Articles Posted in FAQ’s

With the recent church shooting in Charleston, our office has received many questions asking if it is legal to carry a concealed weapon to church with a CWL, or concealed weapons license. Currently, there are no laws in Florida that forbid carrying a concealed weapon inside or on the grounds of a religious institution except in portions which may constitute a  church school.

Studies have shown that mass murders often pick places to attack where the attacker believes they cannot be attacked in retaliation. These “Gun Free Zones” are usually churches, schools, and former places of employment. The next question then becomes can a church hire armed security guards to defend against the crazy shooters?

Each state has their own rules regarding when guns may be brought and you should investigate them.

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We have been telling people for years that a properly drafted gun trust can help protect your firearms in the event that you become a prohibited person in the future.  Today the Supreme Court came to a Unanimous Decisions supporting our view that a trust can be used to hold firearms for a liquidating event or for the future beneficiaries of the trust without being lost.

The court held that “while a convicted felon is prohibited from “possessing” firearms pursuant to 18 U.S.C. 922(g), nothing strips the individual of his/her property interest in the firearms and the individual retains “the right merely to sell or otherwise dispose of their firearms,” provided the felon lacks all control over the firearms.  Our Gun Trusts already provide for this ability to just this type of purpose.

The Court also held that  “§ 922(g) does not bar such a transfer unless it would allow the felon to later control the guns, so that he could either use them or direct their use.”  This even permits an individual to create a gun trust after they lose their rights, assign the property to a trust as long as they do not have the ability to have direct or indirect use nor direct their use.  A properly drafted gun trust would remove all abilities of a felon or prohibited person from using or directing the use of all firearms and ammo within the trust.

We are often asked if you have to be 21 to build an SBR or Suppressor.  If you are manufacturing a firearm under the NFA using an ATF Form 5320.1  you only need to be 18 under federal law.  Likewise, if you are purchasing a firearm using an ATF Form 4 from an individual, trust, or non FFL you only need to be 18 years old.  If you are buying one from an FFL, you must be 21 years old under federal law.  Your state may impose stricter requirements.

Below is an excerpt from the attached letter  from ATF explaining the age requirement.

This is in response to your letter of November 16, 2006, to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) advising that you are 18 years of age, the owner of a AR-15 type receiver, and wish to register it has a short-barreled rifle using an ATF 1 application.You ask whether ATF would approve the application submitted under these circumstances.

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.

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.

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.

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.

 

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

In Florida, it is illegal for an individual to be on probation to own, possess, or use a firearm without permission of a Judge and his or her probation officer. While initially, this may sound reasonable because in our minds we tend to associate probation with criminals and felons, many of us do not realize that this also applies to those on probation for misdemeanor and driving offenses. Still don’t see a problem? What about a DUI or reckless driving charge? Did you know that you or your spouse could go to jail for owning, using, possessing, or having access to a firearm while on probation for a driving charge?

Most Jacksonville Criminal Defense Lawyers may not know to ask their clients about firearms in these circumstances and may be advising their clients incorrectly when charged with a DUI or reckless driving charge. A Gun Trust can be designed to manage your firearms without risk of loss and criminal prosecution while an individual or family member is on probation.

If you live in another state, you may check to see if the terms of probation include restrictions on ownership, transfer, possession, and use of firearms or weapons.

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