It is now legal to hunt in Montana with a Suppressor.  On April 23rd, 2015, Gov. Steve Bullock signed House Bill 250, legalizing the use of suppressors for all lawful hunting in Montana. The bill, sponsored by Rep. Kirk Wagoner (R-75), originally pertained only to the use of a suppressed firearm “when hunting wildlife not protected by state or federal law”. However, on March 27th, Gov. Bullock’s returned HB 250 to the legislature with proposed amendments that sought to expand the scope of the legislation to allow the use of a suppressor on a firearm during all lawful hunting.

Mr Bullock previously vetoed a similar bill in 2013,  but explained the recent signing by stating:

“It is time for Montana to join the clear majority of states that allow the use of suppressors for hunting. All of the western states do so, except for California. The public perception of suppressors as the same thing as silencers, where the assassin quietly dispatches his victim, no longer holds true. Suppressors mitigate the sound of a shot, but do not silence it.

The use of suppressors for hunting, when hunters cannot wear ear protection because they need to be aware of their surroundings, can help protect against hearing loss. This is especially true for our younger hunters, even those who are not actually hunting, but are accompanying their parent in the field.

I understand the concerns regarding the risks of increased poaching and do not take this lightly, but other states have not found this to be the case.”

Montana has become the 35 state to permit hunting with suppressors without restrictions and the 36th state to permit hunting with a suppressor.    The use of a Gun Trust can simply the process or purchasing a suppressor and permit additional authorized users, which is not possible when purchased as an individual.  If you are looking for a Montana Gun Trust or Montana NFA trust contact us for further information on the process.

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In the April 27th issue of Bullet Points, the NSSF wrote the following update

NO IMPLEMENTATION YET SEEN FOR NOTICE 41P AS FINAL RULE . . . NSSF has confirmed with ATF that the bureau is unlikely to publish Notice 41P (NFA Trusts) as a Final Rule for quite some time. This is in part because EPS resources are being diverted to help process the 310,000 public comments received in response to the armor piercing ammunition framework proposal. In addition, it seems ATF has not prepared to revise the NFA database so that it can track “responsible persons” for NFA trusts. The proposed rule would require the responsible person(s) on an NFA Trust be fingerprinted.

This seems consistent with the statements made by the ATF at the Annual Firearms Seminar in Nashville earlier this month when we reported on many of the statements ATF made including poorly written trusts.  Remember, a properly written gun trust should give you and others involved with the trust guidance what you can and can’t do instead of leave it up to the individual to determine what to do.

For a complete listing of our posts on 41P see our 41P webpage at http://www.guntrustlawyer.com/41p.html

While this may seem obvious, we regularly get asked this question.   YES, when using the ATF eFiling for a Fom1, a signed copy of your gun trust must be uploaded.  The maximum file size that can be attached is 3MB but you can upload multiple files if necessary.  We recommend scanning your gun trust at 200 DPI in black and white or grayscale to keep the file size small.  If you find that the file size is still over 3MB, you can separate the documents into several parts which can each be uploaded. In addition to the trust document, you must also submit all amendments which have been executed at the time of the filing, any schedules mentioned in the document like Shedule A, Sechedule B, lists of beneficiaries, list of co-trustees, and in most cases a Schedule A or Assignment sheet showing the trust has been funded is also required.

A word of caution about Gun Trusts that use a Schedule A to list firearms.

If your gun trust uses Schedules like a Schedule A to list the firearms, it may not be wise to include your non NFA firearms in the trust as you will end up sending the ATF a list of all of your firearms.  Gun trusts that use assignment sheets are generally preferable to others because of the ability to maintain the privacy over your non NFA firearms.

While many people initially consider the use of a gun trust for NFA firearms, many of the same benefits exist for Title I firearms or those subject to the GCA.  As we do not know who will survive us, where they will live, if they will be prohibited, or if they will be mature and responsible enough to have firearms after our death (we are not there to make those decisions) traditional estate planning can create problems for our family and friends.

Some trusts which are marketed as NFA trusts or gun trusts do not provide guidance on how to transfer NFA or Non NFA firearms and leave those decisions up to the individuals who survive you.  You should carefully review your trust to make sure those who will survive you will clearly be able to understand their duties and obligations.

