Gun Trusts in Light of the Latest Federal Court Restrictions on Gun Rights

The gradual erosion of firearms possession rights continued in recent decisions from two of the highest courts in the country.

In Gould v. Morgan, the First Circuit Unanimously upheld Massachusetts’ extremely strict gun control law. This law restricts street possession to individuals who have a “good reason” to feel threatened. That usually means a specific and credible threat of violence. A General desire to be safe and protect one’s family is not sufficient. “We hold that the challenged regime bears a substantial relationship to important governmental interests in promoting public safety and crime prevention without offending the plaintiffs’ Second Amendment rights,” the three-judge panel concluded.

The Second Amendment

To reach this decision, the court narrowly interpreted the Second Amendment. Under this interpretation, this provision gives people the right to have guns for self-defense in their homes, and that’s about it. In Support of its position, the First Circuit cited a good cause law which Massachusetts lawmakers passed in 1836. That’s only about fifty years after the Second Amendment was approved. Furthermore, according to the court, there is no precedent for the right to carry guns in the streets.

Finally, the court explicitly stated the state’s interest in restricting firearms ownership. Massachusetts “consistently has one of the lowest rates of gun-related deaths in the nation, and the Commonwealth Attributes this salubrious state of affairs to its comprehensive firearms licensing regime,” the panel concluded.

The Supreme Court

This case may be headed to the Supreme Court. Lawyers and advocates from both sides filed amicus briefs. But the High Court recently refused to hear an appeal regarding California “gunpocalypse” restrictions.Gun control opponents had already tried and failed to obtain High Court review of this controversial law. If they thought that the addition of conservative Justice Brett Kavanaugh to the Court would change the outcome, they were wrong.Similar to the Massachusetts law discussed above, California allows people to keep guns in their homes but restricts street carrying to good cause. In the Golden States, county sheriff’s decide what does and does not constitute “good cause,” and there is essentially no oversight.

Even as states like California and Massachusetts continue to re-interpret the Second Amendment, the High Court has not issued a major decision in a gun rights case since 2010. Rather ominously, Supreme Court rules state that only four Justices need to vote in favor of hearing a case to grant certiorari. Currently, the Court consists of five generally conservative Justices and four liberal ones.

The Supreme Court’s Gun Rights Position

That 2010 decision applied 2008’s District of Columbia v. Heller to all jurisdictions in the United States. The Way things are shaping up now, Hellermay have been the high-water mark of gun possession rights in the United States. This opinion explicitly divorced the right to possess a firearm with the necessity of a well-regulated militia.

D.C. lawmakers

D.C. lawmakers passed the Firearms Control Regulations Act Way back in 1975. Some subsequent amendments forbade owners from keeping ready-to-use rifles and shotguns in their homes. Instead, to comply with the law, these weapons had to be either disassembled and unloaded or protected by a trigger lock. Around 1992, Constitutional scholar and non-gun owner Robert Levy Assembled a group of plaintiffs to challenge the law. Lead plaintiff DickHeller was a D.C. special police officer who could carry a gun on the job but not in his own home. He grew up in a public housing complex which, according to him, was once a “child-friendly” place to live but was now “a drug haven.”

Procedurally, a U.S. district judge summarily dismissed the lawsuit. The First Circuit reversed and declared portions of the law unconstitutional. That outcome might be different now. Recall that the First Circuit just upheld Massachusetts’ “gunpocalypse” law.

Justice Antonin Scalia

In his majority opinion, Justice Antonin Scalia noted that three prior Second Amendment drafts made no mention of a well-regulated militia. He then labeled the militia language as a prefatory clause which announces a purpose but does not limit the operative clause (the right to bear arms). Scalia insisted that the government’s right to restrict firearms ownership was limited to time, place, and manner-type restrictions (e.g.mentally ill persons, felons, and carrying guns on school grounds).

Justice John Paul Stevens

In dissent, Justice John Paul Stevens objected to Scalia’s“strained and unpersuasive reading” which “bestowed a dramatic upheaval in the law.” Justice Stephen Breyer filed an even stronger-worded dissent. “There Simply is no untouchable constitutional right guaranteed by the Second Amendment To keep loaded handguns in the house in crime-ridden urban areas,” he declared.

The D.C. gun control law seemed blatantly unconstitutional to many, even the liberal First Circuit. Subsequent courts have basically twisted the Heller doctrine. Instead Of going after rifles in the home, the new target is handguns on the street and so-called “assault weapons” wherever they are found.

Having a Gun Trust is crucial

In the current environment, a gun trust is more important than ever. Many people believe that since the ATF closed the identification loophole in 2016, there is no longer any reason to start a gun trust. But a gun trust never was about a purchase loophole. Instead, a gun trust served the same purposes as a testamentary trust. Gun trusts enabled settlors (people who make trusts) to pass their values along to beneficiaries and protect their property.These objectives remain.

Gun Trusts and Your Values

The aforementioned Massachusetts 1836 gun law represented a breakdown of values. Only about fifty years after the Second Amendment became law, the Founding Sons and Grandsons knew they had the right to bear arms, but not understand why they had that right.

That breakdown actually began years earlier. The War of 1812 is now a largely-forgotten conflict. But it played such a pivotal role that it deserves a brief aside.


