(State) Constitutional Rights to Bear Arms

We sometimes forget–I do, anyway–that the US Constitution is not the only or even the first written constitution in the United States. The US Constitution was ratified on June 21, 1788, the day New Hampshire became the ninth state to ratify it. The first written constitution in what became the United States was Connecticut’s “Fundamental Orders,” written in 1638, superseded in 1662, by the Charter of Connecticut. New Hampshire is the first independent state to have a written constitution, ratifying its constitution on January 5, 1776. It was replaced on June 2, 1784, by its current constitution, which contains the following words:

All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.

I’m licensed to practice in Wyoming, Utah, and Michigan. I practice in the first two states. Interested in their constitutional history as it relates to the right to bear arms, I look at each of their constitutions. Here, for your reading pleasure, is what I found:

Wyoming: Article 1, Section 24 Right to Bear Arms

The right of citizens to bear arms in defense of themselves and of the state shall not be denied.

Utah: Article I, Section 6.  [Right to bear arms.]

The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms.

Michigan: Article I § 6

Every person has a right to keep and bear arms for the defense of himself and the state.

Whole books can be and probably have been written on the bolded words in these three articles. I have to tell you that I’m really interested in what Utah’s courts have said about that last sentence in Utah’s contribution to the genre, especially in what the word “defining” means. If and when I find out, I’ll get back to you.

By the way, here’s the Second Amendment to compare:

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.

I love the Second Amendment, but for my own personal protection, I’d choose any one of the three states’s declaration of my right to bear arms as my first line of defense in any prosecution for violating firearms law.

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.

Gun Laws: Why Not Enforce What We Have?

This is not a story about Hunter Biden. No, in this post, Hunter is simply a proxy for what’s wrong with the common-sense gun laws chant. It ignores a big problem with gun laws: Too often, they are not enforced, and even when they are, enforcement is often not evenhanded. The powerful, the connected, get waved through. The rest of us, well that’s why we have little people.

Case in point: Hunter Biden and his missing .38 revolver. From Politico:

POLITICO obtained copies of the Firearms Transaction Record and a receipt for the gun dated Oct. 12, 2018.

Hunter responded “no” to a question on the transaction record that asks, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” Five years earlier, he had been discharged from the Navy Reserve after testing positive for cocaine, and he and family members have spoken about his history of drug use.

Lying on the form is a felony, though prosecutions for it are exceedingly rare.

Take a look at the the first paragraph of the 2018 GAO report at that “exceedingly rare” link. Politico wasn’t kidding:

Investigations and prosecutions. Federal and selected state law enforcement agencies that process firearm-related background checks through the National Instant Criminal Background Check System (NICS) collectively investigate and prosecute a small percentage of individuals who falsify information on a firearms form (e.g., do not disclose a felony conviction) and are denied a purchase. Federal NICS checks resulted in about 112,000 denied transactions in fiscal year 2017, of which the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) referred about 12,700 to its field divisions for further investigation. U.S. Attorney’s Offices (USAO) had prosecuted [just] 12 of these cases as of June 2018. (Emphasis supplied)

See the problem? All the time, I mean all the time, people complain about how that shooter got this gun or this shooter got that one? Here’s a guy–a well-connected guy, no less–who apparently lied and thereby skirted the vaunted background check, and everybody knows about it now–and yet, he’s free.

For now. Who knows? Maybe he’ll be charged sometime in the future. But now, he’s just one among hundreds of thousands of persons who are not being prosecuted for giving false information on Form 4473, the Firearms Transaction Record, the form that initiates the background check. Want to get serious about background checks? Get serious about prosecuting lies on Form 4473.

By the way, how would you respond to the questions on Form 4473? Check yourself out at the link. Hunter’s apparent lie was in response to question 21 e. on the form.

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.”

What was it Forest Gump Said?

Oh, yeah. “Stupid is as stupid does.”

Domestic Abuse(r) Beat Down

“There ought’a be a law!”

There is:

Domestic Violence Abuser Sentenced to 10 Years For Unlawful Possession of a Firearm
 
A convicted domestic violence offender discovered with a firearm was sentenced last week to 10 years in federal prison, the statutory maximum sentence, following an investigation by the ATF Dallas Division, announced U.S. Attorney for the Northern District of Texas Erin Nealy Cox.  

Desmond Greer, 26, pleaded guilty in March to possession of a firearm by a convicted felon.

Dallas County Court records show that in in 2016, Mr. Greer was twice convicted of Assault Family Violence after repeatedly punching and choking the 22-year-old mother of his children – two offenses that disqualified him from having a gun.

In fact, that law is used quite frequently.

KCK Man Sentenced to 7+ Years for Unlawful Possession of a Firearm

KANSAS CITY, KAN. – A Kansas City, Kan., who barricaded himself in an apartment when police responded to a call of a domestic disturbance, was sentenced today to 94 months in federal prison, U.S. Attorney Stephen McAllister said.

Nikko D. Pike, 38, Kansas City, Kan., pleaded guilty to one count of unlawful possession of a firearm by a felon. In his plea, he admitted that on April 2, 2017, he was involved in a domestic disturbance with a woman. During the argument he discharged a .40-caliber Smith & Wesson that required the victim to seek treatment in an emergency room at University of Kansas Medical Center.

The 4th Circuit Takes on the 2nd Amendment

The 4th Circuit Court of Appeals, the circuit responsible for hearing appeals from Federal District Courts in the Virginias, the Carolinas, and Maryland, just ruled on a case involving the regulation of semi-automatic assault weapons. The Court sided with the state of Maryland, upholding its ban on such weapons, “reasoning”:

that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach. See 554 U.S. at 627 (rejecting the notion that the Second Amendment safeguards “M-16 rifles and the like”). Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.

As Charles W. Cooke, writing in National Review, argues,

As Judge Traxler’s dissent pointedly establishes, the majority achieved this transformation by contriving “a heretofore unknown ‘test,’ which is whether the firearm in question is ‘most useful in military service.’” In effect, this “test” is designed to permit judges to determine that any weapon they might dislike is unprotected by the Second Amendment and can therefore be prohibited with impunity. Forget that Heller contains its own explicit tests. Forget the “common use” standard. Forget “dangerous and unusual.” There’s a new kid in town, and he’s coming for your rifles.

What counts as “most useful in military service” under this rubric? Well . . . everything, theoretically. “Under the majority’s analysis,” the dissenters contend, “a settler’s musket, the only weapon he would likely own and bring to militia service, would be most useful in military service — undoubtedly a weapon of war — and therefore not protected by the Second Amendment.” Indeed, “the ‘most useful in military service’ rubric would remove nearly all firearms from Second Amendment protection as nearly all firearms can be useful in military service.” A standard semi-automatic handgun is plausibly “most useful in military service.” So, too, is a hunting rifle. So is a sword. Perhaps the Fourth Circuit would like to strip the constitutional protection from those weapons, too?

We’ll see if this opinion stands once Judge Gorsuch takes his seat on the Supreme Court. (One only has to remember Ted Kennedy haranguing Judge Bork to realize that, qualified as he is, Gorsuch’s path to that seat is fraught with more haranguing.)

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.

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