Many individuals have purchased thread adapters to permit the use of an oil filter as a “solvent trap”.  The problem is that this adapter can also be used and is often intended to be used to create a suppressor.   The resellers on ebay who sold these adapters have all seemed to have disappeared and many of their customers are reporting being contacted by local ATF agents to collect the parts they purchased.

Recently we have had several clients contact us about purchasing these “solvent trap parts” and using them to make a Suppressor with a Form 1.  Apparently there is someone marketing these parts including baffles as a solvent trap to be used for gun cleaning.  It would not surprise me, if ATF shut down the ability of companies to sell parts as cleaning kits or solvent traps and then began targeting the customers of these parts in much the same way as the ATF continues to contact the customers of the companies who previously sold them eBay.

ATF has taken the position, in the past, that a part to a suppressor is a suppressor and under this theory, if you purchase these parts, the parts may in and of themselves be considered suppressors.  Paying the tax stamp on a Form 1 does give you the permission to manufacture a suppressor, but not necessary to purchase a suppressor manufactured by someone else.  We would caution clients who are considering manufacturing their own suppressors from parts that ATF considers a suppressor as the purchase of these parts may require an approved Form 4.

For those who state that no one has ever been convicted of charges related to a homemade suppressor, you might see this article. Lots of people are charged and convicted of illegal suppressors.  Sometimes people get the concept of people rarely being convicted of the  use of a  legally owned suppressor with the common occurrence of people being charged and or convicted of possession or use of an illegal suppressor.

I know many will say it is perfectly legal to purchase these items. ATF  has previously indicated that it is legal a company to sell “solvent traps”  and parts to “solvent traps” and It is legal to use them as “solvent traps”.  The problem is that most people who purchase them intend to use them as suppressors or parts to a suppressor and not as a solvent trap.  Even those who do not intend to use them as suppressors, sometimes do.  Looking at what has happened with other products in the last year we can see that ATF seems to be moving from intent to use, to classify a firearm.  Whether this is reasonable or proper for them to do, it is probably not a fight you as an individual can afford.  It is our opinion, that the cost of defending your position, regardless of the outcome, is not something that makes sense for the average individual.   The ATF is not stupid, the fact that you are even reading this article would indicate to most that your intention or interest in purchasing these items is not to use them as a solvent trap.

If you purchased a suppressor (solvent trap adapter) off ebay or somewhere else, you may want to contact a criminal law attorney in your area to talk with you about how to properly deal with the parts without creating liability or reducing the risk of liability.  Just because you haven’t been contacted yet, does not mean they will not contact you.  Even this week, we have had reports of people being contacted by the ATF in regards to the purchase of these items.

While at the NRA Firearms Law Seminar in Nashville,  ATF ‘s attorney William Ryan made some interesting comments about the ATF, NFA, GCA and Gun Trusts:

  1. A trust can be a beneficiary of a will or other trust and obtain a tax free transfer using a Form 5 if the trust or will is drafted correctly.
  2. A Trust can be a beneficiary of a will if there is an order from the probate court directing the distribution to a trust, otherwise one might have to transfer to an individual on a Form 5 and then pay $200 to transfer items to a trust.
  3. ATF is still reviewing the 9500+ comments filed on 41P.
  4. ATF is not concerned about an executor being a prohibited person. (This seems to conflict with the original reason for 41P in the first place.)
  5. ATF likes lawyer drafted trusts, most trust problems are from gun store trusts, free trusts, or trust form that individuals try to create themselves.
  6. ATF examiners do not know the law, and have often made mistakes that can be cleared up by having your lawyer contact their legal department.
  7. ATF has seen many trusts which name the same individual as the beneficiary. It would appear that all of those people are just copying  the trust from someone else.  They believe that one day this random person could inherit thousands of NFA firearms.
  8. Between 2003 and 2012 trust applications increased 80,000 %.
  9. ATF stated that Gun Trusts can purchase and own both Title I and Title II firearms (those under the GCA and NFA).

With the recent increase in poorly written online trusts that have become available, ATF feels there will be a big business in fixing them down the road for those who have unknowingly received the free or fill in the blank trusts.

