SOUTHERN GUN LAW GROUPSERVING NORTH CAROLINA, FLORIDA & TENNESSEEWHY EVERY GUN OWNER NEEDS A GUN TRUST

© 2016 GREGORY HERMAN-GIDDENS AND DENNIS BRISLAWN. ALL RIGHTS RESERVED.

Firearms are Important Tools of FreedomGun ownership speaks to basic concepts of freedom, individual liberty, and

other basic rights. You may own just one gun or many.You may use them for sport or self-defense.You may collect them or buy and sell them in business.You may own firearms that are family heirlooms.

Mere possession of a firearm by you or transfer of a firearm to another creates legal risk. Confusing and inconsistent gun laws expose you to the “accidental felony” – an oversight with criminal consequences.Why not use the law rather than fear it? We are here to help every gun owner stay safe and secure. Together, we will protect, preserve, and enjoy our 2nd Amendment rights.

You Use and Share Firearms… Family Members Friends, Roommates… or others with access Visitors & Guests Acquaintances at a range

Even “innocent” possession and transfer of a firearm between persons… can be CRIMINAL.

Do you know how these words are defined? Are they the same under Federal and State law?

People sometimes disregard laws they personally dislike.Gun crimes carry severe penalties.

Federal Firearms Law

Timeline of Federal Firearms Law 1791 Second Amendment Ratified 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."

1871 National Rifle Association Founded Union soldiers Col. William C. Church and Gen. George Wingate found the NRA to "promote and encourage rifle shooting on a scientific basis."

1934 National Firearms Act Regulates six categories of dangerous weapons. Currently is Title II of the Gun Control Act of 1968.

1938 Federal Firearms Act Congress aimed this law at those involved in selling and shipping firearms through interstate or foreign commerce channels. Established Federal Firearms License (FFL) system.

Timeline of Federal Firearms Law 1968 Gun Control Act It expanded recordkeeping and licensing

requirements, restricted certain sales and further defined persons who were banned from possessing firearms. The key element of this bill outlawed mail order sales of rifles and shotguns.

1972 Bureau of Alcohol Tobacco and Firearms Enforcement of the Gun Control Act was given to the Dept. of the Treasury's Alcohol and Tobacco Tax Division of the Internal Revenue Service, which was renamed.

1986 Law Enforcement Officers Protection Act Made it illegal for anyone to manufacture or import armor piercing ammunition, or "cop-killer bullets," which are capable of penetrating bulletproof clothing.

1986 Firearms Owners' Protection Act Eased restrictions on gun sellers and the sale of some guns. Imposed additional penalties for persons using a firearm during certain crimes and persons with robbery or burglary convictions who are illegally shipping guns.

Timeline of Federal Firearms Law 1990 Crime Control Act AG ordered to establish "drug-

free school zones," including criminal penalties for possessing or discharging a firearm in a school zone. Outlawed the assembly of illegal semiautomatic rifles or shotguns from legally imported parts.

1994 Brady Handgun Violence Prevention Act Five-day waiting period and background check before a licensed gun importer, manufacturer or dealer can sell or deliver a handgun to an unlicensed individual. Required a new National Instant Criminal Background Check System.

1994 Violent Crime Control and Law Enforcement Act "Assault Weapons Ban," this bill banned the manufacture, possession, and importation of new semiautomatic assault weapons and large-capacity ammunition feeding devices (or magazines) for civilian use.

Then, Two Key Cases 2008 District of Columbia v. Heller…

Washington D.C. Handgun Ban Dismissed... 2nd Amendment protects individual right to possess a firearm and to use it for traditionally lawful purposes…

2010 McDonald v. Chicago… 2nd Amendment applies to States and Local Government… provides Americans a fundamental right to bear arms that cannot be violated by state and local governments

History of the GCA

Titles I and II of the Gun Control ActFederal Law

Title I (1968) State Firearms Control Assistance, regulates interstate sales in firearms.

Title II National Firearms Act (NFA) is a regulates and imposes taxes on transfer of:• Machine guns• Short-barreled rifles• Short-barreled shotguns• Silencers• Any Other Weapons (AOWs)• Destructive Devices

History of the GCA During its first 150 years as a Federal union,

the U.S. had no national firearms legislation. A NRA supported bill was enacted as the

Federal Firearms Act of 1938. 52 Stat. 1250 (1938), codified at 15 U.S.C. Chapter 18.

