How will SB281 affect adding members to a Trust?

Norton said:

He is a Maryland licensed attorney.

Let's just say his presumption of the cloak of anonymity is not a complete as he would believe.

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Your right, I’m not really all that anonymous. As you can tell, I don’t really expended much energy concealing my identity. There are many members here who know who I am.

Rusty Shackleford said:

Something has always troubled me about my issues with Anderson76 and our differences in opinion over the effects of SB281 and trust law. After a long soak in the tub, I've figured out what is bothering me: Anderson76 is throwing out information in relative anonymity and I am countering that information without the cloak of anonymity. He/She could challenge me all day and all night, post scenarios, or just plain impugn my judgment without ever incurring any damage to his/her reputation or business while I might sustain a great deal of damage regardless of whether I am right or wrong in the end. In other words, I am incurring a great deal of liability and exposure on this matter while Anderson76 essentially risks nothing. For that reason, I am deleting my substantive posts on this matter and merely leaving my opinion of Anderson76's opinion. I am more than happy to talk through the issues presented in this thread over the telephone; please feel free to call me.

I'm warning all of you now: be careful about what Anderson76 is telling you. He sounds educated and maybe he's an attorney but he is wrong or misguided on many of these issues. Please think twice before taking his analysis as gospel.

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Rusty,

As long as the information that you have posed here is accurate you should have nothing to fear from a liability perspective. A competent practitioner should be able to stand behind every position he takes.

You have taken a number of shoots at me. In this thread you briefly went on record trying to explain why I was wrong. Your responses, which you have since deleted, demonstrate your lack of knowledge as to the basics of trusts and estates law. Now, you are trying to cover up your mistakes by deleting your posts. Your are quite literally running away from your own words.

anderson76 said:

Your right, I’m not really all that anonymous. As you can tell, I don’t really expended much energy concealing my identity. There are many members here who know who I am.

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anderson76 said:

Rusty,

As long as the information that you have posed here is accurate you should have nothing to fear from a liability perspective. A competent practitioner should be able to stand behind every position he takes.

You have taken a number of shoots at me. In this thread you briefly went on record trying to explain why I was wrong. Your responses, which you have since deleted, demonstrate your lack of knowledge as to the basics of trusts and estates law. Now, you are trying to cover up your mistakes by deleting your posts. Your are quite literally running away from your own words.

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Its a shame I don't know who you are; even after I tried, repeatedly, to reach out to you and discuss our differences of opinion. Talk smack about my legal positions all that you want, I am confident that I KNOW what I am talking about. Its easy for you to come in here and trash my opinions anonymously. I made extremely clear why I've deleted the material I posted: regardless of your credentials, you can appear to poke holes in what I've said all day and throw my reputation and business into doubt while you risk nothing (what is the harm in identifying yourself and stating your credentials? also as shown in your response to my deletion). Moreover, in the course of that discussion, I might misstate something in my haste, overlook a critical fact, or not state something clearly and someone will get the wrong impression or get in trouble as a result. I'll be the first to admit that I don't know everything and I don't want anyone to get into trouble as a result of a pissing match between me and you.

If you had to pay your malpractice insurance's premium and defend professional liability lawsuits, you would realize that you're statement about having "nothing to fear" is untrue. As a small practitioner I have a great deal to fear. It takes nothing to get into court but it takes a great deal money and time to get out of court. I defended professionals from litigation for a couple of years before I switched out of a litigation practice altogether and I realize two very important facts: 1. no one is perfect and I am entirely open to the notion that I might be wrong; 2. regardless of whether I am right or wrong, someone will blame me or try to hold me responsible if I post something overly substantive on this forum and someone misreads it or misunderstands it or applies what I've written to a set of facts that are not the same as or similar to the set of facts I'm discussing. It is poor practice to put one's self in that position. This is the reason why I won't have it out with you in the open forum. (Please note that I am editing my original post after the fact to add this tidbit; this is a good example of how what one writes the first time doesn't always address all of the points one might want to consider when giving a reasoned response)

As for running away from my words, I am most certainly not running away. If you'll note my post where I deleted my OP, I offered to speak with ANYONE who had questions about this issue over the telephone. Do you really think I would take that route if I weren't confident in my take on the matter? You, on the other hand, cannot even identify yourself when asked by me and other members of this forum; you openly admit that you'd rather hide behind the cloak of "ominously" (perhaps you meant anonymity). Who is running away from their words here?

