The Best Way to Skin a Cat

No, I’m not really going to tell you how to skin a cat. The cat would never stand for such abusive behavior anyway. What I’m going to do is give another answer to the question, “Should I purchase a silencer as an individual or as the trustee of a gun trust?” As I’ve explained here and here, the answer to that question in my humble opinion, is yes, you should purchase any NFA item as the trustee of your gun trust. The other day, a new client told me why he had just purchased a gun trust from me. He reason was new to me. It made sense to me, so I’m passing it on to you.

bright bulb close up conceptual
Photo by Pixabay on Pexels.com

First, a little background. Both he and his wife were adding silencers to their gun collections. He, and maybe she, also planned to purchase more than one silencer this time and more in the future. In addition, he was preparing to submit a Form 1 application to make a short-barreled shotgun. As he said to me,

“I was concerned that I might get confused and inadvertently attach her silencer to my rifle. If I were to go hunting without her and have a run in with a ranger, I could get into trouble for a very simple mistake.” He continued, “by purchasing our silencers through a trust, neither of us has to worry about that.”

Of course, his rational only applies to situations like his. Still, one of the basic reasons to purchase NFA items through a trust–and to hold all your firearms in that trust as well–is to eliminate confusion. Confusion of the sort he worried about. The confusion that always reigns after someone dies–you, in this case. “What are we supposed to do with these silencers or short-barreled rifles? Your family will ask. A well-drafted gun trust will have the answer to those and other questions.

Actually, the more I think about this, I realize that one of the best reasons to own your firearms in a trust–all of your firearms, including NFA firearms and your regular firearms–is that in setting up the trust, you will have to give some serious thought to what firearms you own, who has access to them, who you want to receive those firearms when you die, and 1. whether they know anything about the rules and regulations governing firearms, and 2. whether they can legally possess firearms.

If you’re into firearms safety, those are always good questions to ask and answer. Establishing a gun trust incentivize you to do just that.

Responsible Persons Best Practices: Appointing Co-Trustees to Your Gun Trust

Introduction

If you’ve purchased a firearms trust from me, your trust–assuming it’s either a Gold or Silver trust–comes with two different trustee appointment forms: A Co-Trustee Appointment form and a Special Trustee Beneficiary Appointment form. The first form contemplates longer-term appointments. The latter form is for short-term appointments, as short as an afternoon of target shooting. The purpose of this best practices guide is to help you use those appointment forms appropriately.

My general approach is to counsel my clients to have one initial trustee in their gun trust; that’s almost always the person who purchases the trust from me. I then suggest that they can use the co-trustee form to appoint other trustees later—if they want. Once they’ve made the appointment, I explain, they can always revoke the appointment later.

Responsible Persons

After talking to some other gun trust attorneys, I’ve decided to lay out some co-trustee best practices in more detail for my clients, especially as it relates to the appointment and removal of co-trustees as those positions relate to a category of people referred to in firearms law as Responsible Persons.

  • Responsible Persons are those persons in a trust who must fill out Form 23 (the Responsible Person Questionnaire), and be fingerprinted and photographed.
  • Responsible Persons include Settlors (aka Grantors and Trustmakers), Trustees, and Co-Trustees.
  • Successor Trustees (those who become trustees when you die or become incapacitated) and Remainder Beneficiaries (those who get the guns when you die) are not Responsible Persons.  

Trustee Appointments

With that introduction, what are the best practices when using the trustee appointment forms that came with your trust? Here’s a brief summary:

  1. Co-Trustees (named in the original trust),
  2. Co-Trustees (appointed via the Co-Trustee appointment form), and
  3. Special Trustee Beneficiaries (appointed via Special Trustee Beneficiary appointment form)

will all be treated as Responsible Persons if they hold that office at the time of a Form 1 or 4 application and will have to submit a Form 23, fingerprints, and photos along with the initial/original trustee(s) of the trust.

If any of the three categories of trustees are appointed via appointment form or by amendment to the trust between the time of an application and the day it is approved, they should consult with NFA Branch, which almost certainly means filing a Form 23 etc.

None of the three categories of trustees, if they are added after the application is approved, have to file a Form 23 unless and until a new application is filed.

