NFA Firearm Trust FAQs

NFA firearm trust FAQs
Do you have questions about NFA firearm trusts?

Here are a few of the most common questions I receive about NFA (National Firearms Act of 1934) firearms and NFA gun trusts:

If I’m carrying an NFA firearm in Florida, and am stopped by a LEO (law enforcement officer), what do I need to produce to prove that I legally possess that item?

Technically, you have no obligation to prove ownership to a police officer, sheriff, deputy, or FWC officer. Only the ATF and perhaps the IRS have the legal authority to demand to see your tax stamp. But, unless you potentially want to spend a night in jail, common sense dictates that you produce a copy of your tax stamp. That’s all that’s required. You don’t have to carry around a copy of your trust. (Although, I do have several clients who store a copy of their trust and their tax stamps in the cloud so they can access them if absolutely necessary). Keep your original tax stamps somewhere safe, put a copy in your binder, and keep a copy with the weapon AT ALL TIMES.

I’m at a range with friends and my NFA regulated weapons are present. Can my friends legally handle and fire those items?

As long as your have your tax stamp in your possession and the weapons are within a few feet of you, you can share away. This is true whether your NFA weapons are in a trust or not. However, if none of those people are named as current trustees in your NFA firearm trust document, the law is strict – within your presence means within your presence. As long as those NFA weapons are where someone who isn’t legally authorized can touch them, you can’t leave the immediate area to go to the bathroom, buy more ammo, or grab something from your car.

I have a friend who I know is a responsible non-NFA gun owner. He’d like to use one of the NFA regulated firearms in my trust for an afternoon at the range when I cannot attend. My brother has also asked me whether he can take it on a hunting trip if I’m not with him. Can I let them borrow an NFA firearm that’s in my trust?

It depends on how your NFA firearm trust document is written. Some are written to allow the Grantor/Trustee (you) to appoint a temporary special trustee and lifetime beneficiary. This person can possess and use the trust property for a certain period of time while you’re still alive, but has no power to sell or otherwise transfer the property and has no power over the trust document. Other trusts make no provisions for a special trustee. Consult with the attorney who drafted your gun trust to see if it’s allowed and what you’d have to do to make it legal.

Of course, NFA firearms that are owned by individuals – not trusts – can never be loaned to anyone who isn’t a couple of feet away from the registered owner.

What are the legal risks to the trust and to me if there is a mishap involving a NFA weapon?

Most NFA firearm trusts are revocable living trusts, which means the trust provides absolutely no liability protection to you or anyone using any of the guns – NFA firearm or not. If you loaned the firearm to someone else, you’ll probably be sued. To protect yourself, do your due diligence and make sure the person you loan any weapon to isn’t a criminal and doesn’t have a history of carelessness, drug or alcohol abuse (remember – medical and recreational marijuana users are prohibited from possessing any guns), anger issues, domestic violence, etc).

 

Medical Marijuana and Gun Laws: One Toke Over the Line

Medical marijuana and gun laws are mutually exclusive.
Medical marijuana and gun laws are mutually exclusive. You have to choose one or the other.

Medical marijuana and gun laws don’t play well together.

Medical marijuana has been legal in Florida for a while. First we had a statute that allowed terminally ill people to use a non-smoked, low-THC form of Mary Jane. Then on November 8, 2016, Florida voters approved a constitutional amendment (effective July 1, 2017) that extended the use of medical marijuana to people with “debilitating illnesses,” such as glaucoma, HIV, AIDS, PTSD, ALS, Crohn’s disease, Parkinson’s disease, multiple sclerosis, and other illnesses and conditions. That’s a lot of people who are now able to use medical marijuana to ease their symptoms.

In addition, some Florida cities such as Miami Beach and Tampa, have decriminalized the possession of a small amount of illegal weed, making it a civil offense rather than a criminal offense.

But what few people are talking about is how using recreational or medical marijuana and gun laws affect each other.

Florida can pass all the pro-marijuana laws it wants, but pot’s still a Schedule I controlled substance under Federal law – and Federal law trumps state law when it comes to drugs. And guns.