As for taking shots at you, all that I've said is that I don't know who you are and I don't know the basis of your opinion but you speak as if you know something about the law. I've stated that I believe you are wrong on several points on the matter. I've merely warned members here that you may not be a legal professional (turns out that you are but without any help from you) and to be careful about taking your advice. From what I've read, its you who misunderstands trusts and estates law; especially its intersection with firearms law and, more specifically, the NFA. However, you're too unprofessional to reach out to me offline and discuss our differences in opinion. Instead you come on here and run your mouth "ominously." If you have a problem with what I've written, I'm more than happy to discuss why you think I'm wrong but the open forum is not the proper venue for that discussion for the above stated reasons.

So, if you want to act like a professional and continue this conversation offline, I'm happy to do so. We can work out our differences there. If you don't care to discuss the matter with me personally then I kindly ask you to STFU about my positions on the matter; I'll have my say when I see fit and you can have your say as you see fit. I already intend to show you the same courtesy now that I've been informed of your credentials (once again, without any help from you).

The positions you have taken with respect to trusts are at odds with Court of Appeals Precedent. You are worried that the things you said will boomerang back on you – hence the deletion of comments.

Now you want hug it out an “work out or differences”. Here are our differences: I’m right and your wrong. That’s not going to change unless the case law changes.

If you continue to post incorrect information or perform bad analysis I will continue to throw in my 2 cents.

anderson76 said:

The positions you have taken with respect to trusts are at odds with Court of Appeals Precedent. You are worried that the things you said will boomerang back on you – hence the deletion of comments.

Now you want hug it out an “work out or differences”. Here are our differences: I’m right and your wrong. That’s not going to change unless the case law changes.

If you continue to post incorrect information or perform bad analysis I will continue to throw in my 2 cents.

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Well son, call me and talk about it. You keep coming in here and talking smack. I have no intentions of hugging it out and I'm NOT running away from what I've posted no matter HOW MUCH you wish it were true. Here's the deal: you think you're right, I think I'm right. I've had other attorneys tell me I'm right. Some "anonymous" loud mouth on the internet isn't gonna change that. Feel free to call me, my info isn't hard to find, and I'll be happy to tell you why you're wrong but I'm not going to do it on the open forum no matter how many hurt feelings reports you file.

Have a great day!

Edited to add:

...and before you write another post about how wrong I am and how right you are and how I'm scared and you're the righteous interpreter of the law, please consider the following: as much as you keep telling me to have it out with you in the open forum, I have invited you to discuss the matter with me in person but you have yet to call me, e-mail, or otherwise reach out to me to show me just how awesome you are (you couldn't even respond to my pm when I first tried to reach out to you). You continue to hide behind your screen name and attempt to have what amounts to a "legal fist fight" in front of the entire forum without revealing your name, credentials, or other identifying information. Until you find the gumption to act like an adult and discuss the matter with me in person, I see no point in carrying on this conversation.

Anderson76, I don't know your qualifications but if the poor grammar, spelling and general childish tone of your posts is any indication of your capabilities as a lawyer . I will stick with Rusty.

As for your analysis, it is severely lacking. The only thing you do is say someone else is wrong and your right. Not a lot of substantive facts to back up any of your assertions.

anderson76 said:

The positions you have taken with respect to trusts are at odds with Court of Appeals Precedent. You are worried that the things you said will boomerang back on you – hence the deletion of comments.

Now you want hug it out an “work out or differences”. Here are our differences: I’m right and your wrong. That’s not going to change unless the case law changes.

If you continue to post incorrect information or perform bad analysis I will continue to throw in my 2 cents.

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I just want to add in Rusty I trust.....

Klunatic said:

Anderson76, I don't know your qualifications but if the poor grammar, spelling and general childish tone of your posts is any indication of your capabilities as a lawyer . I will stick with Rusty.

As for your analysis, it is severely lacking. The only thing you do is say someone else is wrong and your right. Not a lot of substantive facts to back up any of your assertions.

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Klunatic,

You raise excellent points.

As far as my use of poor grammar and the typos – I am guilty as charged. I sometimes bang out posts in a hurried manner, hence the typos. You are free to draw whatever inference you want from this.

Was my tone childish? I will admit that some of my comments towards Rusty were a bit heated. You are free to draw whatever inference you want from this.

