Legal advisors will need to come up to speed on the new gun law changes. I hope that this helps.
On Tuesday, June 21, the Senate advanced a gun safety bill, the Bipartisan Safer Communities Act, with a vote of 64-34. Just days later, the Supreme Court announced its decision in New York Rifle & Pistol Association v. Bruen, where the court struck down New York’s law requiring applicants for a concealed handgun license show “proper cause” before receiving their permit.
Here’s what the proposed bill seeks to accomplish:
1. Close the boyfriend loophole. Currently, federal law prevents those who have been convicted of domestic abuse against a partner they are married to, living with or share children with from purchasing a gun — but does not apply to those convicted of abuse against a person they are merely dating or have no romantic relationship with. The updated text would define “misdemeanor crime of domestic violence” to include individuals who have (or have had) current or recent dating relationship with the victim; an individual convicted of misdemeanor domestic violence would be banned from purchasing or possessing a firearm for five years following the end of their criminal sentence. While many may praise the purported closure of the boyfriend loophole, they may be missing the fact that an individual convicted of domestic abuse may purchase a firearm just five years following the end of their sentence, thereby effectively reopening the “closed” loophole, along with the convicted individual’s records automatically being purged from NICS (the National Instant Criminal Background Check System) at the end of the five-year ban.
Gun dealers will need to be very careful if they know or have reason to know that they may be selling a gun to any “abusive boyfriend,” and should immediately train their employees to understand this rule.
2. Provide gun sellers with greater access to background checks. Federal Firearm Licensees (FFLs) will now have access to the National Instant Criminal Background Check System (NICS) to run background checks on prospective employees to ensure that they are not prohibited from themselves owning firearms.
Gun dealers should run thorough background checks periodically on employees to help assure that they have sound backgrounds.
3. Enhanced review process for purchasers under 21. Under current law, anyone 18 or older can buy rifles and shotguns after completing a NICS background check. The proposed law will deny the transfer if a purchaser has a disqualifying juvenile record, and gives authorities up to 10 business days to complete an investigation as to the purchaser’s juvenile and mental health records in addition to the standard state and local law enforcement records, before such individual can purchase a firearm. While falling short of an actual waiting period, the bill could add several days to the gun purchasing process, and “provides an incentive for states to upload their records that reflect on the suitability of the individual to purchase a firearm,” says Senator John Cornyn (R-TX). This investigation period has individuals waiting on bureaucracy because it “would expand background checks for prospective gun buyers between the ages of 18 and 21.”[1]
Gun dealers should decide what their policies will be to carefully check and re-check the backgrounds of a purchaser who is under age 21. It is illegal to discriminate because of age, but it may save lives to let an 18 year old wait a few days before they receive delivery of a weapon and to make sure that they do not have a juvenile record that would cause reason for concern.
4. Require more gun sellers to register as an FFL. An individual who repeatedly buys and sells firearms to predominantly earn a profit must register as a Federal Firearm Licensee (FFL). Section 12002 of the bill seeks to provide clarity to the firearms industry, maintain protection for hobbyists and enthusiasts, and cracks down on criminals and sellers who engage in the business of firearm sales without appropriate licensing.
Individuals and merchants selling guns should be mindful of the regulations as they protect those that participate in regulated, legal gun sale practices, both sellers and buyers. This licensing helps to ensure that the firearms industry is monitored to protect all individuals involved.
5. Establish new penalties for straw purchasers. Straw purchasers are people who illegally purchase a gun for another person. Currently, there is no criminal statute prohibiting straw purchases and firearms trafficking, instead there are merely “paperwork violations” that prosecutors rely on. The bill establishes penalties with sentencing ranges of up to 15 years imprisonment for straw purchasers, and enhanced penalties of up to 25 years imprisonment if a straw-purchased firearm is used in connection with serious criminal activity such as gang violence, terrorism, and drug trafficking.
The penalties will ensure accountability and provide an additional protection to the community at large.
6. Encourages states to implement “red-flag” laws. The bill provides $750 million in new federal funding over five years to help states implement laws that will allow authorities to temporarily confiscate firearms from individuals deemed to be a threat to themselves or others. Florida, for example, is a state that already has a red-flag law in effect, which reads in part as follows:
“The respondent poses a significant danger of causing personal injury to himself or herself or others by having a firearm or any ammunition in his or her custody or control or by purchasing, possessing, or receiving a firearm or any ammunition.” [2] A petition by a law enforcement officer “must be accompanied by an affidavit made under oath stating the specific statements, actions, or facts that give rise to a reasonable fear of significant dangerous acts by the respondent.” The law enforcement officer “must make a good faith effort to provide notice to a family or household member of the respondent and to any known third party who may be at risk of violence.”
7. Investment in mental health services and school security. The proposed bill will invest approximately $15 billion over the next five years in new initiatives to expand mental health resources, upgrade school security, and create a broader network of “community behavioral health centers.”
