A good gun trust costs less than a good gun. You get what you pay for.
I’m passionate about the literal interpretation of the Second Amendment to the United States Constitution. I know that not everybody feels the same way I do. I acknowledge that some people have had bad experiences with criminals misusing a firearm. My heart goes out to you if you or a loved one have been hurt by criminals. The purpose of this article is to provide information about how law-abiding citizens can stay in compliance with the law and exercise their Second Amendment rights within the full extent of the law.
The oldest gun law on the books is the Second Amendment. It states, “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The Second Amendment is one of the founding precepts of our nation. Lawyers call it an original source. An original source law is a foundational law that other laws are built on. The Second Amendment is the subject of much controversy and discussion of what the words mean, how many commas are in it, and where those commas are. The Second Amendment has been broken down by grammar experts probably more than any other single constitutional right. It is best to think about it just by the words that are there. The Second Amendment means that we are to have the right to keep and bear arms. That is the plain meaning of the constitutional right.
Our rights are certainly not unlimited. There are criminal laws to prevent people from being harmed. We must have laws; otherwise, people could use these completely unrestricted freedoms to work anarchy. One of the oldest modern gun laws is the National Firearms Act of 1934 which governs most firearms purchases. The 1934 firearms act is enforced by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). The 1934 Firearms Act created a tax and regulation on certain classes of weapons. The act was a response to organized crime. In the 1930’s organized crime started using more powerful guns like machine guns, the most well-known of which is the Tommy gun. One of the major impetuses for these laws was crime such as the Saint Valentine’s Day massacre. Congress levied a $200 tax for the purchasing machine guns so people would not be able to afford to buy them. Two hundred dollars was a lot of money back then. It had the effect of banning anything that was regulated by the National Firearms Act.
Firearm is a technical term and the NFA lists out what qualifies as a “firearm.” A firearm can be a suppressor (more commonly known as a silencer). It can be a machine gun which is a firearm that will shoot more than one bullet per pull of the trigger. It can be a short-barreled rifle which is a rifle having a barrel less than 16 inches. It could be a short-barreled shotgun, which is a shotgun having a barrel less than 18 inches. The 1934 Firearms act also regulates destructive devices, such as anything over 50 caliber, rockets and grenades. There is another category of NFA regulated “guns” called “Any Other Weapon”, or AOW, such as pen gun or a cane gun, which is a disguised weapon. Some statutes have attempted to ban certain firearms, and the Supreme Court of the United States heard challenges to those bans.
U.S. v Miller, 307 U.S. 174 (1939) was a Supreme Court case that held that the possession of a sawed-off double barrel shotgun was not protected by the Second Amendment because it was not rationally related to the preservation of a well-regulated militia. In 2008 a new Supreme Court case known as Heller v District of Columbia, 478 F. 3d 370 (2008) answered the question about whether an individual person has the right to own and carry a firearm for self-defense within the home. The Supreme Court held that there is an individual right to own firearms. Justice Scalia wrote the majority opinion in which he laid out a fantastic history of the interpretation of the Second Amendment. The 1934 National Firearms Act still stands. It is an example of how constitutional rights are subject to reasonable restrictions. What is reasonable is up for debate, and most restrictions are confusing.
Some people get confused because a shotgun need to be 18 inches but a rifle can be 16 inches. It doesn’t make a lot of difference but that 2 inches will get you in trouble if you’re in the wrong place at the wrong time. The ATF is a government agency that is responsible for the interpretation of the statute passed by Congress. The ATF has a history of arbitrarily, capriciously, and suddenly changing their interpretation of rules. On one day it was the ATF’s policy to measure the overall length of a rifle with a folding stock unfolded, but the next day the rule was to measure it folded. If it fell under a certain length it was regulated by the ATF as “AOW,” and all of a sudden it is an unregistered NFA firearm because the ATF just decided to change how to define it. The same thing that happened with the bump stock ban. The President told the ATF to ban bump stocks, and the ATF then arbitrarily applied the legal definition of “machine gun” to bump stocks contrary to previous ATF rulings. In order to purchase an NFA regulated firearm, an application must be submitted to the ATF.
The general federal rule is that you can qualify to own an NFA regulated firearm if you can pass a background check at a gun store. State laws can be more restrictive, but Texas law is not more restrictive than the federal law. An application to the ATF and the $200 tax must be submitted and approved, and the Chief Law Enforcement Officer (CLEO) of your area must be notified of your application before you can actually possess one of these firearms. The CLEO could be the Sheriff or the District Attorney depending on where you live. The application for a regulated firearm is very technical, and if the application contains mistakes, it can get kicked back to you, increasing already significant wait times. Once approved, the ATF literally puts a stamp on your application like a postage stamp and they stamp it with a rubber stamp and mail back to you. Then, you can either go pick up your firearm from a store or you can assemble it if you submitted an application to make a restricted firearm.
