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By Joseph E. Gruber Jr.*

Gun ownership is a prevalent topic discussed throughout the United States. Whether you are a stout[1] Second Amendment[2] supporter, one who believes in the necessity of gun reform,[3] or a bit of both,[4] one important, and increasingly common[5] tool for gun owners is a gun trust. Gun owners establish gun trusts as a means to avoid requirements placed on individuals transferrring certain weapons.

A gun trust is a legal trust that can be created to acquire firearms and share them with trust members.[6] This structure “bypasses the need to obtain law enforcement approval or even undergo criminal background checks.”[7] Specifically, gun trusts may be used to bypass the requirements of two key federal laws: the National Firearms Act of 1934[8] (“NFA”) and Title II of the Gun Control Act of 1968[9] (“Gun Control Act”), which revised the NFA.[10] Note that the Gun Control Act is actually codified in various areas of the U.S. Code. The NFA was ostensibly enacted as a tax statute, and can be found in Title 26 of the U.S. Code (Internal Revenue Code).[11] Title 26 allows firearms to be transferred when the transferee is identified in prescribed application;[12] however, if the transferee is an individual, their fingerprints and photograph are also required.[13] This application is further defined in the Code of Federal Regulations § 479.85, where the specific requirements for the identifying documents (e.g., the size and composition of an individual’s picture) are stated.[14] Section 479.85 further requires a certificate from a certifying official, such as the local chief of police, stating the picture and fingerprints are those of the transferee, that the certifying official believes transfer of the weapon would not place the transferee in violation of state or local law, and that the transferee will not use the firearm for any unlawful purpose.[15]

These requirements were put in place to “curtail, if not prohibit[,]” the transfer of the firearms governed by the NFA and Gun Control Act.[16] Gun trusts, however, can ease the burden of transferring weapons as an individual. Because the two key federal laws only apply to “individuals,”[17] once the firearms are included as corpus of a gun trust, any person named as a trustee could have the full enjoyment of the weapons without having to provide the information required by § 479.85.[18] Further, if the trust were properly created, it would stay in existence after the initial trustee or trustees’ death, thereby, allowing any successor to avoid the requirements as well.[19] The exchange of guns in this manner could theoretically continue in perpetuity, circumventing any future laws.[20]

The real difficulty in drafting a gun trust depends on these successor trustee provisions. One of the main benefits of any trust is its longevity, which allows for successor trustees and beneficiaries to enjoy the trust corpus with minimal risk of infringing the law. Despite the fact that trusts can overcome the transfer requirements, certain restrictions are still placed on who can possess and receive firearms. Specifically, 18 U.S.C. § 922(g) contains a laundry list of prohibited persons who may not receive a firearm.[21] These persons include, for example, anyone convicted of a crime punishable by greater than one year in prison,[22] a person who is addicted to a controlled substance,[23] and a person who has been dishonorably discharged.[24] The trust must therefore allow for the nominating, and potential replacement, of trustees and successor trustees to ensure that a valid trustee (that is, a trustee who is not a prohibited person under § 922(g)) is available to assume control of the trust.

In 2013 the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) and President Obama have attempted to close the perceived loophole that gun trusts exploit.[25] After his push for additional gun regulations following the high profile shootings of the past several years,[26] President Obama has increasingly relied on executive action in the wake of congressional opposition to such reform.[27] To that end, the ATF submitted for executive review in August of 2013 proposed regulations[28] to require “responsible persons” of a gun trust to complete a specified form, submit photographs and fingerprints, and submit a law enforcement certificate.[29] When the ATF made this proposal available for public comment in September 2013, it received over 9000 responses.[30] Initially slated to make a decision about the final rule in the spring of 2014,[31] the ATF will now postpone any action until at least 2015, in the wake of the opposition expressed in the public comments to the proposed changes.[32]

As posited in this Article, these trusts are extremely beneficial to any gun owner looking to share and pass down his or her collection with ease, and supporters of the trusts are not shy about letting their voices of opposition to reform from being heard. However, these trusts also raise concerns, as they can allow certain individuals to possess weapons that would otherwise be difficult, or even illegal, to possess. Regardless of one’s stance on the Second Amendment, it is important to be educated on the value of these trusts or the danger that these trusts pose to respectively take responsible advantage of them or to support new laws to disallow them.

*Joseph E. Gruber Jr. is a law clerk at Aaron, Riechert, Carpol & Riffle, APC. He extends his utmost gratitude to Pareesa Ashabi, Sean McNealis and the rest of the USF Law Review for their assistance in this Article.
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[1] The National Rifle Association (“NRA”) is “widely recognized today as a major political force and as America’s Foremost defender of Second Amendment rights . . . .” NRA History, NRA Digital Network, http://home.nra.org/history/document/about (last visited Sept. 19, 2014).

[2] U.S. Const. amend. II.

[3] About Us, Coalition to Stop Gun Violence, http://csgv.org/about-us/ (last visited Sept. 19, 2014) (“We seek to secure freedom from gun violence through research, strategic engagement and effective policy advocacy.”).

[4] About, Americans for Responsible Solutions, http://americansforresponsiblesolutions.org/about/ (last visited Sept. 19, 2014) (“As gun owners and strong supporters of the Second Amendment, [former U.S. congresswomen] Gabby [Giffords] and [husband] Mark [Kelly] know [they] must protect the rights of Americans to own guns for collection, recreation, and protection . . . [but] that commonsense protections from gun violence can prevent shootings from shattering communities like Tucson, Aurora, and Newtown.”).