After an application is approved and before the next application (if any), best practice is to make short-term, temporary trustee appointments, using the Special Trustee Beneficiary form; otherwise, newly minted, long-term co-trustees should plan on filing Form 23, fingerprints, etc. at the time of the next application. They can, of course, resign their appointment rather than go through the process, but they shouldn’t plan on being re-appointed soon afterward, certainly not in a we’re-gaming-the-system-sort-of way. Substance trumps form in this case.

In all cases when you appoint a trustee, whether long-term or temporary, whether by amendment or by appointment form, always

  • have them sign the trustee declaration form, attesting to the fact that they are not a “prohibited persons,”
  • keep a copy of the appointment and declaration in your files, and
  • make sure they carry a copy/photo of the signed appointment when they are carrying the NFA item—always.

These three bullet points also apply to appointments of beneficiaries.

Important: when in possession of an NFA item, a trustee should also have evidence (copy or original or photo on phone) of the item’s tax stamp.

One final thought, just a reminder, I hope: Beneficiaries using an NFA item should always remain in a trustee’s presence. Co-trustees are free to roam.

In a later post, I’ll provide a handy table laying out these rules.

I Can Help

If you would like to explore these or other ideas further, schedule a virtual meeting with me by clicking on the red button in the lower right-hand corner of this webpage for a free consultation.

Be careful out there.

Webinar: The Care and Use of that Gun Trust & Ancillary Documents Tucked Away in Your File Cabinet

On Tuesday, April 6, 2021, you and your friends and family members. are invited to the first of what I hope will become an ongoing series of Gun Trust webinars. In fact, I will conduct two Gun Trust & Firearms Law webinars that day:

The GunTrust & Firearms Law Breakfast Webinar from 7:00 AM to 8:00 AM Mountain Time that morning, and

The GunTrust & Firearms Law Lunch Webinar from Noon to 1:00 PM Mountain Time.

In the webinar, I will review important provisions of your firearms trust and explain again how to use the various ancillary documents that may have come with your trust. There may even be time for questions.

 No need to attend both webinars because they will cover the same topic:

My intent is to conduct additional webinars on the first Tuesday of each month, webinars discussing the safe, proper, and legal use of firearms. More on this in another email on another day. For now, please sign up for either the Breakfast or the Lunch webinar at the links below. Again, feel free to invite family members and friends.

The Gun Trust and Firearms LawBreakfast Webinar – Tuesday, April 6, 2021, 7:00 AM to 8:00 AM Mountain Time

The Gun Trust and Firearms Law LunchWebinar – Tuesday, April 6, 2021, Noon to 1:00 PM Mountain Time

Important Notices:

Neither of these webinars establish a lawyer-client relationship, especially given the general nature and applicability of the information presented and the fact that both clients, friends, and family may attend. To state this another way: I will not be offering legal advice in any of these webinars; what I say in the webinars is of general applicability and not geared necessarily to your particular situation.

If you would like to talk to me about your specific situation, please contact me via email at gregory@gtaglaw.com or call me at 801-636-5264.

For those who wish to establish a firearms trust, you can read more about the three versions of firearms trusts I draft by visiting my website.

Yes, Virginia, there are firearms laws

I have a 233-page book on my bookshelf titled the Federal Firearms Regulations Reference Guide, published by the ATF. You can find your own copy here. That’s 233 pages of dense print on 8 1/2 X 11 inch pages, dense print of federal statutes, regulations, forms, and other information related to firearms law. Roughly 110 pages of the book contain the federal statutes and regulations. The rest includes a variety of circulars, rulings, and even a 30-page, extremely helpful Q&A section–extremely helpful.

It’s worth pointing out that the book contains just federal law. But worry not, the ATF’s website also sports links to every state’s firearms laws. Lots and lots and lots of laws.