There are several ways to submit an application to own an NFA firearm under the 1934 NFA. Applications can be made as an individual, as a Corporation or LLC, or as a trust. Applying as an individual instead of a trust has serious disadvantages. An entity like a corporation, LLC, or trust can own the firearms and the president, member, or trustee could be the responsible person allowed to possess those firearms. The reason that these three methods exist is because all three of these are considered persons by law.
There are disadvantages of using a Corporation, including filing a public certificate, filing another tax return, and holding meetings. A trust doesn’t have to be filed anywhere, and is a document that doesn’t have to appear on any public records. The trust document must be submitted to the ATF where NFA Trust Examiners will determine if the trust is legal in the applicant’s state, but it is not a public record. The ATF is required to shred all the applications once they are processed.
One major advantage to using a trust is that you can designate Co-Trustees, which the ATF calls “Responsible Persons”. A responsible person is defined as somebody the trust gives the right to possess or control its NFA firearms, and such “Responsible Persons” must have the ability to lawfully possess and have physical control over those NFA firearms. A NFA firearm acquired as an individual, on the other hand, can never be lawfully possessed by anyone except the original applicant. An individual cannot lend it to a friend to hunt in another blind on the same piece of property. An NFA Gun trust can name the applicant as the trustee and other Co-trustees can be named without violating the law.
Back in the olden days (before 2016) you actually had to get the CLEO to sign off on the application stating that you were not a prohibited person. The Gun Control Act of 1968 forbids gun sales to a prohibited person, which is defined as someone that could not pass a background check, had felony convictions, was adjudicated mentally deficient, was convicted of a domestic violence crime, or was a habitual illegal drug user. The problem with getting the CLEO to sign off was that there were some CLEOs in some jurisdictions that refused to sign off on NFA applications altogether. This effectively created a pocket ban on NFA firearms in those jurisdictions.
NFA Gun Trusts became popular prior to 2016 because a trust applicant was not required to get a CLEO to sign off and a trust applicant was not required to submit fingerprints. The ATF changed the rules in 2016 to require all applicants to submit fingerprints and to notify the CLEO of the area that you have filed an application. The CLEO is no longer required to “approve” an application or make a statement that the applicant is not a prohibited person. Now the rules require every Responsible Person named in the trust to submit finger fingerprint cards, a passport size photo, and to complete a “Responsible Person Form” submitted with the application.
Some NFA Gun Trusts do not meet our minimum standard of care. Good NFA Gun Trust are comprehensive. A comprehensive trust includes provisions about using the firearms when the trustee is healthy, when the trustee is incapacitated, and the distribution of firearms after the trustee dies. Physicians have figured out how to keep us alive so long a lot of people are living long enough to develop chronic disabilities and incapacity like Alzheimer’s and dementia. A gun owner that develops Alzheimer’s or dementia, through no fault of their own, has potentially become a prohibited person because the ATF defines a person adjudicated as a mental defective as prohibited. “Mental Defective” is a legal definition, and includes a person who lacks the mental capacity to contract or manage his own affairs.
These trusts contain provisions for what happens if a trustee or beneficiary becomes incapacitated. The a good trust will provide proper and legal direction to a successor trustee, such as instructing them not to transfer firearms to a prohibited person. A good gun trust also has provisions for naming successor trustees. There is a very important distinction between a trustee or co-trustee, and a successor trustee. A successor trustee does not have the authority of a current trustee, is not a Responsible Person under ATF interpretation of the NFA, and can not legally possess or control NFA regulated firearms. Not yet anyway. A successor trustee is specifically named by the person who created the trust to step into the role sometime in the future. Upon death, the successor trustee would file a form with the ATF to transfer the firearm to the designated beneficiary.
The trust can include conditions about preserving heirloom firearms, selling firearms, or distributing the firearms to Second Amendment charities. The trust can specifically describe which firearms go to which beneficiaries. NFA Gun Trust clients appreciate the ability to preserve their collections and ensure that their legacy is passed down and their passions are kept alive. These clients feel good knowing their legacy will endure and happier times can be remembered.
A good gun trust costs less than a good gun and it is a document that should last a lifetime or more. The same trust document can be used for an unlimited number of applications for NFA firearms. I’ve seen bad gun trusts that list one specific serial number and that’s it. We call those a one shot trust. A good attorney will draft you an NFA trust with terms and drafting specifically tailored for your specific circumstances, requirements, and needs. It will cover your family composition, your situation, and your future plans. If you have a relationship with a good attorney, he will know you and your situation. We live in an uncertain world, and things can change rapidly. A quality NFA trust will provide you with the ability to amend your trust, and adapt to changes in circumstance quickly and easily.