If Rusty’s your guy, and you trust him – that’s cool. I did not come here to pick a fight with the man or take food off his plate. Your initial question presented a lot of issues. In providing an answer, I set forth my understanding of what a trust is. For a short period of time, Rusty stated his reasoning as to why I was wrong. He quickly deleted these comments citing concerns about liability. You are free to draw whatever inference you want from this.

My understanding of what a trust is, and is not, is very different from Rusty’s.

From his comments, which he has since deleted, I believe that he views a trust much like a corporation and that the trustees and beneficiaries are merely agents of the trust. If you take this view, then the trust is the legal owner of the trust property and the trustees and beneficiaries do not have a direct ownership interest in the property. That’s not what a trust is. When property is placed in trust the trustees are the legal owners of the trust property while the beneficiaries are the equitable owners. Both trustee and beneficiary have a recognizable property interest in the trust property.

Why does any of this matter?

MD law places transfer restrictions on Regulated Firearms and Assault Weapons. If your trust property contains these items then you must be keenly aware as to what does or does not amount to an unlawful transfer. For example, if you are adding or removing trustees or beneficiaries there may be an unlawful transfer. If you view a trust, much like a corporation, then you are likely to conclude that changing trustees and beneficiaries poses no transfer problems. However, if you share my view of what a trust is, then your conclusions might be different. As I stated above, trustees and beneficiaries have direct ownership interests in the property. Therefore, when trustees or beneficiaries are changed, a transfer of some sort is occurring. Whether this sort of transfer amounts to a transfer within the meaning of the Public Safety and Criminal Articles is a difficult question to answer.

As far as not having “substantive facts to back up any of [my] assertions.” You are absolutely correct. Neither I nor Rusty have backed up any of the positions we have taken. When providing and opinion or making an argument a competent practitioner must be able to speak with authority. By authority, I mean he must be able to support his position by reference to statue, case law, policy, appropriate treaties, ect.

I am in the process a preparing a more thorough analysis of the issues created by SB281 as they relate to firearms trusts. I will support my analysis with appropriate authority and post when completed. I hope others will scrutinize my positions taken and offer their opinions.

My principle beef with Rusty is the way he tries to shut down any discussion on these important issues. His argument boils down to this: I’m a lawyer, therefore, I’m right and your wrong -- now shut the hell up and stop posting. I believe it would be more constructive to take the following approach: If you believe that someone has posted incorrect advice or information, then identify the error and set forth an explanation as to why the poster is incorrect. Rusty attempted to do this with the positions I have taken, but was forced to quickly delete his comments. Draw your own conclusions as to why he felt it necessary to retract his substantive criticisms.

Klunatic, when you first posted, I was unaware that Rusty drafted your trust. Let me just preface this by saying I have not reviewed one of Rusty’s trusts. However, after reviewing his comments (many of which he has since deleted) I believe that he takes unique approach to the 77R problem. I will explain the 77R problem in a sec.

By unique, I mean it is not representative of how most have their gun trusts set up, especially the DIY guys. Consequently, a lot of what he has to say may not apply to those who do not have a Rusty Shackleford Gun Trust. Around here people hang on every word that Rusty says. What may be sound advice for someone using his trust may be bad advice for someone going the DIY route or recycling the MD Shooters trust. I wish he would do a better job qualifying his statements to reflect the fact that his trusts take a different approach.

So what makes a Shackleford Gun Trust different? Lets start with the 77R problem. In a pre-SB281 world, the transfer of a non h-bar AR15 or AR15 lower was lawful but regulated. It had to be done through the MSP on a Form 77R. So how do you place a regulated firearm into trust without going through the MSP? Before going any further lets revisit a few things. Rusty views the trust like a corporation, a “distinct legal entity” as he puts it. Thus a hypothetical transfer would be from the settlor to the trust. My position is that the trust is not a distinct legal. Under my rubric, the hypothetical transfer would be from the settlor to the trustee.

Here is how Rusty describes the 77R problem in his IP section. Pay particular attention to what he says about the MSP and their position on transfers to a trust:

Concerning regulated firearms in Maryland, while the firearm is technically personal property, Maryland creates title to the property by designating certain firearms as "regulated" and, therefore, registerable to an individual. The Maryland State Police does not recognize legal entities of any sort as legitimate owners of firearms. To transfer any such item to another person in the State requires filing of paperwork with the MSP. If one cannot transfer a regulated firearm to a legal entity - your trust - and instead must transfer the firearm to the trustee or trustees as the case may be, but multiple person ownership of a regulated firearm is impossible under Maryland law; how can one then reliably transfer the property to the trust? There are a great many facets to this problem but, for the sake of brevity at this point, let us just say that transferring quasi-titled property - in this case, firearms - to a trust for management clouds the title to such a degree that I would not want to be the attorney forced to sort out ownership issues when a problem concerning passage and ownership of those firearms arises. Needless to say, the problems associated with transferring non-NFA firearms to your trust far outweigh any sort of benefit in having trustees manage the non-NFA firearms under a trust agreement. Ultimately, it is better that you simply pay to have an attorney prepare a will that specifically deals with the passage of unregulated and regulated firearms in the state of Maryland.

