The Second Amendment to the United States Constitution, as ratified, reads as follows: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
Today, with the amount of national media coverage of gun violence and gun-related crimes, guns are certainly a hotly contested topic. Critics of the “right to bear arms” cite the gun violence in the news for a justification to implement more gun control laws and regulation. Proponents, on the other hand, cite a drop in gun violence, statistically, to demonstrate the futility of further regulations.
Regardless of your position, any observer knows that more laws regulating gun ownership are on the way. How can you tell? Simply stated, the legislative process provides far more ways to create laws than it provides to destroy them. Remember, the federal agency regulating the use, manufacturing and possession of firearms, otherwise known as the Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF, has been around since 1886. So even states with little gun regulation, such as Utah, are required to cut through 127 years of red tape before state regulation, or the lack thereof, becomes applicable.
Like many of us seeking the outer limits of the law, many Utah gun enthusiasts ask, “What type of guns can I own?” No matter what state one resides in, the ATF regulates firearm licensing, sales, possession, transportation and ammunition. So, although Utah is one of several states that allows ownership of silencers or machine guns, you are not getting one unless the ATF says so.
The ATF promulgates the National Firearms Act, or NFA. The NFA applies to grenades, bombs, explosive missiles and poison gas weapons. If you do not feel safe with your neighbors’ having these items, you may owe some gratitude to the NFA (and applicable state law). On the other hand, maybe your right to bear arms includes access to machine guns, short-barreled weapons and suppressors (silencers), and the NFA also applies to these items. Utah law, as it stands, allows ownership of suppressors, but you better not allow anyone else to hold yours. If the ATF approves your ownership of a suppressor, it doesn’t imply that your brother’s use of the item is approved. In fact, if you own the suppressor, you would be violating the law if you allowed someone else to use your suppressor.
Accordingly, most gun enthusiasts, in seeking the answer to the question of “What type of guns can I own?” are realizing that the better question is, “Whose guns am I allowed to use?”
See, in the legal world all people are entities, but not all entities are people. For instance, corporations are allowed to own guns. Properly authorized corporate officers can use a gun owned by the corporation. Trusts are also considered legal entities. Gun trusts are becoming wildly popular. Trusts can exist for long periods of time, and named beneficiaries authorized to use trust property can be exhaustive.
With the understanding that more laws are on the way, why does it matter what the federal government or the state laws allow? Well, if or when changes do occur in the law, as it relates to gun regulation, you can expect a transition from old law to new law. Accordingly, gun enthusiasts speculate that gun trusts, as useful as they are, will likely be grand-fathered in when further gun regulation is enacted.
Ultimately, regardless of what side of the aisle you are on, we know regulation is inevitable. However, regardless of what regulation is enacted, attempts to circumvent the regulation are inevitable.
Editor’s note: Dustin R. Matthews is a Utah licensed attorney with an office in Bountiful, Utah. This column is intended to be informational and designed to stimulate public awareness and discussion. The information provided in this column is not legal advice, and should not be relied upon as legal advice. Every person, case, and situation is unique, and if any readers have any questions or concerns relating to the subject matter of this column, they should seek a licensed professional competent to advise them appropriately.