So, I’ll make this easy for you. Marijuana use = no gun possession. Period. End of discussion. It doesn’t matter what the state says. And here’s why…

The federal law governing who can and cannot possess and own firearms (18 U.S.C. § 922(g)(3)) prohibits possession or ownership by a person who is “… an unlawful user of or addicted to any controlled substance (as defined in section 802 of the Controlled Substances Act (21 U.S.C. 802)).” We’re talking about the unlawful user here – which means either 1) the user of an illegal controlled drug, or 2) the wrongful user of a legal controlled drug (i.e. taking legal drugs prescribed for someone else).

The Controlled Substances Act (1970) divides drugs into five Schedules depending on the drug’s perceived usefulness for medical reasons and its addictiveness. Marijuana is a Schedule I controlled substance – along with heroin, LSD, peyote, mescaline, etc. All Schedule I drugs are illegal to prescribe and use under federal law. (Doctors who write prescriptions for these drugs can lose their DEA license; so, in states where medical marijuana is allowed, they generally merely “recommend” it instead).

So, if you use medical marijuana, you are automatically an unlawful user of a controlled substance and cannot possess, use, buy, sell, gift, or otherwise transfer firearms. You are now a prohibited person under federal law (18 U.S.C. § 922(g)(3). The mere possession of a firearm by a prohibited person is a crime, and you MUST disclose your illegal drug use on ATF Form 4473 when you buy, sell, or otherwise transfer a gun through a FFL. Failure to disclose your use of marijuana (medical or otherwise) is a federal felony. In a private transaction, if the seller knows or has reasonable cause to believe the buyer uses marijuana (medical or otherwise) the transaction cannot be completed without both parties committing a felony (18 U.S.C 922(d)).

Additionally:

  • If you own an NFA weapon in your individual name, such as a silencer or SBR, it becomes contraband as soon as that recommendation letter, medical marijuana card, or ticket for illegal pot possession is issued.
  • If you own an NFA weapon in a gun trust, you can no longer be a trustee or lifetime beneficiary of that trust (you might be able to be a death beneficiary of someone else’s gun trust if appropriate language is added to the trust to prevent possession by a prohibited person).
  • As a prohibited person, you cannot have control of any firearms if you’re the personal representative (executor) or trustee of someone else estate or trust – which means you can’t legally sell the guns.
  • If your spouse or child is taking medical marijuana, he or she cannot have access to any of your weapons or know your safe combination. All your estate planning documents should be reviewed to ensure that any such prohibited persons are removed from certain roles or additional language is added to prevent an accidental felonies.

I know some of you are reading this and thinking, “This is just stupid. People who need medical marijuana won’t care about their gun rights.” Some may not, but some may. This won’t affect just terminally ill people any more.

Or you might be thinking, “I’ve smoked/I know people who have smoked pot for years and I/they still own guns. No one’s going to catch me.” Maybe, maybe not. I’m just educating you on the law – following it or breaking it is always your choice. Do you know for sure that state-issued medical marijuana cards or tickets for pot possession won’t ever be submitted to the NICS background check system? Do you trust your government to protect your individual Second Amendment rights? Are you aware of what’s been happening to the right to self-defense for certain veterans and the disabled?

Here’s the letter the ATF sent to all FFLs back in 2011 when states first started “legalizing” medical marijuana. Pretty cut and dried, and no newer guidance has been issued. The fact is that until ganja is removed from Schedule I, it’s an illegal drug under federal law.

If you’re a Florida gun owner and anyone in your immediate family is unfortunate enough to need medical marijuana, please be sure to plan ahead before obtaining that card.

If you’re wondering how medical marijuana affects your Florida concealed carry license, see this article.

Choose: Concealed Carry License or Medical Marijuana Card

Marijuana and Concealed Carry Gun
Medical marijuana and concealed carry – you can’t legally have both.

“Can I keep my guns if I have a medical marijuana card in Florida?” “Can I get or keep a Florida concealed carry license if I have a medical marijuana card?”

I’ve been getting these questions a lot lately. There seems to be an inclination for people to try to find some wiggle room in the laws… “But, medical marijuana (MMJ) is legal in Florida,” or “But, if my neighbor can use opioids and have a gun, why can’t someone who is prescribed medical marijuana have a gun?” or, my favorite, “But what if no one finds out?”

