11-22-2012, 7:06 AM
Hi everyone and thanks in advance for any help or info.
Since we're looking at the possibility of a new AWB, part of getting ready is making sure we have the guns, mags, parts, etc that may be hard to get in the future. Another part is planning how to secure our goodies. I'm well into stage one and thinking about stage two.
So for those of you who lived through the AWB in Kali, did putting your firearms into a trust or a corporation make them effectively transferable to your heirs, or did it just screw things up totally so even you couldn't access the things in Kali legally? Here's what I'm wondering, spelled out - if I put my guns into a trust or I incorporate, I technically don't own them any more. But, like any trust or corporation I would set it up so I am in charge of the thing and can pass down this status to my heirs. However, is the Kali law (which appears to be the basis of the fed proposals I have seen floating about) one in which a company or trust can allow the conservator (I think that's the right word) to actually take physical possession and use the items or does the Kali law prohibit transfers of "possession" in which the conservator wouldn't actually be able to physically take possession of his or her own former guns as owned by the trust and managed by themselves?
Any advantages to incorporating over a trust? Or the other way around? With all the new taxes and doubtless new ways for our masters to seize our property (not just gun stuff) this is a mechanism I am looking at but don't know nearly enough about!
IANAL as you can clearly tell.
All the best,
11-22-2012, 8:28 AM
Just completed my trust to buy an AOW, I too would be interested to hear about this.
Keep in mind Grumpy that the trust is an NFA trust and more than person has told me not to put non-NFA firearms into the trust. Not sure I understand the reasoning why. I didn't get my trust from a lawyer, just a from a legal document assistant so he cannot answer these sorts of questions for me.
Hopefully someone more knowledgeable about this will chime in.
11-22-2012, 10:39 AM
AFAIK CA RAWs are only "transferable" to FFLs who then can only sell them to LEOs in CA or out of state.
I doubt that the Federal AWB 2.0 will go as far as restricting banned weapons from being transferable. Who knows for sure until the law is passed. I doubt it will have any effect in CA. Remember that the Clinton 1994-2004 AWB was modeled after the CA 1989 Roberti-Ross ban. SB-23 followed up using the Fed AWB as a pattern, but is much stricter. So far the Federal anti-gun laws work to be incremental instead of outright bans. The reason the 46 Republican representatives & 44 Republican senators voted for the AWB was that it was a sort of experiment with a 10 year self life and that existing but now banned guns & mags were grandfathered in and not subject to the law. If it had made a big impact on gun related crimes, it most likely would have been permanently renewed. That didn't happen of course. To dispel the myth that Republicans will not vote for the AWB 2.0, let history be your guide. How many of these were NRA A rated at the time? To be really disgusted look at how the Senators voted.
Republican Hall of Shame:
Senators who voted for the 1994 AWB:
Frank Murkowski, Ted Stevens (AK), Richard Shelby (AL), JOHN (Juan McCain the amigo of illegals) MCCAIN (AZ), George Brown, Ben Campbell (CO), William Roth (DE), Connie Mack (FL), Paul Coverdell (GA), Charles Grassley (IA), Larry Craig, Dirk Kempthorne (ID), Daniel Coats, Richard Lugar (IN), Bob Dole, Nancy Kassebaum (KS), Mitch McConnell (KY), William Cohen (ME), Christopher "Kit" Bond, John Danforth (MO), Thad Cochran, Trent Lott (MS), Conrad Burns (MT), Duncan Faircloth, Jesse Helms (NC), Judd Gregg, Bob Smith (NH), Pete Domenici (NM), Alfonse D'Amato (NY), Don Nickles (OK), Robert Packwood (OR), Arlen Specter (PA), John Chafee (RI), J. Thurmond (SC), Larry Pressler (SD), Phil Gramm, Kay Hutchison (TX), Robert Bennett, Orrin Hatch (UT), John Warner (VA), James Jeffords (VT), T. Gorton (WA), Alan Simpson, Malcolm Wallop (WY)
Representatives who voted for the 1994 AWB:
Jon Kyl, James “Jim” Kolbe (AZ), Michael Huffington, Elton Gallegly, Stephen Horn (CA), Christopher Shays, Gary Franks, Nancy Johnson (CT), Michael Castle (DE), Ileana Ros-Lehtinen, Lincoln Diaz-Balart, Clay Shaw (FL), James “Jim” Leach, Frederick Grandy (IA), John Porter (IL), Jan Meyers (KS), Peter Blute, Peter Torkildsen (MA), Wayne Gilchrest, Constance Morella (MD), Olympia Snowe (ME), Frederick “Fred” Upton (MI), James “Jim” Ramstad (MN), James “Jim” Talent (MO), James “Jim” Saxton, Christopher “Chris” Smith, Marge Roukema, Bob Franks, Richard Zimmer (NJ), Rick Lazio, Peter “Pete” King, David Levy, Susan Molinari, Sherwood “Sherry” Boehlert, James “Jim” Walsh, Jack Quinn, Amory “Amo” Houghton (NY), David “Dave” Hobson, John Kasich, Deborah Pryce (OH), Curtis “Curt” Weldon, James “Jim” Greenwood, Thomas Ridge (PA), Ronald Machtley (RI), Scott Klug (WI),
Oddest Dem No vote: Jolene Unsoeld (WA) as she authored 922R in 1990.