But even with state laws requiring licensing, it proved to be difficult or impossible for States to prevent or punish violations of law.

History of the GCA GCA made it a crime for any FFL to transfer a firearm in

violation of State law. GCA channeled interstate/foreign commerce through

FFLs. GCA extended age restrictions to long guns as well as

handguns. GCA prohibited importation of all surplus military

firearms. GCA made it unlawful to transfer or possess a machine

gun, except for those made prior to 1986. 18 U.S.C. 922(o)

Key Concepts Under the GCA INTERSTATE COMMERCE

Defined as commerce between ay place in a State and any place outside of that State, or within any possession of the United States. 18 USC 921(a)(2).

STATE OF RESIDENCYMust be licensed to transfer/receive interstate

Brady Law 1993In November 1993 Congress amended the Gun Control Act of 1968 (GCA) by passage of the “Brady Law.”

Established the National Instant Criminal Background Check System (NICS), run by the FBI.

Background checks began November 1998.

Required for all firearms sales by FFLs to non-licensed purchasers.

“FIREARM”GCA

A. Any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;

B. The frame or receiver of any such weapon;

C. Any firearm muffler or firearm silencer, or;

D. Any destructive device.

NFAA. A shotgun having a barrel or barrels of less

than 18 inches in length; B. A weapon made from a shotgun if such

weapon as modified has an overall length of less than 18 inches in length;

C. A rifle having a barrel or barrels in less than 16 inches in length;

D. A weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;

E. Any other weapon, as defined in subsection (e);

F. A machine gun;G. Any silencer (as defined in section 921 of

title 18, United States Code); andH. Any destructive device.

GCA Firearms Pistols, Revolvers Rifles, Shotguns Frames or Receivers * Machineguns (except

conversion kits) Silencers, including parts Destructive devices All other weapons that expel a

projectile by the action of an explosive

NFA Firearms Short-barrel Rifles Short-barrel Shotguns *Machineguns Silencers, including

parts Destructive devices Any other weapon

Machinegun Conversion Kits and Machineguns that expel a projectile by the action of a propellant other than an explosive

PROHIBITED PERSONS Federal law states that a

“prohibited person” cannot possess a firearm. There is a federal process for restoration of gun rights that may not precisely match state law.

State law also defines prohibited persons as well as stating conditions for restoration of rights.

Persons Such as…─ Felons and certain convicts (check

the definitions!)─ Fugitives─ Drug addicts─ Mental defectives─ Many aliens

Person Who─ Was dishonorably discharged─ Renounced citizenship─ Is subject to restraining order ─ Was convicted of domestic violence

APPLIES TO ALL FIDUCIARIES AND BENEFICIARIES!

North CarolinaFIREARMS LAWS

North Carolina Gun Laws – Part 1 North Carolina gun trusts may include both NFA weapons and non-

NFA weapons. Gun storage laws – Firearms must be locked and out of the reach of

children. As of 2013, possession of firearms in establishments where alcohol is

served is now permitted. Firearms may also be locked in a vehicle on state and university properties.

Handgun transfers (gifts) require a permit. (Unless recipient has a concealed carry license)

Since July 1, 2014, court clerks are required to report to the federal government all individuals who are disqualified from owning a gun after a background check.

North Carolina Gun Laws – Part 2 Self Defense Laws: North Carolina Castle Doctrine. Only legal if the

victim is inside their own home, automobile and workplace, and the intruder enters.

As of October 1, 2013, legislation makes it legal for hunters to use suppressors.

As of October 1, 2013, Senate Bill 549 Gun Privacy added language to preserve privacy of gun permit requests and firearms sales Offers records to law enforcement agencies upon request Information is not public record

Firearms may be part of a probate estate, even with a Will, if they were not included in a gun trust; and any transfers must be documented as part of the probate file. With a North Carolina gun trust, there are no probate proceedings and no public records are made.

North Carolina Gun Permits Handgun purchase permit

21 or older Pass criminal background check Apply in the county of residence

Concealed handgun permit (reciprocity laws recognize permits issued in other states) All purchase permit requirements above apply Firearms training and safety class requirement Mental and physical health check requirement

What about state law? NFA items you can own in NC (ATF approval required):

Silencers Short-barreled rifles Short barreled shotguns Machine guns* AOWs Destructive devices

NOTE: Keep a copy of your tax stamp with NFA items!

