Alaska, Arkansas, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Missouri, Montana, North Carolina, Oklahoma, South Dakota, Tennessee, Texas, Utah, Virginia, Vermont, and Wyoming.

If you are a Pennsylvania resident the following states will also honor your LTCT Colorado, Florida, Michigan, New Hampshire, West Virginia Open Carry may or may not be legal in the above states.