11-22-2012, 5:06 PM
I guess the operative point is "what counts as a transfer?" So, a company buys a gun and keeps it on the books. It's authorized employees have access to the gun, but no "transfer" is held to take place (I think), since it is still the property of the company and is merely being used by the employee. Similarly, no transfer in ownership of guns in a trust takes place - they always belong to the trust. However, the custodianship of the trust CAN transfer. Sounds stupid, but that's what we get when we make laws that create artificial "legal entities".
So, the question still stands - if someone set up a trust prior to registering it as a RAW, can his heirs inherit custodianship of the trust and with it (effectively) inherit the RAW? Or is the use of a gun in a trust held to be the same as "lending" in which case NO ONE could use the gun in Kali.
Last few years I have been trying to find out how the really rich and powerful use the system to their advantage. Trust funds that let people have access to the use of property without any of the downsides of actually owning it seem to be one of the mechanisms they are using. Anyway, wish I understood this better. Any lawyers out there want to weigh in on it?
All the best,
11-22-2012, 5:28 PM
It's funny that the politically somewhat naive are worrying about a well-nigh impossible to pass future Fed law [we're fine in the House] when our problems are here are in CA (i.e., SB249 resurrection by Yee & team).
Yes, Fed vigilance is necessary but the fight is here in CA.
I do not understand also how you can remotely predict how a trust might work in such a situation when law hasn't even been drawn up, so at this point it's just an exercise in timewasting. And there's the complete separation of Fed AW status (if it occurred) in Fed law, vs what CA's entirely separate AW definition is/will be.
11-22-2012, 8:38 PM
Here's what I'm wondering, spelled out - if I put my guns into a trust or I incorporate, I technically don't own them any more. But, like any trust or corporation I would set it up so I am in charge of the thing and can pass down this status to my heirs.
In my non-legal estimation trusts are useless for AWB purposes.
For the NFA, one either needs a Chief Law Enforcement Officer sign off on the ATF Form 1 , OR a trust. More than a few NFA fans find themselves in a situation where ownership of an NFA item is legal but the CLEO will never realistically grant approval.
Thus, the trust eliminates that requirement. Furthermore a trust becomes necessary if multiple people are intended to use an NFA item. Since transferring an NFA weapon or accessory to an un-approved person is technically illegal under certain circumstances, a trust allows for multiple people to handle and use NFA items without breaking the law. A gun range in my neck of the woods rents out full auto firearms, and has them registered under a trust for that reason.
With regard to an AWB, the problem is that an Assault Weapons Ban doesn't regulate guns, it regulates "features". An AWB controls firearms based on features, and as such no trust can protect someone from violation of the law. A firearm with features X, Y, and Z is illegal no matter who owns it or what trust controls it.
As far as grandfathering goes, I doubt its going to play out that way again. This time around the Feds will set it up where you have 90 days to surrender the assault weapon to Law Enforcement or go to jail on day 91 and beyond if you get caught with it. The Constitution is a joke in modern America, so "property rights" wont count for squat in this situation.
11-23-2012, 8:57 AM
Sounds stupid, but that's what we get when we make laws that create artificial "legal entities".
Though a trust is treated as an entity under the NFA, a trust is generally not considered an entity but rather a fiduciary relationship undertaken by the trustee. The transfer is to and from the trustee.
I agree with Bill that you cannot really predict how a "trust" will work without knowing the text of the law that is probably coming, but i would add that it also may depend a lot on what's in that "trust" and what kind of relationship you have with the person (or computer etc.) that wrote that trust.
Here is a comparison of features in conventional trust versus the 3 levels of planning available from GunDocx lawyers: http://lawnews.tv/joomla1/images/documents/gundocx_comparison.pdf
A ban on transfer is one thing but what of possession? This is a really gray area and some states may afford possessory rights to a beneficiary but the safest course may be appointment of a particular beneficiary as a special trustee for the handling of a specific weapon, possibly for a limited period of time.
In the video below i make the point that a properly crafted (and regularly updated) trust may give you more options in the event of a future ban--no guarantees, but in the event neither transfer nor possession is possible in CA, then at least you would probably have a mechanism in place for easily transferring possession to an out-of-state co-trustee under a trust instrument you still control:
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