In my opinion, one of the worst examples of an online trust we have seen is the Easytrust being promoted by Silencerco.  According to them, there may be as many as 1000 people who have already received this trust which contains numerous problems. For a trust that is only 4.5 pages long, it appears to have even more problems than a Gun Trust drafted from Quicken.  The list of problems is huge, but the biggest problems include:

  • The trust permits a trustee to easily violation the NFA  throughout the document by not clearly prohibiting these violations.
  • The trust permits any trustee to sell your guns without your consent.
  • The Trust permits trustees to take away your gun rights, (from within the trust) if in their opinion you can’t handle your own affairs. Of course, your legal gun rights under the 2nd Amendment will not be removed, but your ability to use and have access to the guns in your trust can.
  • The trust directs distribution to beneficiaries upon your death without any written permission (a violation of the NFA)
  • The instructions incorrectly state that the trust needs to be registered in many states where it does not (seems to be similar to the problem we reported with the quicken trust)
  • Directs you to obtain an EIN number for their trust when it is not necessary, if requested from your bank. The instructions should state why an EIN number is not required and direct you on a proper response to provide the bank or how to deal with this common misunderstanding to tax law that many banks can initially make

(Updated 4/19/15 for a clarification).

I guess you get what you pay for.  Some people are only concerned about purchasing items and do not think about the consequences to themselves nor others.  It is wise to do a little research on Gun Trusts and learn why you would want a Gun trust for all your firearms and not one limited to NFA Guns like Easytrust or many other trusts which are not supported by lawyers.

Joshua Prince, a PA Gun Trust Lawyer, has written about the ATF statements on his blog Shocking Statements/Concessions by ATF at the NRA Firearms Law Seminar

We are often asked about people who are not U.S. Citizens and their ability to be involved with a gun trust, purchase NFA firearms, or use NFA firearms.

Those who are not citizens are separated into two categories: 1) resident aliens and 2) nonimmigrant aliens. A resident alien is a person who is not a citizen of the United States, but has become a permanent resident of the United States.   A nonimmigrant alien is generally a tourist, student, business traveler, or temporary worker who enters the U.S. for a fixed period of time. They are lawfully in the United States, but not lawfully a permanent resident.

Nonimmigrant aliens lawfully admitted to the United States without a visa are not prohibited from shipping, transporting, receiving, or possessing firearms or ammunition, provided they meet State of residency requirements and are not otherwise a prohibited person. As such, they are qualified to be a Trustee of a Gun Trust and in possession of an NFA firearm as long as they are not prohibited and meet the State residency requirements.

Nonimmigrant aliens lawfully admitted to the United States with a visa may purchase or possess a firearm in the United States only if they meet one of the following qualifications: Continue reading

We often get asked questions about how and if a Gun Trust or another type of trust can own or obtain an FFL or C&R license.  A Trust is not a person under the GCA of 1968 and as such a Trust may not apply for or receive an FFL or C&R license.  That being said, a Trust may be the owner of a Corporation or LLC that holds an FFL.  That is the Stock of a Corporation can be owned by a trust or the membership interest in an LLC can be owned by a Trust.

In addition, some firearms manufacturers have used trusts to help permit individuals who may not be W2 employees to be in possession of certain items that they might not be able to be in possession of otherwise.  For example a suppressor manufacture may have independent sales reps that would not normally be able to be in possession of the suppressors.

 

On March 23rd, Ohio repealed the prohibition on the use of legally possessed suppressors while hunting.  Ohio has become the 35th state to permit hunters to use legally possessed suppressors while hunting.  IN 2014 Alabama, Florida, Georgia, and Louisiana all enacted legislation to permit the use of suppressors while hunting.  Ohio also enacted Shall Sign legislation.

