Gunpocalypse Update: Virginia Lawmakers Consider Wave of Gun Control Measures

Former President Richard Nixon once used the term “silent majority” to describe the millions of Americans who favored law and order, or at least Nixon’s version of law and order. Today, this group might or might not be a majority, but it is definitely no longer silent.

In January 2020, several thousand activists gathered near the Virginia state capitol grounds in Richmond to voice their opposition to a number of gun control measures being considered by the Democrat-controlled legislature. Despite fears of a repeat of the violent clashes in Charlottesville in 2017, the rally was largely incident-free. Police did break up a minor scuffle and the FBI arrested several neo-Nazis who said they planned to crash the party and start a race war.

Activists said the measures being considered, including a red flag law and a universal background check requirement, could spread to other states. Texan Teri Horne put things bluntly. “They will come for our guns in other states if we don’t stop them in Virginia,” she predicted.

The episode reflects a growing schism in Virginia. Democrats believe their November victory was a mandate from the people to enact gun control measures. Currently, according to one gun control group, Virginia has some of the weakest gun control laws in the country.

And in the other corner, some of the strongest gun rights proponents in the country are in Virginia. Most of the state’s ninety-five counties have at least one Second Amendment sanctuary city where restrictions are not enforceable. Grayson County Sheriff Richard Vaughan said his office would not enforce “unconstitutional” laws. “As a sheriff I am the last line of defense between law abiding gun owners and the politicians who want to take away their rights,” he added.

Common Gun Control Initiatives: A Closer Look

The present-day gun control controversy probably dates back to the mid-1960s. Prior to the Kennedy assassination, Lee Harvey Oswald apparently used a fake name to obtain a sniper’s rifle from a mail-order catalogue. Regardless of their political leanings, most people would agree that such conduct should be illegal.

With the NRA’s blessing, Congress seemed posed to pass a set of rather strict gun control laws. But something happened before these proposals reached the President’s desk.

In 1966, former Marine Charles Whitman killed or wounded roughly fifty people from a sniper’s perch atop the University of Texas tower. The casualty count probably would have been much higher if citizens did not keep Whitman pinned down until police officers subdued him. Suddenly and dramatically, America saw the other side of the gun control story.

Universal Background Checks

Current federal law requires all licensed firearms dealers to conduct pre-purchase background checks. Statistics vary, but this restriction applies to about 75 percent of all firearm purchases. To close the so-called private sale loophole, many gun control groups advocate for universal background checks. Most Americans, both Republicans and Democrats, approve of universal background checks in principle. But as they say, the devil is in the details.

Authorities only prosecute a few people under the current background check law. So, additional restrictions are unnecessarily burdensome, according to many. Furthermore, some claim than background check fees, which can be as high as $200, effectively prohibit low-income people from acquiring firearms.

UBC advocates point to studies which indicate that background checks reduce violent crime, but the studies are a bit shaky.

Twenty-one states currently have a background check law which supplements the federal law. Georgia is not one of these places.

Firearms Licensing

Drivers’ licenses allow people to operate motor vehicles, provided they meet certain requirements, like a minimum age and completion of a driving test. Some licenses have additional restrictions, like using corrective lenses or daytime-only driving. People who violate safety restrictions often incur civil or criminal penalties.

Firearms licenses have basically the same purpose. They allow people to own guns provided that they meet certain requirements, mostly safety course completion and weapons storage requirements. In some cases, additional restrictions apply as well. Once again, violating a restriction could mean civil or criminal penalties.

Other firearms license laws apply to manufacturers or sellers. The licenses restrict these operations in some way, shape, or form.

Currently, Georgia does not have a license requirement.

Oversight of Upgrades

These gun control laws are a bit like firearms licenses. They impose additional restrictions on buying and possessing upgrades, like large capacity magazines.

Federal law already imposes a number of restrictions in this area. National Firearms Act trusts help owners bypass some of these restrictions, at least to some extent.

Red Flag Laws

Perhaps the most controversial gun control laws allow authorities, mostly local law enforcement agencies, to seize firearms if there are any red flags, such as violent social media posts or treatment at a mental facility.

These laws are radical, but they are not out of left field. In most states, concealed carry laws contain provisions denying such licenses to people with certain backgrounds. Additionally, some states are “may issue” states. Even if the applicant meets the minimum qualifications, a local law enforcement officer might still block the application. Gun trusts usually circumvent this Chief Law Enforcement Officer (CLEO) transfer requirement.

Roughly a dozen states, including some red states like Colorado and Indiana, have red flag laws. Florida, Maryland, and Delaware are the only Southern states with red flag laws.

Proponents claim red flag laws significantly reduce the number of suicides. These incidents make up most of the gun-related fatalities in the United States.