[5] Erica Goode, Trusts Offer a Legal Loophole for Buying Restricted Guns, N.Y. Times (Feb. 25, 2013), http://www.nytimes.com/2013/02/26/us/in-gun-trusts-a-legal-loophole-for-restricted-firearms.html?pagewanted=all&_r=0 (“[A]pplications filed with the A.T.F. [Bureau of Alcohol, Tobacco, Firearms and Explosives] for transfers of restricted firearms to trusts or corporations have more than doubled in the last four years, to more than 39,000 in 2012 from about 15,000 in 2008 . . . . [and] the increase was largely attributable to the growth in the number of trusts.”).

[6] Id. (“[Gun trusts] have gained in popularity, gun owners say, in part because they may offer protection from future legislation intended to prohibit the possession or sale of the firearms.”).

[7] Id.

[8] National Firearms Act of 1934, ch. 757, 48 Stat. 1236 (1934).

[9] Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1227 (1968).

[10] National Firearms Act, Bureau of Alcohol, Tobacco, Firearms and Explosives, https://www.atf.gov/content/firearms/firearms-industry/national-firearms-act (last visited Sept. 19, 2014); William J. Vizzard, The Gun Control Act of 1968, 18 St. Louis U. Pub. L. Rev. 79, 84 (1999).

[11] National Firearms Act, supra note 10; Vizzard, supra note 10, at 79.

[12] 26 U.S.C. § 5812 (2012) (“A firearm shall not be transferred unless . . . (3) the transferee is identified in the application form in such manner as the Secretary may by regulations prescribe, except that, if such person is an individual, the identification must include his fingerprints and his photograph.”) (emphasis added).

[13] Id.

[14] 27 C.F.R. § 479.85 (2014).

[15] Id.

[16] National Firearms Act, supra note 10.

[17] 27 C.F.R. § 479.85; 26 U.S.C. § 5812.

[18] See, e.g., Goode, supra note 5 (“[B]ecause of a loophole in federal regulations, buying restricted firearms through a trust also exempts the trust’s members from requirements that apply to individual buyers, including being fingerprinted, obtaining the approval of a chief local law enforcement officer and undergoing a background check.”); Mary Randolph, Using a Gun Trust to Pass on Firearms, NOLO, http://www.nolo.com/legal-encyclopedia/using-gun-trust-pass-firearms.html (last visited Sept. 19, 2014) (“A gun trust can avoid some of the federal transfer requirements . . . .”); Julian Hattem, White House Eyes ‘Gun Trust’ Loophole, The Hill (Aug. 21, 2013, 7:42 PM), http://thehill.com/regulation/pending-regs/318133-white-house-reviewing-draft-gun-control-rule (“The Obama administration is working to close a loophole in the nation’s gun laws that allows for some machine guns and sawed-off shotguns to be sold without the buyer submitting fingerprints or photographs.”).

[19] Randolph, supra note 18.

[20] See Goode, supra note 5 (“They have gained in popularity, gun owners say, in part because they may offer protection from future legislation intended to prohibit the possession or sale of the firearms.”).

[21] 18 U.S.C. § 922(g) (2012).

[22] Id. § 922(g)(1).

[23] Id. § 922(g)(3).

[24] Id. § 922(g)(6).

[25] Hattem, supra note 18.

[26] See James Barron, Nation Reels After Gunman Massacres 20 Children at School in Connecticut, N.Y. Times (Dec. 14, 2012), http://www.nytimes.com/2012/12/15/nyregion/shooting-reported-at-connecticut-elementary-school.html?pagewanted=all&_r=0; Dan Frosch, Gunman Kills 12 in Colorado, Reviving Gun Debate, N.Y. Times (July 20, 2012), http://www.nytimes.com/2012/07/21/us/shooting-at-colorado-theater-showing-batman-movie.html?pagewanted=all.

[27] Hattem, supra note 18.

[28] Id.

[29] Machine Guns, Destructive Devices and Certain Other Firearms; Background Checks for Responsible Persons of a Corporation, Trust or Other Legal Entity With Respect To Making or Transferring a Firearm, 78 Fed. Reg. 58014 (Sept. 9, 2013) (proposed rule modifying 27 C.F.R. § 479 with request for comments).

[30] Machine Guns, Destructive Devices and Certain Other Firearms; Background Checks for Responsible Persons of a Corporation, Trust or Other Legal Entity With Respect To Making or Transferring a Firearm, Docket No. ATF-2013-0001, Regulations.gov, http://www.regulations.gov/#!documentDetail;D=ATF-2013-0001-0001 (last visited Sept. 19, 2014) (indicating 9479 comments received).

[31] Joanna Small, ATF Proposes Rule Changes to Close Gun Trust ‘Loophole,’ KSPR (Mar. 24, 2014, 10:31 PM), http://www.kspr.com/news/local/atf-proposes-rule-changes-to-close-gun-trust-loophole/21051620_25147250.

[32] Jon Swaine, Obama Plan to Close Gun Loophole Stalled by NRA and Pro-Gun Opposition, The Guardian (May 3, 2014, 9:59 AM), http://www.theguardian.com/world/2014/may/03/obama-executive-action-gun-loophole-stalled-nra-opposition.