I tell you that to repeat this: We don’t lack laws. What we lack–too often–is enforcement. According the Kevin Williamson,

What’s missing is ordinary, unglamorous, labor-intensive law-enforcement and public-health work — i.e., the one thing no one employed by government will seriously contemplate and no politician answering to government workers and their unions will seriously consider. Instead: We complain about “straw buyers” but rarely prosecute them; some federal prosecutors refuse as a matter of publicly stated policy to take a straw-buyer case unless it is part of a larger (sexier) organized-crime investigation. Chicago manages to convict fewer than one in five of those arrested on weapons charges. A New York Times investigation found that about 90 percent of the killers identified in New York murder cases had prior criminal histories, often histories of violent crime. (About 70 percent of New York’s homicide victims also had prior criminal arrests.) On and on it goes: Ordinary crime and ordinary criminals, ordinary bureaucratic failure, and the occasional act of armed histrionics to keep the headlines churning.

Note that I wrote “too often” above. I didn’t write “always.” That’s because the ATF itself is actually rather busy enforcing federal law as pointed out at the following links, that enforcement often involving felons illegally in possession of firearms.

Operation Legend Results in 22 Defendants Charged with Various Federal Charges

Shreveport Man Convicted by Federal Jury Sentenced on Firearms Charge

Collin County Man Sentenced for Firearms Violation in Connection with Teen’s Death

St. Petersburg Man Pleads Guilty to Possessing a Machine Gun

Springfield Man Involved in Nightclub Shooting Sentenced to 15 Years for Illegal Firearm

I could go on, but you get the idea. There are laws. When they’re enforced, they get results. There are those who quibble with John Lott’s claim, “more guns less crime.” Nobody can quibble with “more enforcement, fewer baddies with guns.”

Trusts and the People Behind Them

First, let’s discuss the parties or positions in a trust. To form a trust, you need at fill at least three positions. Nowadays, you can have as many as two more:

One or more Settlors/Grantors/Trustors/Trust Makers. The person (or persons) who creates the trust, whether during his or her lifetime or at death. In Wyoming and Utah, Settlor or Grantor is the preferred term, though the other terms are used as well. The terms mean the same thing. Utah’s definition reads, “’Settlor’ means a person, including a testator, who creates . . . a trust.” In contrast, Wyoming’s definition reads, “’Settlor’ means a person, including a testator, grantor or trust maker, who creates . . . a trust.”

The perfect trustee?

One or more Trustees. A fiduciary (either an individual or an entity) named in the trust document who holds legal title to trust property for the benefit of the . . .

One or more Beneficiaries. Person or persons, entity or entities, charities or otherwise, for whose benefit the settlor created the trust in the first place. The beneficiary may have a present, future, vested, or contingent interest in trust property. Beneficiaries may be income or remainder beneficiaries. Settlors can be beneficiaries of their trust.

Trust Protector. Someone named in the trust other than trustee with powers granted by the trust document, often including a limited power to remove the trustee, appoint a replacement, add beneficiaries, and maybe modify the trust. In other words, a trust protector is someone a trustee should pay attention to. Modern trusts often have trust protectors (and advisors, see below) to add flexibility to the trust.

Trust Advisor. Though the term is sometimes used interchangeably with trust protector, a trust advisor is more of an advisor than an enforcer, guiding the trustee in the exercise of her powers. That said, the place to define these two terms is in the trust agreement.

First, here are three important definitions and four basic types of trusts, especially as to the taxation of trusts:

Complex trust. A trust that either retains all current income or distributes corpus or makes distributions to charitable organizations.

Simple trust. As described in tax law, a trust that must distribute all income at least annually and which doesn’t provide for charitable distributions.

Grantor trust. A trust over which the settlor (aka the grantor) retains power to revoke or to control trust property. Consequently, the settlor/grantor is taxed on trust income. Most living trusts are grantor trusts.

Living trust. Also known as an inter vivos trust, a living trust is one established and funded during the settlor’s lifetime as opposed to a testamentary trust (see below), which comes into being upon the settlor’s death. A living trust can be either revocable or irrevocable. The settlor of a revocable living trust is typically also the initial trustee of the trust.

Revocable trust. A living trust over which the settlor retains the power to revoke the trust.  

Irrevocable trust. A trust over which the settlor retains no right to revoke. Irrevocable trusts are generally used to remove assets out of the taxable estate of the settlor. Once a settlor dies, his or her revocable becomes irrevocable. Likewise, once the creator of a testamentary trust dies, his or her trust is irrevocable.

Testamentary trust. A trust created by will and which comes into being upon the death of the testator or maker of the will.