This investment is an additional safety measure protecting children and young adults in the school system. This early detection and prevention method can get struggling individuals the help they need before making a decision that will end lives.
Meanwhile, At The Supreme Court:
The closely-followed and contentious case, New York State Rifle & Pistol Association Inc. v Bruen, addresses whether New York’s concealed carry law violates the Second Amendment. The New York state law at issue requires gun owners to show “proper cause” to carry a handgun in public for self-defense. In a 6-3 decision, the Supreme Court struck down the New York law’s “proper cause” requirement as unconstitutional. Justice Thomas authors the majority opinion and writes about the Second Amendment. “The definition of ‘bear’ naturally encompasses public carry.” Gun owners do not “bear” arms in the house by wearing a holstered pistol to bed, but rather people “keep” arms in the home for self-defense. He continues, “Therefore, to confine the right to ‘bear’ arms to the home would nullify half of the Second Amendment’s operative protections.”
In the majority opinion, Justice Thomas notes that laws similar to New York’s exist in other states, including California, Hawaii, Maryland, Massachusetts, New Jersey, and the District of Columbia.
Bruen is an extension of the 2008 case, District of Columbia v. Heller, where the Court held that the Second Amendment and Fourteenth Amendment protects an individual’s right to possess a handgun in the home for self-defense; Bruen extends that right to encompass carrying a handgun outside the home for self-defense.
The majority opinion recognizes that there are state and federal laws forbidding the carrying of firearms in sensitive places such as schools and government buildings. Justice Thomas writes, “We therefore can assume it settled that these locations were ‘sensitive places’ where arms carrying could be prohibited consistent with the Second Amendment.” The opinion does not define “sensitive places,” but rather states that expanding “sensitive places” to all places of public congregation that are not isolated from law enforcement defines “sensitive places” too broadly. Thomas writes, “Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.” This will not help tourism in Manhattan when firearm conventions are scheduled.
NFA Commentary:
There seems to be nothing in either the proposed bill or at the Supreme Court that will otherwise affect Gun Trusts or NFA Trusts.
A Gun Trust is a trust that is created to own firearms, where all qualified trustees may share the use and possession of the trust property. It may come as a surprise to some that federal law permits individuals to own machine guns, suppressors, and other firearms and related items, under the National Firearms Act (NFA). Certain firearms and items are subject to different classifications, such as Title I, II, and III under the NFA.
An NFA Trust, is a special type of trust instrument that is created to deal with the unique issues presented with purchasing and owning NFA firearms and related NFA items.
The purpose of an NFA Trust is to allow multiple persons to possess NFA firearms. Instead of an individual serving as the registered owner of the firearms, the NFA Trust is assigned as the registered owner for NFA purposes and a trustee or trustees are appointed to manage the firearms owned by the trust. The settlor usually pays for the trust property, serves as the primary trustee, and typically does not want the other trustees to make any significant decisions until he or she dies.[3] The settlor of an NFA Trust may be a trustee and may appoint other persons over the age of 18 as trustees, which allows anyone listed as a trustee to legally possess the firearm(s) as trust property. The settlor may also list as many beneficiaries as he or she wishes; there is no age requirement under federal law to be a beneficiary, but they may only retain control over such trust property once they reach the legal age of majority in their respective jurisdiction.
The bill’s only potential impact on Gun Trusts would be in the limited situation where a trustee of a Gun Trust is convicted of misdemeanor domestic violence, and is thus prohibited from owning trust property (a firearm) for five years following his/her criminal sentence, assuming no additional crimes have been committed. It is noteworthy that the bill’s boyfriend loophole closure does not apply retroactively, so unless a trustee commits a crime that causes him/her to then be considered a “prohibited person” under Gun Trust law, there is no impact to individuals currently named under a Gun Trust or NFA Trust.
Even those with Gun Trusts or permits should recognize, however, that when federal law prevents a person in possession of a firearm from being in violation of the law, then those in possession of medical or recreational marijuana in compliance with state law are still in violation of federal law, and can suffer severe consequences. In short, nobody should be mixing marijuana or gun possession, notwithstanding state law.
Conclusion:
As of July 2016, regulations were put in place with respect to NFA Trusts, but many aspects of the NFA Trust remain unchanged and remain a valuable estate planning tool for those who own or seek to own certain firearms. And although NFA Trusts do not appear to face any changes with the proposed bill or the Bruen decision, gun laws remain at the forefront of primary issues for Americans and special care must be taken.
[1] See Snell, Senators reach final bipartisan agreement on a gun safety bill, https://www.npr.org/2022/06/21/1106466279/senators-reach-final-bipartisan-agreement-on-a-gun-safety-bill.
[2] See Florida Statutes, Chapter 790.401 Risk protection orders.
[3] See Healy and Gassman, Legal Pitfalls in Drafting Gun Trusts, https://gassmanlaw.com/wp-content/uploads/2020/10/Lethal-Pitfalls-in-Drafting-Gun-Trusts-CLE.pdf.