That’s the sound of my eyes rolling.

The law about any kind of marijuana and firearms is cut and dried. There is no wiggle room. If you use medicinal or recreational marijuana, you cannot legally possess, buy or use firearms or ammunition. Period. End of discussion. It’s a choice you have to make – pot or guns. You can’t legally have both.

State laws don’t matter much when it comes to firearms; the federal laws preempt them, and the federal laws make all marijuana an illegal Schedule 1 drug. Doctors can’t prescribe Schedule 1 drugs and keep their DEA licenses. (The states got around that by having doctors merely “recommend” MMJ). And federal laws prohibit users of illegal drugs from buying or possessing firearms.

The ATF sent a letter to all federally-licensed firearms dealers back in 2011 making it very clear that anyone using (or reasonably believed to be using) marijuana – even if their state “legalized” it – is prohibited from “shipping, transporting, receiving, or possessing firearms or ammunition.” The ATF has not changed its stance since that time. And there’s a legal presumption under current federal law that a state medical marijuana card holder is an illegal marijuana user for the purposes of firearms possession, purchase, etc. (see Wilson v. Lynch).

Of course, I hear people say all the time, “It’s only illegal if I get caught.” Well, yeah. That’s true of all laws. We weigh the costs and benefits of complying with laws every day. We may choose to speed because when we weigh the chance of getting caught and the potential cost of a $100 ticket versus the endorphin rush, we’re willing to take the risk. But fooling around with federal firearms laws isn’t like gambling against getting a $100 ticket – if you get caught it can result in felonies, large fines, and federal prison time.

If you own guns and are considering getting a medical marijuana card (or already have one), and you have any concerns about breaking laws, you need to get rid of them. Sell them. Give them away to your spouse, your adult children, your friends and family. You don’t necessarily have to go to an FFL – private gifts and transfers are legal in Florida (as of today). But I’d recommend that you have some sort of proof that you don’t own them – even a handwritten, signed bill of sale.

If you have a good gun trust, you could resign as trustee and physically transfer all your guns to your successor trustee. While you cannot possess or use those guns as long as you have a MMJ card, at least your family can still use and inherit them (see a gun trust lawyer to ensure it’s done properly).

Currently, we don’t have gun or MMJ registration lists in FL, but as our state becomes bluer, that could change. Hawaii had a big problem when they cross-referenced their MMJ list against their gun registration list and demanded that MMJ users give up their guns. The uproar made them back off – no government agency was willing to go door-to-door to confiscate guns. But now, with a definite trend toward anti-gun political policies and a proliferation of so-called “red flag” laws, we’re getting closer and closer to government confiscation for “safety” reasons. And, as any first-year law student could tell you, safety is whatever the government says it is.

As for the Florida concealed carry license, some people (including myself) have pointed out that the application never specifically asks about medical marijuana use. Even the Possible Reasons for Ineligibility section of the Dept. of Agriculture’s website says nothing about marijuana use of any kind. Both are careless oversights that could easily be corrected. But if you read the website and application carefully, you’ll notice several disclaimers that indicate that you’re responsible for reading and complying with Fla. Stat. 790.06.  Fla. Stat. 790.06(2)(n) essentially says “Hey, in addition to this really long list of reasons why you wouldn’t qualify for a Florida concealed carry license, you also can’t be prohibited from buying or possessing a firearm under any other Florida or federal law.” Oops. As you know, ignorance of the law is no excuse. Carelessness on the part of the Dept. Of Agriculture is also no excuse. If you use any marijuana or have a MMJ card (remember the ATF letter and the court’s “presumption” ruling), you can’t legally obtain or keep a FL concealed carry license because you’re breaking federal firearms laws.

And don’t rely on the people in the MMJ dispensaries, on the MMJ blogs and websites, or the MMJ doctors to provide accurate legal advice regarding firearms law. They have a financial agenda and they aren’t lawyers. One local doctor has been known to tell people that as long as a patient gets his concealed carry license before he gets his MMJ card, he can legally keep his guns and concealed carry license. Um, no.