Now, in no particular order, here’s a brief summary of many of the trusts in use today:

Charitable trusts. A trust for the benefit of a charity (government, educational, religious, and similar institutions). There are a variety of charitable trusts, including a charitable lead trust (CLT)—defined as a trust for a fixed period, during which the charity receives the trust income and after which, the remainder goes to a non-charitable beneficiary—or a charitable remainder trust (CRT), which essentially reverses those roles.

Irrevocable life insurance trust (ILIT). An irrevocable trust designed to own life insurance, so the insurance remains outside the insured’s estate and free of estate tax.

Pet Trust. A trust established to take care of the settlor’s pets in the event of the settlor’s death or disability.

Firearms or NFA Trust. A trust to hold firearms generally and National Firearms Act firearms specifically. Such trusts allow for the sharing of NFA firearms without violating transfer rules governing NFA firearms.

Special Needs Trust (SNT).  A trust designed to hold assets for the benefit of a beneficiary whose disabilities may allow the beneficiary to receive public assistance for medical and other care expenses.

Standalone Retirement Trust (SRT).  A trust designed to receive “qualified retirement accounts” like IRAs, 401(k)s, etc. It can be either revocable or irrevocable, and it’s designed to allow trust beneficiaries to defer income tax on the account for as long as possible—i.e., stretch the IRA. SRTs can be either conduit trusts (distributions flow through them and out to the beneficiaries) or accumulation trusts (any trust that is not a conduit trust).

Grantor Retained Annuity Trust (GRAT). A special type of irrevocable trust. The settlor/grantor establishes the trust, puts property in, and takes back an annuity (calculated as a dollar amount) for a specific amount of time based on the value of the property in the trust.

Intentionally Defective Grantor Trust (IDGT). An irrevocable trust that removes the value of the trust assets out of the settlor’s estate but allows the grantor/settlor to continue to be treated as the owner for income tax purposes. A big advantage of IDGTs is that grantor/settlor can add value to the trust by paying the income tax due on trust income without those tax payments being treated as additional taxable gifts to the trust.

By-pass or Credit Shelter Trust. Also known as the B Trust that holds that part of the deceased spouse’s estate that is applied against the deceased’s applicable exclusion amount, thus protecting it from estate taxes.

Marital Trust. Also known as the A Trust, this trust holds the portion of the deceased spouse’s estate that qualifies for the unlimited marital deduction. That portion will later be included in the surviving spouse’s taxable estate. The Marital and Credit Shelter Trusts are generally created by the trustee of the settlor’s Revocable Living Trust or Testamentary Trust upon the settlor’s death.

Qualified Personal Residence Trust (QPRT). This trust works like a GRAT except that the property transferred into the trust is the Settlor’s personal residence. The Settlor retains the right to live in the home for a specified number of years. At the end of the term, the Settlor must move out or begin paying rent to the trust, which goes to beneficiaries entitled to the trust property after the initial term.

Qualified Domestic Trust (QDOT). A form of trust that allows a taxpayer whose surviving spouse is a non-citizen to claim the marital deduction. To qualify, 1. at least one U.S. citizen must be a trustee, 2. the trust can’t allow distributions of principal unless the U.S. trustee has the right to withhold estate tax on the distribution, and 3. sufficient trust assets must be held in the U.S., among other things.

QTIP Trust. A trust that can hold qualified terminable interest property, property the settlor sets aside for the surviving spouse and which qualifies for the marital deduction.

Domestic Asset Protection Trust (DAPT). An irrevocable trust that allows a settlor to set aside assets in trust and protect those assets from creditor claims. The DAPT is established under the laws of states with favorable asset protection laws—Nevada, Alaska, South Dakota, Wyoming, and Utah, for example.

The Sounds of Silencers

In case you haven’t noticed, Washington D.C. is a sieve on a sinking ship whose life rafts have holes in them. And I’m not talking about Donald Trump. No, it’s the ATF, also known as the Bureau of Alcohol, Tobacco, Firearms, and Explsives, aka BATFE. But they’re going with ATF, and so are we.