*Sheriff’s permit required in some cases.

Every time a transfer of a handgun takes place, the buyer (recipient) must hold a valid permit and the seller (giver) is required to hold a copy of the permit indefinitely. Under North Carolina gun laws, this applies to every transfer of pistols, whether or not the weapon was transferred from a private party or between relatives.North Carolina Gun Law Requirement

Why Every Gun Owner Needs a Trust To provide written instructions specifically telling

others how to lawfully distribute To avoid an “accidental felony” under Federal and

State firearms laws You retain control To avoid probate and maintain privacy To have the right person manage your firearms if

you become incapacitated or die To protect your firearms legacy now and into the

future

Gun Trust BasicsLet’s go over a few different ways to own a firearm.

Individual OwnershipPRO• No need to register or

file• No rules or guidelines

• Probate• Accidental Felony

CON• No clear gun instructions• Can you lawfully “share”

or loan firearms?• Risk of accidental

felony?• Risk of CLEO turn-

down for NFA firearms

Entity OwnershipPRO• Provides rules or

guidelines• Avoids CLEO signoff for

NFA firearms• May provide asset

protection• May avoid probate

CON• Adds expense and

complexity• Adds documentation

Entity OwnershipCorporations, LLCs, and some partnerships must file annual reports and pay an annual license fee.

Gun-specific versions are used for ownership with friends & business.Require formalities to work as intended.

Trusts are private, informal, and flexible, with no annual reports or filing requirements. They are easy to amend. They avoid probate and allow many options in how firearms may be passed on.

A trust is the preferred solution for private firearms ownership.Can be revocable or irrevocable to address different goals.It should be built for the purpose!

Free gun shop trusts, Internet trusts, etc.

ANY CONVENTIONAL LIVING TRUST IS DANGEROUS!- They are generic and without firearms-specific guidance- They permit or direct illegal transfers- They permit prohibited persons to possess firearms- They are often invalid, incomplete, or defective.- Free ones lack a knowledgeable gun trust lawyer behind

it when trouble comes your way.

IS IT WORTH IT TO TAKE THESE RISKS?

Your choice – it’s America!WARNING, WARNINGDANGER, WILL ROBINSON…

What is a “real” Gun Trust?

It’s more than just a revocable living trust, that you establish, you run, for your benefit and that of selected others.

A “real” Gun Trust is a special revocable living trust expressly designed to own firearms and accessories.

It should help YOU, and your loved ones and friends, to enjoy your firearms without accidentally committing possession or transfer penalties.

A trust is like a legal box that stores your gun stuff for you…with detailed guidance and instructions to avoid accidental felonies and protect your guns and gun rights!

A Gun Docx® Trust Avoids Accidental Felonies By:1. Holding LEGAL TITLE to regulated and non-

regulated firearms2. Allowing only LEGAL BENEFITS for those you

select3. Allowing only LEGAL TRANSFERS of firearms by

gift, sale, or sharing4.Shifting responsibility/personal liability

to a Trustee in possession (so long as YOU are not also negligent.)

A trust must obey both Federal & State law!

Why You Need a Gun TrustWHAT WE NEED TO THINK ABOUT…and PLAN FOR! Possession and Transfer Issues Competency with Firearms Law…and what

you can and cannot do…and what if someone else is acting for you?

Failure to understand these concepts can expose you or others to criminal AND/OR civil liability

Why You Need a Gun TrustThe Planning Issue is to keep you and others SAFE in possessing and transferring firearms.CONSIDERThe Firearm

Handguns, rifles, shotguns, or NFA under Federal & State law

The Person(s) Involved Experience and Knowledge Prohibited or Not under Federal & State Law

Possession, Transfer & Prohibited Persons What is Actual vs. Constructive Possession?

TransfersReview “transfer” under both State and Federal LawRemember, the term “transfer” is broadly defined and may include “selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of” a firearm.

Review Prohibited Persons What guidance and control systems are in place to

protect you and others who will interact with your firearms?