Naturally, the most common question I get after I explain the current state of firearms and MMJ laws, is “How will they catch me?” I don’t know. Maybe you won’t ever get caught. Maybe a vindictive ex or neighbor will rat you out. Maybe you’ll get pulled over for something and a drug dog will find a trace in the car where your gun is. How do the police and FBI catch people all the time? If that’s a risk you’re willing to take, I know a good criminal defense attorney you can call from jail.

Nearly everyone I talk to about MMJ and firearms laws asks me what I think about these laws: “Aren’t they stupid?” “Don’t you think they should be changed?” While that’s a fun exercise for personal conversations, what I think has no bearing on the laws. As a lawyer, my job is to educate people about the laws as they currently stand.

I realize the Constitution has been warped almost beyond recognition, but as of today, it mandates that the only way to change these laws is at the federal level. Either marijuana would have to be removed from Schedule 1, or the federal gun laws would have to provide an exemption for marijuana users.  I don’t see either happening any time soon. There’s no indication that Congress feels any urgency to change the classification of marijuana. They know the media will portray them as advocating that “potheads” be legally allowed to use evil, “child-killing” guns. Those optics aren’t something on which most politicians are willing to risk their careers. But, as always, if it’s important to you that certain laws change, let your representatives know your thoughts and reasoning, and use your money and your vote carefully.

So, the short answer to “Can I keep my guns and Florida concealed carry license if I have a medical marijuana card?” is… no, not legally.

Why Have a Gun Trust?

A gun trust is the best way to own an NFA firearm.
There are still many good reasons to have a gun trust.

On July 13, 2016, the ATF changed the Rules that had been in place for decades regarding the transfers of NFA/Title II weapons. The new Rules eliminated the requirement that a chief law enforcement officer (CLEO) sign off on an individual’s ATF application before it could be submitted to the ATF. Many people saw that as a win, as it makes it much easier to buy or sell NFA weapons without a gun trust. But things aren’t always as cut and dried as they may seem.

NFA and gun trusts before July 13, 2016

Since most CLEOs in Florida wouldn’t sign off on the ATF application, individuals who wished to transfer an NFA weapon created gun trusts to legally bypass that requirement. While using a gun trust expedited the transfer of NFA weapons, it didn’t allow prohibited persons to access such weapons as NICS instant background checks were still done before the weapon left the dealer’s store. Also, the trustee was legally responsible for making sure all persons associated with the trust (grantor, trustees, beneficiaries) were not prohibited by federal or state laws from possessing firearms.

NFA and gun trusts now

Today, an individual can transfer an NFA weapon by completing the ATF application, submitting a copy by mail to her CLEO (although Florida has a law prohibiting government officials from creating lists of any sort pertaining to gun ownership), and then submitting the ATF application, fingerprint cards, and a passport photo to the ATF.

A trustee of a gun trust must complete the ATF application, but will also need to have every “Responsible Person” associated with the trust complete a new ATF form. The trustee must submit a copy of all the ATF forms by mail to her CLEO, and then submit all that ATF paperwork PLUS fingerprint cards and passport photos for every responsible person to the ATF.

Whoa! That’s potentially a lot of paperwork, time, and money.

Why a gun trust is still valuable

So, you’re probably thinking, “Hell, it’ll be easier to just buy a suppressor as an individual. Forget the trust.” Yes, in some cases, it may be appropriate. If you can say “yes” to every one of the following, you may want to buy, sell, or manufacture as an individual:

  1. I would never allow my spouse,  a friend or other family member to use my suppressor or other NFA weapon without me being right next to them (illegal possession = felony).
  2. No one except me has access to the gun safe where I store the NFA weapons I own as an individual – that includes my spouse and adult children (illegal constructive possession = felony).
  3. My spouse or significant live-in other will never need to use my suppressed weapon for self-defense when I’m not home (illegal possession = felony).
  4. I have a current, valid Durable Power of Attorney, and all of my named Agents can recognize which of my weapons are highly-regulated NFA weapons and which ones aren’t, and will know what to do with them if I become incapacitated (illegal possession= felony, contraband weapons confiscated by ATF).
  5. Or, if I don’t have a current, valid Durable Power of Attorney, I understand that if I become incapacitated, someone will have to go to court ($$) to be named my guardian so my NFA weapons can be legally transferred or sold.
  6. I have a current, valid Will, and all of my named Personal Representatives can recognize which of my weapons are highly-regulated NFA weapons and which ones aren’t, and will know how to legally transfer them when I die (illegal possession = felony, contraband weapons confiscated by ATF).
  7. Or, if I don’t have a current, valid Will, I understand that a judge will name a Personal Representative to handle my estate, in accordance with Florida law: spouse, then children, then parents, then siblings, etc. All of these people can recognize which of my weapons are highly-regulated NFA weapons and which ones aren’t, and will know how to legally transfer them when I die (illegal possession = felony, contraband weapons confiscated by ATF).
  8. I am not a veteran, so there’s no chance that the VA could someday unilaterally decide that I’m not capable of handling my finances and assign me VA Fiduciary (automatic addition to NICS database as a mental defective = prohibited person = illegal possession = felony; contraband weapons confiscated by ATF).
  9. I will not use medical marijuana as long as it’s federally regulated under the Controlled Substances Act (illegal drug use = prohibited person = illegal possession = felony; contraband weapons confiscated by ATF).
  10. I understand that any NFA weapons I own as an individual will be subject to probate ($$), and will be distributed under the terms of my valid Will, or, if I have no valid Will, per Florida law.
  11. I have no concerns about privacy when I die. I understand that my Will – which may designate who will receive certain weapons – shall become a public court record and will be available to virtually anyone.
  12. I have complete faith that the Supreme Court and politicians will continue to defend my constitutional right to own guns.

Okay, I threw that last one in there for fun – none of us believe that!

But if you can’t say “yes” to the other items on the list, consider speaking with a gun trust attorney. And if you currently have just a basic $100 NFA gun trust, consider upgrading it as it may not offer all the protection you need.

Gun trusts can be valuable estate planning tools, and there are ways a knowledgeable trust attorney can draft gun trusts to maximize sharing, privacy, and control while minimizing the onerous requirements of the new Rules. Gun trusts can include all your weapons or only your NFA weapons. They may help keep your guns in your family’s hands when things go terribly wrong for you (incapacity, legal problems, death, etc.). They can be revocable or irrevocable, depending on your situation. They can end at your death or continue for generations.

Your gun trust – just like the rest of your estate plan – should fit your particular needs just as your favorite holster fits your carry gun.

Other articles you may find interesting:

Medical Marijuana and Gun Laws: One Toke Over the Line

NFA Firearm Trust FAQs

ATF Changes NFA Rules Under Cover of Darkness

NFA rules changed for silencers
New NFA rules will affect silencers and other firearms.

Last night, while most of the media were sleeping, the ATF changed NFA rules that have been in force since 1934, and issued its final ruling on its proposal (41-P) to close the so-called “gun trust loophole.”

As originally proposed, the ATF would make transfers (purchases and sales) of National Firearms Act (NFA) weapons by trusts and corporations subject to the same archaic rules that burden individuals – namely CLEO certification, FBI fingerprints, and passport-type photos. Currently, the trustee or corporate officer preparing the paperwork and picking up the weapon is subject to a NICS background check – like any other gun buyer – and is held legally responsible under hefty federal penalties for ensuring that no prohibited person has access to the weapon.

I haven’t had time to digest the entire 240+ page ruling yet, but it appears the ATF backed away from requiring CLEO certification for trusts and corporations, and instead will require CLEO “notification” as well as fingerprints, photos, and NICS background check of all persons having control of the weapons. Generally, for trusts, that would be the trustees but may also include some beneficiaries.

This change will become effective in about 6 months.

As I currently understand it, if this ruling stands, neither individuals nor trusts will need CLEO certification (CLEO approval) before they can buy a suppressor or SBR. Instead, the CLEO must be “notified” that a transfer is taking place. And, it appears that all trustees will have to submit fingerprints and photos, and be physically present for the NICS background check.

This appears to be an unconstitutional overreach by the Obama administration, and pro-Second Amendment legal organizations are already preparing for battle. Be sure to support them to preserve your rights.

I’ll be reviewing the ruling in more depth and consulting with other gun trust lawyers to see how this may play out with existing and new gun trusts and will keep you posted.