On January 20, 2017–the day the Donald was inaugurated–Ronald Turk, Associate Deputy Director (Chief Operating Officer), issued a white paper, titled “Options to Reduce or Modify Firearms Regulations.” Right there on the coversheet, immediately below the words White Paper is the following warning: (Not for public distribution).

For those from another planet, those words mean “Not for public distribution.”

Anyway, here we are two weeks and three days later, and you’re reading about the white paper on my blog. Now you’re going to get to read a few actual paragraphs from the paper. But first I should quote the following, again, from the paper:

Note: The opinions expressed within this white paper are not those of the ATF; they are merely the ideas and opinions of this writer. They are provided for internal use within ATF and DOJ and not intended to be public. They are also general thoughts that cannot be taken as exacting language regarding policy or quotable specifics. Additional specific details can be provided to further these general discussions.

The men and women of ATF are overwhelmingly a fantastic group of hard working civil servants who look to reduce violent crime and ensure public safety. The focus on combating gun violence is key. Fairly regulating the firearms and explosives industries is also important. As the firearms conversations take place over the next few months and years, this paper is offered to provide informal insight on potential productive ways to limit regulation and continue to protect our Second Amendment freedoms, while focusing on ATF’s mission to protect our nation. (Italics and bolding in the original)

As Mr. Turk makes even clearer in the paper’s Executive Summary:

ATF is the only Federal law enforcement agency with a primary mission that directly involves an Amendment to the United States Constitution. Thus, our actions and policies are appropriately subjected to intense review and scrutiny. This paper serves to provide the new Administration and the Bureau multiple options to consider and discuss regarding firearms regulations specific to ATF. These general thoughts provide potential ways to reduce or modify regulations, or suggest changes that promote commerce and defend the Second Amendment without significant negative impact on ATF’s mission to fight violent firearms crime and regulate the firearms industry. This white paper is intended to provide ideas and provoke conversation; it is not guidance or policy of any kind.

ATF’s enforcement and regulatory efforts are focused on reducing violence and increasing public safety. Positive steps to further reduce gun violence through enforcement or regulation are extremely important but are not the focus of this paper. (Emphasis supplied)

Mr. Turk proceeds to list and discuss 16 items he feels  are worth looking at with the intent of possibly making some changes to the way the ATF fulfills its mission. For purposes of this post, item or paragraph #8 is the most interesting. I’ll quote it in full here:

Silencers: Current Federal law requires ATF to regulate silencers under the NFA. This requires a Federal tax payment of $200 for transfers, ATF approval, and entry of the silencer into a national NFA database. In the past several years, opinions about silencers have changed across the United States. Their use to reduce noise at shooting ranges and applications within the sporting and hunting industry are now well recognized. At present, 42 states generally allow silencers to be used for sporting purposes. The wide acceptance of silencers and corresponding changes in state laws have created substantial demand across the country. This surge in demand has caused ATF to have a significant backlog on silencer applications. ATF’s processing time is now approximately 8 months. ATF has devoted substantial resources in attempts to reduce processing times, spending over $1 million annually in overtime and temporary duty expenses, and dedicating over 33 additional full-time and contract positions since 2011 to support NFA processing. Despite these efforts, NFA processing times are widely viewed by applicants and the industry as far too long, resulting in numerous complaints to Congress. Since silencers account for the vast majority of NFA applications, the most direct way to reduce processing times is to reduce the number of silencer applications. In light of the expanding demand and acceptance of silencers, however, that volume is unlikely to diminish unless they are removed from the NFA. While DOJ and ATF have historically not supported removal of items from the NFA, the change in public acceptance of silencers arguably indicates that the reason for their inclusion in the NFA is archaic and historical reluctance to removing them from the NFA should be reevaluated.ATF’s experience with the criminal use of silencers also supports reassessing their inclusion in the NFA. On average in the past 10 years, ATF has only recommended 44 defendants a year for prosecution on silencer-related violations; of those, only approximately 6 of the defendants had prior felony convictions. Moreover, consistent with this low number of prosecution referrals, silencers are very rarely used in criminal shootings. Given the lack of criminality associated with silencers, it is reasonable to conclude that they should not be viewed as a threat to public safety necessitating NFA classification, and should be considered for reclassification under the GCA.

