We’ve living through some pretty tumultuous times, so we’ve been getting a lot of calls recently about gun trusts. One 20-year old man – we’ll call him Johnny – asked an interesting question: was there a legal way he could use a gun trust to buy regular (Title I) or NFA (Title II) firearms in Florida?
The short answer – if you don’t want to read any further – is no.
Here’s the longer explanation >>>
As many of you know, the absolutely atrocious Marjory Stoneman Douglas High School Public Safety Act, was passed in March 2018 by our cowering legislators in a knee-jerk reaction to the Parkland murders. One of the things it did was raise the legal age to PURCHASE any guns in Florida to 21. A person under age 21 is still allowed to POSSESS guns legally acquired before the law passed, or gifted to them after the law passed. They are just prohibited from buying them.
And, of course, the federal laws against straw purchases are still in effect, so a person under the age of 21 can’t give money to someone 21 or over – not even a parent or sibling – to buy a gun for him or her.
Johnny was wondering whether by naming himself and his father as trustees on a gun trust and opening a bank account in the name of the trust (a perfectly legal thing to do), the funds from the gun trust bank account could be used by his father, acting as trustee, to buy a gun for the gun trust.
We’ll consider buying a “plain vanilla” Title I gun, such as a Glock 17, first.
The federal gun laws make no sense. For some reason, when it comes to Title I guns, a trust isn’t considered a “person,” and only “persons” can buy Title I guns. Since Johnny is the sole Grantor of the gun trust, it’s presumed by law that the money in the trust bank account is his. So Dad would be filling out the ATF Form 4473 at the gun shop in his own name, certifying that he was purchasing the gun for himself, but using Johnny’s money with the intent that the gun would be Johnny’s. That’s a straw purchase. Big felony no-no.
Now, could Dad use his own money and buy the gun as an individual, with the intent to gift it to Johnny? Yes, that’s legal and not considered a straw purchase (as long as Johnny doesn’t give him anything in cash or trade for it). Johnny could then assign that gun to his gun trust and possess it legally. But that’s not what Johnny wants – he wants to be his own man, not rely on Dad for gifts.
What about buying an NFA firearm, such as a suppressor, using gun trust funds? That’s a bit more complicated because now we have to look at Florida law, federal law, and the ATF’s rules regarding the transfers of NFA firearms.
First, we’ll look at how gun trusts and NFA firearms work. Under the federal law, a trust IS considered a “person” when it comes to transferring (buying, giving, or manufacturing) Title II (NFA) firearms. But in 2016, the ATF changed its rules regarding the process when a trust applies for permission to transfer a NFA firearm, making it harder and more complicated. All the Grantors and Trustees on a gun trust are now considered “Responsible Persons” (RPs) under the current NFA transfer rules. Every RP must be qualified to buy and possess firearms under federal and state laws.
When a NFA firearm is being transferred, the trustee completes a Form 4 with information about the trust and every RP completes a Form 23, which is very similar to the Form 4473 that everyone completes every time they buy a plain vanilla, non-NFA gun. Each RP also submits FBI fingerprint cards and a passport photo for a criminal background check.
In Florida, our current law states that “A person younger than 21 years of age may not purchase a firearm.” (Fla. Stat. 790.065 (13)). And Florida’s definition of “firearm” means “any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun.” (Fla. Stat. 790.001(6)). So, essentially all NFA firearms are included in that definition.
If Johnny is the Grantor and/or a Trustee on a gun trust, he’s an RP and thus the ATF will deny an application for the trust to purchase the suppressor because Florida doesn’t allow him to buy one.
So, while Johnny is legally entitled to vote, enlist in the military, serve on a jury, buy porn, be sued, get married, apply for a mortgage, and drive a 2-ton motor vehicle at speeds that can turn himself and others into mush, he’ll have to wait until he’s 21 to be able to legally purchase any Title I or Title II firearm in Florida.
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