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Constructive Possession: NFA Trusts vs Individual Ownership
The NFA defines who can own a Title II firearm as a natural person, corporation or trust…. When an individual makes application to own a Title II firearm they are the only person who can be in possession or have access to the firearm. This creates a problem for many individuals who are married, have others who know the combination or how to gain access to the items, or want to allow others to use the firearms, even in their presence.
Joshua Prince has written and excellent analysis of the case law surrounding constructive possession and the US v. Turnbough case which stated that the Government may establish constructive possession by demonstrating that the defendant exercised ownership, dominion or control over the premises in which the contraband is concealed. Joshua goes on the state that if a spouse or other person does have the combination to the safe where the NFA firearms are kept it would be virtually impossible for the prosecutor to show that the other individual knowingly has the power to exercise dominion and control over the firearms.
The real problem occurs when another does have access to the items or can exercise dominion and control over the NFA firearm because the prosecutor can then charge that individual with constructive possession. In US v. Turnbough, an illegal firearm was in Turnbough’s home and the court of appeals found that a reasonable jury could have found that he, his live in girlfriend, and her child could conclude that all three parties exercised dominion and control over the gun and the possession could be either sole or joint.
Choosing the NRA as the Beneficiary of your NFA Trust
Often individuals do not have a specific beneficiary in mind when they create a Gun Trust. Many of these people do not want their heirs to receive the firearms or do not have heirs and choose to list NRA.
If you are considering listing the NRA as a beneficiary, here is some information on how to list them properly.
501(c)(4) Organizations:
New Jersey is About to Eliminate Handgun Sales
New Jersey is about to limit handgun purchases for dealers and individuals to 1 per month according to Attorney Evan Nappen’s interpretation of the proposed legislation. As a result, once dealers sell their inventory, you will no longer be able to purchase handguns in New Jersey. The proposed legislation will have the effect of putting all gun dealers out of business and their employees will lose their jobs.
Evan has put the legislation on notice of this for over a year but the bill has not been modified to correct for this oversight. Some believe it is an oversight, others believe that it is intentional.
This bill seems to violate the commerce clause and the Heller decision by the Supreme Court last year. If passed it will undoubtedly be challenged on a constitutional basis.
Birthplace Now Required for Background Check
Keep your information private by purchasing firearms with a NFA Trust.
Beginning June 29, 2009, the FBI Criminal Justice Information Services (CJIS) Division’s National Instant Criminal Background Check System (NICS) section is requiring that place of birth be provided for all FBI-initiated transactions.
There are claims that this addition to the NICS will be valuable for the following reasons:
Texas NFA Trust
A NFA trust is a type of revocable trust that have been modified to deal with the unique issues of NFA and Firearms purchase, ownership, transfer and possession.
Most typical trusts like those created from Quicken, Legal Zoom, or other lawyers can create problems for the Trustees, successor trustees and beneficiaries because of the instructions and powers found within them. They actually can cause an individual to create criminal liability for breaking the law. You should be careful if you have a standard trust that you are using to hold possession to firearms. Firearms that are restricted by the NFA need to be treated differently that a traditional asset found within a Revocable trust.
If you would like your trust reviewed, contact a Gun Trust Lawyer® for more information. We have several Texas NFA trust attorneys and lawyers that we are working with. Make sure that when you are talking with a Texas NFA trust lawyer that they are using the latest version of our NFA Trust.
Individual Transfer of Title II Firearms under the NFA
If you are purchasing a silencer, SBR, SBS, AOW, or Machine Gun from another individual a dealer is not required unless your state requires a dealer for a normal firearm transfer of the same class. Most states allow individual transfers for normal firearms and Title II firearms. Its best to check your local state laws for verification on this issues. If you are doing an individual Form 4 transfer, you can follow the sample form 4 and instructions found on our How to fill out an ATF Form 4 page. The only difference is that the seller will put their information where the dealers information is on the sample.
How is a NFA Gun Trust Different than a Revocable Trust
A Gun Trust is different than a typical Revocable Trust. While it is possible to hold other assets in a NFA Gun Trust, we recommend that only firearms be placed in the trust. There is no reason to subject your other assets to the liability associated with the improper use, possession, or transfer of these items. No other trust begins to deal with the many unique issues of Title II firearms ownership, possession, transfer, and use. The NFA Gun Trust has been reviewed and modified by more than 75 Estate planning and/or Firearms law lawyers who are licensed in more than 40 states. Whether your goal is to purchase a single silencer or hundreds of Title II firearms, our NFA Gun Trust can be easily modified to address your specific issues.
There are many problems in using a traditional trust when dealing with firearms. Its not enough for a beneficiary to reach a certain age prior to distributing an asset like you would do with a couch, picture on the wall, or bank account. You must ascertain the geographic location of the beneficiary, determine whether the items are legal in that state, determine if the beneficiary is legally eligible to receive, own, or possess the items, and most importantly determine if the beneficiary is mature and responsible enough to be in possession of the firearms. We all know that one of the most important things with gun ownership is training. We would never hand a gun to someone without providing them instructions on how to use it, but that is exactly what we do when we use a traditional trust. In addition, we put our family members and friends at risk when they carry out the instructions in the trust because most trusts instruct the successor trustee to break them law, when holding, purchasing, or selling assets by not pointing out how these simple actions will violate the NFA and create criminal and civil liabilities for our family members. Above is only one of the many areas that illustrate why a traditional trust is not suitable for firearms, much less Title II firearms.
In addition to the many protections created for your family, a NFA firearms trust can help you acquire class 3 weapons without the need for fingerprints or CLEO sign off. Many CLEO’s are refusing to look at Form 4’s and/or Form 1’s.
Benefits of an NFA Trust
While there are many benefits of an NFA Trust, I am often asked for some of the main benefits. I have a list of 10 of the main benefits of an NFA trust. The benefits vary based on each individual’s circumstances but most of these apply to everyone.
1) The ability to tell your representatives how to properly transfer these assets upon your death;
2) The ability to transfer assets to children even below the age of 18 at a later time while giving the trustee the ability to look at the child’s mental state, physical location, and age in addition to whether the child is legally able to own, possess, or use the firearms;
Free Gun Rights Bumper Sticker
The Citizens Committee for the Right to Keep and Bear Arms is offering free bumper stickers nationwide by calling them at 425-454-4911 or visiting their website.