If such a change were to be considered, a revision in the definition of a silencer would be important. The current definition of a silencer extends to “any combination of [silencer] parts,” as well as “any part intended only for use in” a silencer. Compared to the definition of a firearm, which specifies the frame or receiver is the key regulated part, any individual silencer part is generally regulated just as if it were a completed silencer. Revising the definition could eliminate many of the current issues encountered by silencer manufacturers and their parts suppliers. Specifically, clarifying when a part or combination of parts meets a minimum threshold requiring serialization would be useful. (Emphasis and underlining added)

Have you ever shot a gun that had a silencer (aka suppressor). I have. Once. A 22 caliber handgun. Ffffft! Ffffft! Fffffft! The sound resembled a feral kitten defending itself. Ffffft! Ffffft! And just about as harmless. Surprisingly quiet, but then, why not? A 22 caliber handgun or rifle is pretty quite with or without a silencer.

A silencer on my 357 magnum? That’s another sound altogether. For the uninitiated, silencers don’t really silence anything. They simply suppress sound. Yes, James Bond uses a silencer to “eliminate” the sound of his kill. Hunters and marksmen, on the other hand, use silencers/suppressors to reduce the firearm’s retort so as to protect their ears. And the suppressor just barely does that job, reducing the sound to just below the number of decibels OSHA allows in the workplace. In other words, with the possible exception of the smallest caliber firearms, suppressors still allow for a big enough bang to damage a shooter’s ears over time.

And yet the knives–no guns for these folks–are already out, wielded by people who’ve seen one too many Bond flicks and whose motto is there’s no regulation too strong and too ineffectual for the gun industry.

Good news is, it’s sounding like the ATF might be thinking of listening to more rational people. Let’s hope so. Could save you $200 on your next suppressor purchase.

One Word: Neat – Silencer Shop’s Kiosks for NFA Trust Paperwork

I wrote about Silencer Shop’s kiosks a few months ago. Here’s a video that demonstrates how they work. The title of the video is a bit misleading. You don’t set up or buy an NFA firearms trust on the Kiosk, rather you initiate the government-required paperwork–your Form 4, for example– so you can use your trust to purchase an NFA item.

Want Your 2nd Amendment Rights Restored? There’s Hope.

get-out-of-jail-freeProfessor Eugene Volokh posted today about a decision handed down today by the 3rd Circuit Court of Appeals that answered the question on at least a few people’s minds: If I was convicted of a felony and if I’ve served my sentence, cleaned up my life, and stayed out of trouble, might I have my 2nd Amendment rights restored?

The short answer is no. The longer answer involves more than a few maybes. But if you’ve been a good boy or girl and if your felony conviction didn’t involve violence, your chances are better than zero.

The decision itself is quite long and Volokh’s discussion of it is rather complicated, so I won’t try to summarize either beyond what I’ve written above. But if you’re really interested, here’s a link to the case. If you’re just kind of interested, here’s a link to Volokh’s post. Enjoy.

41 F: Fingerprints and Photographs Quick as a Wink – Somebody’s Taking Care of Their Customers

WqrSS-660x657ell, somebody’s on the ball. The people at Silencershop.com just announced some new technology they developed that will make complying with ATF 41F much easier for the responsible persons of trusts and entities to submit their fingerprints and photographs.

Sometime before July 13th, when ’41F’ finally takes effect, Silencer Shop will ship out 300 fingerprint-scanning kiosks to select Silencer Shop ‘Powered By’ dealers across the country. Then, after July 13th, when a customer purchases a suppressor from the Silencer Shop website, they select their local dealer of choice, submit payment for both the suppressor(s) and NFA transfer tax(es) and if necessary, uploads their trust or LLC documents. In return, Silencer Shop will email each customer a unique QR code that they can take to those select Powered By dealers to scan and then follow the instructions to use the kiosk to capture an FBI-approved set of fingerprints. (Certain restrictions apply and will be outlined prior to launch.)

The customer’s prints are then securely transmitted to Silencer Shop’s headquarters and stored offline. All of your information is then submitted along with the BATFE Form 4 to initiate the transfer application process. The result is that customers and if needed, their ‘responsible persons’ (we’ll get to that part) will only have to be fingerprinted once no matter how many silencers they buy over the course of months and years to come. And since individuals no longer require a Chief Law Enforcement Officer (CLEO) sign-off, both individuals and entities will also be able to utilize the kiosk system.