You can find this at Post #3 here: http://www.mdshooters.com/showthread.php?t=134094 That is, if he has not already deleted or edited it.

So it looks like Rusty’s is saying that the MSP won’t recognize a transfer to a trust but will recognize a transfer to a trustee? Interesting, isn’t it? There appears to be, at least some anecdotal evidence, that the MSP shares my understanding of what a trust is and who is the owner of trust property. When I hear people stating that “for some reason the MSP wont perform a transfer to a trust”, I think to myself – well of course they won’t. In the eyes of MD law a trust cannot own property any more than my phonebook can. It is not a distinct legal entity as Rusty claims. You can dismiss my opinions but you may want to pay attention to the way that the MSP is treating firearms trusts. To be clear, I have not raised the issue with the MSP. I am solely relying on what Rusty and others have reported. If anyone has discussed this with the MSP please chime in. Also, my comments here pertain only to MD law. For the purposes of a Form 1 and Form 4 a trust meets the definition of “person”. So, at least in some respects, the BATF views the trust as a distinct legal entity. This cause confusion for some.

Although Rusty and I disagree as to what a trust is, we both recognize that there is 77R problem. Whether the transfer is from settlor to trust or from settlor to trustee – there is some sort of transfer involved. So how do you lawfully bypass the MSP?

Rusty’s answer can be found at Post #3 here: http://www.mdshooters.com/showthread.php?t=134094 (that is if he has not already deleted or edited it).

To find out why trusts work with NFA items in Maryland in light of what I've said above, well... you'll just have to reach out to me to find out.

Ok, maybe not there. I guess you have to hire him to draft a trust to find out.

However, he did manage to spill the beans responding to one of my posts (he deleted this to). Here is how I think Rusty transfers a regulated firearm to a trust without doing a 77R: He does not perform a “transfer”. What? He lets the trust “borrow” the regulated firearm.

Pretty slick – right? After all, its not really a “transfer” if you are just borrowing it. Therefore, no need to do a 77R. To be clear, I do not recommend this approach.

To pull this off, Rusty is relying on Chow v. State of Maryland (Google and you shall find). Long story short, Chow lent his gun to his buddy Nguyen. Nguyen was thinking about buying Chow’s gun but wanted to test fire the weapon before making the purchase. For unrelated reasons, the police executed a search warrant at Nguyen’s residence and discovered Chow’s gun. Chow was convicted for the unlawful transfer of a regulated firearm. Chow claimed that temporarily loaning a regulated firearm did not amount to a “transfer” within the meaning of the Public Safety Article. The Court of Appeals ultimately sided with Chow holding that:

The temporary gratuitous exchange or loan of a regulated handgun between two adult individuals, who are otherwise permitted to own and obtain a regulated handgun, does not constitute an illegal “transfer” of a firearm in violation of Maryland Code (1957, 1996 Repl. Vol., 2002 Supp.), Art. 27, § 442, in particular, subsection (d). The plain language of § 442(d), when construed in harmony with the rest of the subheading, reveals that “transfer” refers to a gratuitous permanent exchange of title or possession and does not include temporary exchanges or loans.

To recap, in a Rusty Shackleford Gun Trust the settlor temporarily loans the regulated firearm to the trust. No 77R is required because under Chow v. State this does not amount to a permanent transfer of title or possession. Maybe this was a workable solution in a pre-SB281 world. What about now? I don’t know.

Effective October 1, 2013, the Criminal Article, among other things, makes it unlawful to “transfer” or “receive” whatever meets the definition of “assault weapon.” See § 4-303. If your trust property contains an SBR AR of some sort, you should be operating on the assumption that these firearms will be treated by the MSP as Assault Weapons.

It is unclear whether the word “transfer” as used within the context of Criminal Article § 4-303 has the same meaning attributed to it by the Chow Court when it interpreted the meaning of “transfer” with the context of the Public Safety Article (also significantly amended by SB281).