How a Gun Trust Helps

Most of these aforementioned restrictions come down to privacy, transferability, and flexibility. A gun trust protects gun owners in all three areas. And, these trusts are generally valid across state lines.

Both in life and in death, gun trusts are private. A trust is a separate legal entity from the owner. Generally, the current gun owner is both the settlor (person who establishes a trust) and the trustee (person who manages the trust).

If Gunpocalypse does happen, trustees can legitimately say they do not own firearms, even if there are guns in the house. Additionally, when trust owners acquire more firearms, the trust owns them. There may be many occasions where people do not necessarily want their names connected with a firearms purchase.

When regular gun owners die, all their possessions, including their firearms, usually pass through probate. Therefore, the estate administrator must include them on the official estate inventory, which is filed with the court. Many gun owners would prefer that their gun collections not become public record, for both privacy and security reasons.

Items in trusts generally pass outside probate. There is no public record of gun ownership.

Normally, when gun owners transfer their firearms, the government scrutinizes the transaction. In most cases, the government must also approve the transaction. Passive-aggressive CLEOs can simply let these applications sit on their desks and not act on them, effectively blocking the transfer.

Such transfers are not limited to sales. Loaning a gun to a friend for a hunting trip usually qualifies as a transfer. So does giving a gun to a descendent, like passing a first shotgun from father to son.

Gun trust transfers are usually much easier. These trusts are inter vivos (living) trusts. Therefore, trustees can add or delete beneficiaries, almost at will. There is usually a notice requirement, but there is almost never an approval requirement. Normally, it’s just paperwork.

Settlors can also add or delete from the corpus (items in the trust). Once again, adding firearms to the trust is usually a matter of paperwork

Other NFA Trust Benefits

First, a brief word about what gun trusts cannot do. They cannot circumvent federal, state, or local possession laws. If you are ineligible to possess a firearm in Georgia, you cannot be the beneficiary or co-trustee of a gun trust.

The list of what gun trusts can do is much longer.

Gun trusts prevent unintentional felonies. Assume Ron owns several rare firearms which he often displays at gun shows and other events. He comes home late one night and inadvertently leaves them in the back seat. The next day, Ron’s wife Nancy borrows his car to go to work. She rolls through a stop sign and an officer pulls her over. If the officer sees the guns in the back seat, Nancy could be charged with possessing an unlicensed firearm.

If Ron and Nancy are co-trustees, either one can legally possess the guns. Again, that’s assuming both are otherwise qualified to possess firearms.

Additionally, NFA trusts allow gun owners to pass more than their tangible possessions to the next generation. Gun trusts allow owners to transfer their values as well. This action might be just as important as passing the corpus in the trust.

During the Revolutionary War, American militia played a pivotal role, especially in the early skirmishes at Lexington and Concorde. Those early voters probably had the Minutemen in mind when they cast their ballots in favor of the Second Amendment.

Unfortunately, the Minuteman spirit lasted less than thirty years. The American Revolution formally ended in 1783. In the early years of the 19th century, American expansionists had their eyes on Canada. President Thomas Jefferson once remarked that adding this territory to the United States was only “a matter of marching.” Disputes with the British over the impressment of sailors and the sponsorship of Indian raids furnished expansionists and anti-British elements with an excuse to declare war.

But by 1812, the American militia system had deteriorated significantly, to say the least. Units had no discipline. They refused to serve under officers they did not elect themselves and often disobeyed orders which did not suit them. In other words, the Founding Fathers did a good job of protecting property rights with the Second Amendment. But they failed to communicate their values.

A gun trust solves this problem. In addition to the state minimum requirements of gun ownership, settlors can require beneficiaries to meet additional requirements, such as membership in a law enforcement auxiliary group or completing additional training requirements.

Setting Up Your Gun Trust

Establishing a gun trust is usually not a problem for an experienced Marietta gun trust attorney. But these instruments are highly specialized. They combine aspects of civil gun control laws, criminal possession statutes, and probate laws.

Some people simply download forms off the internet and file them with the ATF. These do-it-yourself trusts usually work very well unless someone scrutinizes them for some reason. If that happens, they are usually invalid, typically because of a technical defect.

A good gun trust lawyer does more than diligently fill out paperwork. Typically, each trust begins with a conversation. Once a lawyer knows your needs, it is much easier to craft a gun trust that meets those needs. Typically, this drafting can be done in one office visit. Attorneys usually also have the resources to properly and promptly execute your gun trust.

Many people have their lawyers draft other executory documents, such as wills, to accompany their gun trusts. That’s a service an internet form cannot possibly provide.

A gun trust might be the best way to stay afloat when the next gun control wave strikes Georgia. For a free consultation with an experienced gun rights attorney in Marietta, contact the Phillips Law Firm, L.L.C. After-hours visits are available.



Posted in Gun Trust.