Among the many benefits, to using suppressors are:

  1. HEARING PROTECTION: Noise induced hearing loss and tinnitus are two of the most common afflictions for recreational shooters and hunters. Everyone knows that gunfire is loud, but very few people understand the repercussions that shooting can have on their hearing until it’s too late. Suppressors reduce the noise of a gunshot by an average of 20 – 35 dB, which is roughly the same as earplugs or earmuffs. By decreasing the overall sound signature, suppressors help to preserve the hearing of recreational shooters, hunters, and hunting dogs around the world.
  2. SAFER HUNTING: Most hunters do not wear not wear hearing protection in the field because they want to hear their surroundings. The trouble is, exposure to even a single unsuppressed gunshot can, and often does, lead to permanent hearing damage. Suppressors allow hunters to maintain full situational awareness, while still protecting their hearing. The result is a safer hunting experience for the hunter, and for those nearby.
  3. NOISE COMPLAINTS: As urban developments advance into rural areas, shooting ranges and hunting preserves across the country are being closed due to noise complaints. Although it can still be heard, suppressed gunfire helps mitigate noise complaints from those who live near shooting ranges and hunting land.
  4. ACCURACY: Suppressors reduce recoil, and help decrease muzzle flinch. These benefits lead to improved accuracy, better shot placement, and more humane hunts.

Most agree that the use of a Gun Trust is the best way to own a suppressor because of the ability to protect family and friends from issues of accidental and constructive possession. To find out more about the benefits of a gun trust use the form on this page to request information.

ATF has a history of approving Form 4 transfers to invalid trusts.  Today,  I received another example of an invalid trust that ATF had already approved a transfer for a suppressor.  As more people are learning about gun trust we are seeing more poorly written and in some cases invalid gun trusts.

Most invalid trusts are invalid because they do not name a beneficiary or someone lists themselves as the beneficiary. With the trust we received today, the trust did not meet the minimum signing requirements for the state where it was created.

I recently purchased a trust from a major suppressor manufacture, that had the same problem and while I live in Florida, the trust that was created online would would not be valid in Florida.  In addition, I made a typographical error entering the information and my repeated attempts to contact the company to fix the issue have been ignored.  For a company who prides themselves on customer service, this has been disappointing.   For the time being we would warn people to stay away from “easytrust” which is being advertised by a suppressor manufacture.  The trust  has many of the  problems associated with traditional trusts that can create liability for the trustees and beneficiaries of a poorly written gun trust and the one I received would not be valid in my state unlike their claims.

While talking with the client of the invalid trust, it turned out that he  had received the trust from a friend of his who told him it was prepared by a lawyer.  It would appear that the trust was not prepared by a licensed attorney or the lawyer was not familiar with trust law, gun law, or both.  A Gun Trust is very different than a revocable trust and one needs to consider each and every power and instruction in a trust and how they will interact with firearms owners and their desires to draft a well written gun trust.

With many online gun trusts popping up it is important to realize that a trust is not valid, nor is possession legal, just because the ATF approves a transfer.  If you have an invalid trust and are in possession of a firearm restricted by the NFA, you in violation of the NFA and could face both civil and criminal penalties.

A few benefits of a properly drafted Gun Trust include:

  1. The ability to tell your representatives how to properly transfer these firearms upon your death regardless of the state that they live in;
  2. The ability to move states and maintain a trust that is easily recognized as valid in other states;
  3. The ability to deal with co-trustees and beneficiaries in multiple states;
  4. The ability for your minor children to use the NFA firearms with adult supervision and parental consent;
  5. The ability to transfer assets to children, even below the age of 18, when they reach an appropriate age, while giving the someone the ability to make distribution decisions based on mental state,  physical location, legality of the transfer, and age;
  6. The ability to make unequal distributions so that firearms do not have to be liquidated to give equal distributions;
  7. The ability of the Trustee to refuse assets transferred by will or other means when  the NFA and state requirements are not complied with; Continue reading

What’s the Story Behind ATF “Banning” 5.56mm Ammo? (. . . and what can you do about it?)

By Glenn D. Bellamy, Armorer-at-Law®
March 5, 2015

There’s been no shortage of misinformation and hyperbole about an ATF memo released on February 13th reported to “ban AR15 ammo.”  The memo describes a “framework” by which ATF proposes it would consider requests for “sporting purpose” exemptions under the federal statute banning the manufacture, importation or sale (but not possession) of “armor piercing” projectiles.  I’ve searched and research the law and the facts behind it with passion over the last two weeks. I’m tempted to write a legal brief in opposition, or at least to give it a thorough fisking.  But that would bore you and be wasted on the ATF at this point.

Instead, I’ll give you the skinny on what’s going on and the most effective thing(s) you can do about it.

The Skinny

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