Our republic was only about twenty-five years old when the government declared war against Great Britain. Since the end of the Revolutionary War, America had experienced success after success. U.S. President James Madison confidently predicted that the United States could once again whip the powerful British.

But this view of history was somewhat selective. The Colonies probably would not have won the Revolutionary War without French Assistance. With Napoleon embroiled in a death struggle to regain his empire,the French were obviously in no position to help the Americans this time.

Declaration of war

Furthermore, the dynamics were different. The United States were not united. There was considerable opposition to the war in the House, which narrowly approved the declaration 79 to 49. The vote was even closer (19 to 13) in the Senate. Meanwhile, on the other side of the Atlantic, many Brits considered the declaration almost treasonous. By their way of thinking, while they fought to rid Europe of despotism, the pesky Americans Took advantage of the situation.

Things looked very bleak for the Americans for most of the war.Fortunately, the British crown did not have the stomach for yet another war on the heels of Napoleon’s defeat.

What does all that have to do with gun trusts? In 1812, America only had a tiny professional army. Instead, the country depended on militia for defense. That turned out to be a major mistake. People had no respect for the firearms they owned and did not know how to use them for self-defense. As a result, the young republic barely survived.

A gun is not just an advanced slingshot or just another self-defense tool. Gun ownership is also about values like:

  • Protecting your home and family,
  • Knowing how to use and care for the firearm,
  • Feeling confident in an uncertain world, and
  • Passing on these values to the next generation.

To re-use Scalia’s grammatical argument in Heller, your gun trust can include botha prefatory clause and an operative clause. The gun trust’s corpus (items in the trust) then become more than just things. They represent the values you want them to represent.

Conditional Gun Trust

Many trusts, including gun trusts, are also conditional. Settlors routinely include provisions which allow beneficiaries to inherit once they reach a certain age or get past a certain milestone, like graduating from college. So, a trust can also encourage beneficiaries to complete college and behave in other ways.

Your gun trust can include similar provisions which communicate your values. Many of these legal documents contain provisions like:

  • Required firearms handling training,
  • Mandatory firearms use instruction, or
  • Agreement with a statement of principles.

Gun trusts are relatively easy to set up. In as little as one office visit, a gun trust attorney can determine what values you want to pass along and draft appropriate documents. Furthermore, the process is much less expensive than many people imagine.

Gun Trusts and Physical Possession

If you buy certain types of guns, it can be almost impossible to transfer it to someone else. That’s especially true in the growing number of firearm restriction states.

But a gun trust works differently. A trust is a separate legal person. So, the trust, and not the individual, owns the firearm or firearm equipment, like a magazine or suppressor. As a result, the beneficiaries of the trust have ownership rights.

They are basically like agents of owners. To acquire more property, the trust must jump through the same hoops as a flesh-and-blood owner. But transferring firearms among beneficiaries is usually no more complicated than dropping off the item in a new location.

So, a gun trust protects your friends and loved ones from accidental felonies. Assume Jerry unintentionally leaves a collectible machine gun under his vehicle’s back seat. If his son Michael borrows the car, Michael Gets pulled over for speeding, and the officer peeks in the back, Michael could be in a lot of trouble.

He might have a legal defense to the charge if he did not know the gun was in the back seat. But it’s up to him to prove that defense at trial. Furthermore, he still has an arrest on his record and is out money for bail and attorneys’ fees.

A trust bypasses this scenario. If Michael is a co-trustee with Jerry, he has as much right to possess the firearm as his father.Additionally, assuming his dad’s trust contained such provisions, Michael would also understand why he has the right to possess that firearm.

Gun Trusts and End-of-Life Issues

Things like cars and neckties are temporary possessions.They abide in your garage or closet until they wear out, and their owners replace them.

Quite obviously, a firearm bears little resemblance to a caror a necktie. Assuming they are well taken care of, which is part of the point of a gun trust, they can last for decades. In fact, the firearm will probably be around when the original owner dies. That’s another point of a gun trust.

But the gun trust is not just for subsequent owners. These Vehicles also have substantial benefits for current owners.

Mental incapacity

Many people deal with mental incapacity close to the ends of their lives. Whether the incapacity is temporary or permanent, states may confiscate firearms in these situations. If the incapacity passes, as it normally does, retrieving your confiscated firearm can be a bureaucratic nightmare.

The key point here is that the state may have the right to seize your firearms. It usually doesn’t have the right to confiscate the guns that other owners lawfully possess,even if that other owner is a trust and not a natural person.

If the incapacity is permanent, owners have different problems. Their heirs will have to fight the same bureaucratic battles.


A trust is also a good way to preserve privacy. If the gunis your individual property, it normally appears on public record estate inventories. Everyone and their dog may learn about your collection of rare and expensive firearms.

But a trust is private. No one else will know about the items in the corpus. This non-probate transfer is also rather seamless and avoids tax issues.

Rely on an Experienced Gun Trust Lawyer

Since federal courts are doing little to protect your gun ownership rights, it’s up to you to do so yourself. For a free consultation with an experienced firearms’rights attorney in Marietta, contact The Phillips Law Firm LLC.Protecting your home and family,

Posted in Uncategorized.