The Chow Court essential acknowledged that lending a firearm, as Chow had done, met the dictionary definition of the word “transfer”. The court limited the scope of the term “transfer” by interpreting the term within the overall statutory context of the Public Safety Article:

Words can have multiple meanings and often do. And the numerous meanings of a particular word may each satisfy the ordinary and popular understanding of that word. In order to interpret a word’s specific meaning in a particular statute we look to the context in which the word is used. As we stated supra, “The plain language of a provision is not interpreted in isolation. Rather, we analyze the statutory scheme as a whole and attempt to harmonize provisions dealing with the same subject so that each may be given effect.

My concern is that if a court was to interpret the word “transfer” in the context of the newly amended Criminal Article a different result would be had. Much of the rational animating the Chow decision may not apply. Good arguments, for and against, a broader definition of the term “transfer” within the context of the Criminal Article can be made. My thoughts on this issue are still evolving. Even if the word “transfer” poses no problem, then what does it mean to “receive” an assault weapon?

So where does this leave those that now hold “assault weapons” within a Rusty Shackleford Gun Trust? My operating assumption is that Rusty bypasses 77R requirement by lending the regulated and now likely banned firearm from the settlor to the trust. This arrangement may have been a workable solution prior to SB281. I am not confident that this is still a lawful. It boils down to this: Does this arrangement amount to the unlawful transfer or receipt of an assault weapon within the meaning of the Criminal Article § 4-303. My answer is maybe.

Anderson76,

I appreciate your response and it spells out your positions and arguments in a manner that illuminates your previous assertions. The 77R question is a sticky one as both you and Rusty realize. If lending the firearm to the trust is questionable what do you propose as a solution to solve the 77R problem? Or is there not one? I do understand somethings are open to interpretation and we probably won't know the real answer until this ends up in court.

anderson76 said:

Klunatic,

You raise excellent points.

As far as my use of poor grammar and the typos – I am guilty as charged. I sometimes bang out posts in a hurried manner, hence the typos. You are free to draw whatever inference you want from this.

Was my tone childish? I will admit that some of my comments towards Rusty were a bit heated. You are free to draw whatever inference you want from this.

If Rusty’s your guy, and you trust him – that’s cool. I did not come here to pick a fight with the man or take food off his plate. Your initial question presented a lot of issues. In providing an answer, I set forth my understanding of what a trust is. For a short period of time, Rusty stated his reasoning as to why I was wrong. He quickly deleted these comments citing concerns about liability. You are free to draw whatever inference you want from this. There's no need to draw any inference. I stated clearly why I withdrew my comments. Whether YOU want to believe that I am stating my true intentions is entirely up to you but my actions and track record on this board speak louder than your words I think.

My understanding of what a trust is, and is not, is very different from Rusty’s. I don't think so; I think we have a difference of opinion as to how a trust holds property under both federal firearms law and state law and how the intersection of those laws work.

From his comments, which he has since deleted, I believe that he views a trust much like a corporation and that the trustees and beneficiaries are merely agents of the trust. In a federal context, yes. Under Maryland law, no. If you take this view, then the trust is the legal owner of the trust property and the trustees and beneficiaries do not have a direct ownership interest in the property. As the feds see it, this is correct. As Maryland sees it, no. That’s not what a trust is. When property is placed in trust the trustees are the legal owners of the trust property while the beneficiaries are the equitable owners. Both trustee and beneficiary have a recognizable property interest in the trust property. You're missing stuff here but, as stated numerous times, I'm not going to get into a "legal fist fight" with you in the open forum.

Why does any of this matter?

MD law places transfer restrictions on Regulated Firearms and Assault Weapons. If your trust property contains these items then you must be keenly aware as to what does or does not amount to an unlawful transfer. For example, if you are adding or removing trustees or beneficiaries there may be an unlawful transfer. If you view a trust, much like a corporation, then you are likely to conclude that changing trustees and beneficiaries poses no transfer problems. However, if you share my view of what a trust is, then your conclusions might be different. As I stated above, trustees and beneficiaries have direct ownership interests in the property. Therefore, when trustees or beneficiaries are changed, a transfer of some sort is occurring. Whether this sort of transfer amounts to a transfer within the meaning of the Public Safety and Criminal Articles is a difficult question to answer.