Liability Issues What liability can a Trustee of a gun trust

have?Negligent EntrustmentNegligent MaintenanceTransfer to a Prohibited PersonCriminal PossessionTransfer to a State where firearm is illegal

HELP FAMILY & FRIENDS BE SAFEProvide Written Guidelines

Use a Trust & Minimize Liability Issues Provide & Maintain Written Trust System Educate Trustees

Legal requirements in your state Trust requirements Administration process and procedure Forms

Educate and Document Beneficiary Use Legal requirements Trust requirements Legal capacity Conditions of use

Maintain Firearms!

Why is a Gun Docx® Trust the Best Choice? It was created by a nationally recognized gun law attorney

with the help of other attorneys. It is specifically written to lawfully possess and enjoy

firearms. There is a trust version to fit every goal and budget. It is customizable and easy to amend or update. A local attorney helps you create it and then supports it. It is a national system, and your attorney has a network of

attorneys to help if you move or have multistate issues. Gun Docx® is constantly improved by attorney and client

input so it can stay current as gun laws evolve.

Gun

Docx

®

Trus

ts•Designed to help simplify acquisition of NFA-regulated firearms permitted in a given state.•Relies in simple beneficiary language, laws of guardianship, or intestacy.•Designed to be relatively simple, but far superior to “free” or cheap gun shop or certain online trusts.

Bronze+ (NFA-only)

•Offers the best combination of benefits and planning options for most gun owners.•Names contingent beneficiaries, contains detailed guidance, reference materials, trust decanting provisions.•Uses tangible personal property memorandum, outright disposition.•Includes attorney consult

Silver (Mainstream,

Complete Plan)

•Designed for those with larger collections and complex goals, such as multi-state firearms ownership, separate planning for individual beneficiaries, and dynasty collecting and usage by families.•More extensive attorney consultation and customization.

Gold (Collectors, Multi-state,

Dynasty Plan)

Editions of the Gun Docx® TrustImportant Provisions 

BRONZE+ SILVER GOLD

1. You are Maker of Trust Yes Yes Yes

2. You are Trustee of Trust Yes Yes Yes

3. You are Beneficiary of Trust Yes Yes Yes

4. Trust can be amended/restated Yes Yes Yes

5. People you shoot with are considered beneficiaries of your Gun Docx® Trust

Yes Yes Yes

6. Contains detailed definitions and guidance NFA-only Yes Yes

7. You can easily add or delete additional Beneficiaries including charities

Death beneficiaries only Yes Yes

8. Allows gifts of specific firearms to specific people at death by memo

No Yes Yes

9. Standalone firearms estate plan (i.e. can distribute at death without relying on your formal estate plan)

Yes Yes Yes

10. Avoids probate Yes, NFA-only Yes, if properly funded Yes, if properly funded

Editions of the Gun Docx® TrustImportant Provisions 

BRONZE+ SILVER GOLD

11. Plans for ALL Firearms NFA Only Yes Yes

12. Trustee succession fully stated in Gun Docx® Trust Limited Customization Some Customization Yes

13. Permits Common Trust for Multi-generational Collections No No Yes

14. Permits Individual Trust Shares No No Yes

15. Contains Investment Powers No No Yes

16. Contains disclaimer and power to appoint property options

No No Yes

17. Provides for a continuing trust to serve as “Dynastic Family Armory”

No No Yes

18. Provides for multi-state Firearms Ownership of specific NFA Items

No No Yes

19. Trust Protector Provisions to allow non-judicial revisions No No Yes

Anatomy of a Gun Docx® Trust BinderIntroduction

Overview Reference Materials

Gun Docx® Trust Agreement

Instructions to Trustee

Trust Assets Schedule A (NFA-regulated items) Schedule B (Non-NFA items)

Funding Documents Assignment (Generic) Bill of Sale (Specific Items)

Tax Filings BATFE FORM 4

Transfers of Interests Forms to Add & Remove Beneficiaries Tangible Personal Property Memorandum

Other Documents

A PURPOSE-BUILT TRUST FOR YOUR FIREARMS COLLECTION

PROTECT YOUR FAMILY AND YOUR GUN RIGHTS

SOUTHERN GUN LAW GROUPSERVING NORTH CAROLINA, FLORIDA & TENNESSEE

Twitter: @SouthernGunLaw#guntrustdaywww.southerngunlawgroup.com

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