The photograph requirement will be addressed by a custom Silencer Shop App for iOS and Android that will take passport-sized images that will also be transmitted to Silencer Shop HQ. Per the BATFE rules, every two years the photographs will be need to be retaken. Customers will simply use the Silencer Shop App to grab another selfie.

Sounds cool to me. Free enterprise at its best–in spite of the obstacles.

Required Reading, Then and Now

Jefferson LCBTwo things interest me about the two quotes below: First, that original material was written in 1764–in Italy–by Cesare Beccaria in his treatise On Crimes and Punishments. Yes, I know. It sounds like something right out of an NRA press release in response to yet another move by the [name your president] to implement by executive order more “common sense” restrictions on firearms. But no, Beccaria was a political philosopher of some renown, whose work many of the Founders thought important enough to use as source material for the founding documents of this nation. Jefferson, for one, copied the passage below into his Legal Commonplace Book, a sort of journal the author of the Declaration of Independence used to keep track of important ideas–I assume his and of others. Jefferson entered the Beccaria quote into his journal in the original Italian. The first quote below is the English translation of Italian, which appeared in in 1809 and which Jefferson owned.

That brings me to the second interesting thing: The two quotes are essentially the same quote from Beccaria, the first an 1809 translation, the second a 1963 translation. You can find the second all over the Internet. (I originally found it in a book I’m reading, That Every Man Be Armed by Stephen P. Holbrook, an excellent history of the Second Amendment, going all the way back to the Greeks and Romans.)

So you can easily notice the differences, I’ve color keyed the corresponding words in each translation. (And yes, I realize that the second translation has an ellipsis.) I prefer the second, newer, and I’d say more elegant translation. Whatever your preference, Becarria offers up some good food for thought, even today.

“A principal source of errors and injustice are false ideas of utility. For example: that legislator has false ideas of utility who considers particular more than general conveniencies, who had rather command the sentiments of mankind than excite them, who dares say to reason, ‘Be thou a slave;’ who would sacrifice a thousand real advantages to the fear of an imaginary or trifling inconvenience; who would deprive men of the use of fire for fear of their being burnt, and of water for fear of their being drowned; and who knows of no means of preventing evil but by destroying it.

The laws of this nature are those which forbid to wear arms, disarming those only who are not disposed to commit the crime which the laws mean to prevent. Can it be supposed, that those who have the courage to violate the most sacred laws of humanity, and the most important of the code, will respect the less considerable and arbitrary injunctions, the violation of which is so easy, and of so little comparative importance? Does not the execution of this law deprive the subject of that personal liberty, so dear to mankind and to the wise legislator? and does it not subject the innocent to all the disagreeable circumstances that should only fall on the guilty? It certainly makes the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack unarmed than armed persons.”

Though you can find the following translation of the quote by Paolucci in a number of places, I found it here.

False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes….Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.

For those who would prefer practicing their Italian, here’s the quote in Italian, as it appeared in Jefferson’s Legal Commonplace Book:

“Falsa idea di utilità è quella, che sacrifica mille vantaggi reali, per un inconveniente o immaginario, o di poca conseguenza, che toglierebbe agli uomini il fuoco perchè incendia, e l’acqua perchè annega; che non ripara ai mali, che col distruggere. Le leggi, che proibiscono di portar le armi, sono leggi di tal natura; esse non disarmano che i non inclinati, nè determinati ai delitti, mentre coloro che hanno il coraggio di poter violare le leggi più sacre della umanità è le più importanti del codice, come rispetteranno le minori, e le puramente arbitrarie? Queste peggiorano la condizione degli assaliti migliorando quella degli assalitori, non iscemano gli omicidi, ma gli accrescono, perchè è maggiore la confidenza nell’assalire i disarmati, che gli armati. Queste si chiaman leggi, non preventrici, ma paurose dei delitti, che nascono dalla tumultuosa impressione di alcuni fatti particolari, non dalla ragionata meditazione degl’inconvenienti, ed avvantaggi di un decreto universale.”

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