Americans love their firearms. This love affair has existed since well before the inception of the Second Amendment and is still going strong today. We can see evidence of it everywhere, permeating our culture from Hollywood movies to Tea Party Rallies and truck commercials. To many Americans, their firearms and the ability to possess them represent the exercise of a rugged individualism in the pursuit of happiness. However, many Americans are also concerned about the ills of irresponsible gun possession recently illuminated by such incidents like Columbine and Virginia Tech. Over the years, America has been conducting a spirited and often heated conversation with itself about the appropriate level of gun control. As result of this ongoing conversation, there has been significant legislation passed which places a number of restrictions on the ownership and transfer of firearms. While many of these laws serve a purpose in keeping dangerous firearms out the hands of unstable or malicious people, they also impose a significant burden on responsible owners who wish to enjoy the use of these guns.
Perhaps the most relevant Federal law regulating the purchase and transfer of firearms is the National Firearms Act (“NFA”). The NFA regulates the sale, use, possession and transfer of “Title II” Firearms, including machine guns, short-barreled shotguns and rifles, silencers etc … In order to make, manufacture, purchase or transfer Title II Firearms, one must file an application with the Bureau of Alcohol Tobacco Firearms and Explosives (“BATFE”) along with a $200 payment. However, the requirements don’t end there. BATFE also requires all individuals to obtain a signature from a Chief Law Officer (“CLEO”) as well as submit photographs and fingerprints for entry into the FBI’s database. These additional steps are often burdensome for the responsible gun owner.
With regard to the signature requirement, BATFE requires the CLEO to attest to the fact that he has no reason to expect the applicant to commit any wrongdoing with the weapon they are making or transferring. Furthermore, the officer must also state that the applicant will not be in violation of state or local law by possessing a Title II Firearm. Because of this, many CLEOs are reluctant to sign off on such transfers because they do not want to subject themselves to any potential liability in the future. Others may refuse to sign for political reasons. For instance, they may not like the idea of individuals arming themselves in their jurisdiction. Others may refuse to sign because they are unfamiliar with the documents or forms involved, or they may subject the applicant to stringent background checks in order to feel comfortable enough to sign off.
In addition to the CLEO requirement, the fingerprint submission requirement also complicates the transaction as well. For those of you who have ever had to submit fingerprints for a Federal background check, you understand the costs involved. The burden is not limited only to the cost of the fingerprint submission, but also the time involved in waiting for approval from the Federal Government, which can take several months. It is also not uncommon for fingerprints to be retaken as well, if the FBI deems the first set to be unsatisfactory.
One way to streamline this process is by creating a Gun Trust. A Gun Trust is an entity created for the purchase or transfer of Title II Firearms. According to the National Firearms Act, only individuals are subject to the fingerprint and CLEO requirements. Other entities, such as trusts, corporations and limited liability companies, are not subject to these requirements. Of these entities, the Gun Trust is usually the best suited for personal use as it does not have required costs or filings which must be submitted to state governments. Another living benefit of the Gun Trust is that it allows the creator to easily add additional trustees without filing a new application with BATFE. These additional trustees would have the same ability to utilize and possess these firearms.
Not only does the Gun Trust reduce the burdens in procuring Title II Firearms, but it also promotes responsible gun ownership. Often times when firearms are a part of a typical estate, the executor or trustee can get into trouble if they transfer the guns to an individual who is legally prohibited from receiving it (i.e. minor children, beneficiaries in other states, felons). The Gun Trust is designed to provide thoughtful instructions from the creator to the trustee to help guide them away from transactions which would subject the trustee to personal liability and violations of the law. Furthermore, the Gun Trust can be drafted to give the trustee more discretion to deal with changing circumstances where a beneficiary has exhibited behavior which would put his or her ability to handle firearms in doubt.
America’s love affair with guns does not mean that everyone should be able to have one. While our society is still struggling to determine how best to handle the issue of gun control, the Gun Trust does offer an avenue for responsible owners to efficiently acquire and transfer their firearms.
Brian Y. Chou is an estate planning attorney based in Southern California at the Law Firm of Barth Calderon, LLP.