As far as not having “substantive facts to back up any of [my] assertions.” You are absolutely correct. Neither I nor Rusty have backed up any of the positions we have taken. When providing and opinion or making an argument a competent practitioner must be able to speak with authority. By authority, I mean he must be able to support his position by reference to statue, case law, policy, appropriate treaties, ect.

I am in the process a preparing a more thorough analysis of the issues created by SB281 as they relate to firearms trusts. I will support my analysis with appropriate authority and post when completed. I hope others will scrutinize my positions taken and offer their opinions.

My principle beef with Rusty is the way he tries to shut down any discussion on these important issues. His argument boils down to this: I’m a lawyer, therefore, I’m right and your wrong -- now shut the hell up and stop posting. I believe it would be more constructive to take the following approach: If you believe that someone has posted incorrect advice or information, then identify the error and set forth an explanation as to why the poster is incorrect. Rusty attempted to do this with the positions I have taken, but was forced to quickly delete his comments. Draw your own conclusions as to why he felt it necessary to retract his substantive criticisms. You're really trying to press this point. I quickly deleted my comments because I realize that my initial comments do not always reflect what I truly intend to say and then I have to go back and edit what I've written. Working 80 hrs a week, I have little time to go back and reread my posts and edit them four or five times to make sure that everything I write is truly reflective and clear about what I wanted to say in the first place. Others have the opportunity to read my post above about my liability fears. Please also note that I have never shied away from making the same comments in person, over the telephone, or via e-mail to clients or prospective clients when they've reached out to me. It always comes down to protecting my livelihood and my family's financial well-being anderson76. I'm not sure why you do not understand this very important facet of running a legal business. Leaving comments on an open internet forum for everyone (member and non-member alike) to read and construe as they see fit, especially on a forum where I am listed as an attorney and present myself as a legal professional, is not a wise idea. Perhaps this is why you refuse to identify yourself and your credentials but I am not you and I am in a different position.

Klunatic, when you first posted, I was unaware that Rusty drafted your trust. Let me just preface this by saying I have not reviewed one of Rusty’s trusts. However, after reviewing his comments (many of which he has since deleted) I believe that he takes unique approach to the 77R problem. I will explain the 77R problem in a sec.

By unique, I mean it is not representative of how most have their gun trusts set up, especially the DIY guys. Consequently, a lot of what he has to say may not apply to those who do not have a Rusty Shackleford Gun Trust. Around here people hang on every word that Rusty says. I don't think this statement is true. Many people have asked me to better explain my reasoning - attorney and non-attorney alike. However, I am flattered that you believe the truth of your statement. What may be sound advice for someone using his trust may be bad advice for someone going the DIY route or recycling the MD Shooters trust. I wish he would do a better job qualifying his statements to reflect the fact that his trusts take a different approach. I wish you'd do a better job of identifying yourself and your credentials as well, qualifying your representations on this forum, etc. but we all have regrets don't we. Sounds like a case of the pot calling the kettle black.

So what makes a Shackleford Gun Trust different? Lets start with the 77R problem. In a pre-SB281 world, the transfer of a non h-bar AR15 or AR15 lower was lawful but regulated. It had to be done through the MSP on a Form 77R. So how do you place a regulated firearm into trust without going through the MSP? Before going any further lets revisit a few things. Rusty views the trust like a corporation, a “distinct legal entity” as he puts it. Thus a hypothetical transfer would be from the settlor to the trust. My position is that the trust is not a distinct legal. Under my rubric, the hypothetical transfer would be from the settlor to the trustee.

Here is how Rusty describes the 77R problem in his IP section. Pay particular attention to what he says about the MSP and their position on transfers to a trust:

Concerning regulated firearms in Maryland, while the firearm is technically personal property, Maryland creates title to the property by designating certain firearms as "regulated" and, therefore, registerable to an individual. The Maryland State Police does not recognize legal entities of any sort as legitimate owners of firearms. To transfer any such item to another person in the State requires filing of paperwork with the MSP. If one cannot transfer a regulated firearm to a legal entity - your trust - and instead must transfer the firearm to the trustee or trustees as the case may be, but multiple person ownership of a regulated firearm is impossible under Maryland law; how can one then reliably transfer the property to the trust? There are a great many facets to this problem but, for the sake of brevity at this point, let us just say that transferring quasi-titled property - in this case, firearms - to a trust for management clouds the title to such a degree that I would not want to be the attorney forced to sort out ownership issues when a problem concerning passage and ownership of those firearms arises. Needless to say, the problems associated with transferring non-NFA firearms to your trust far outweigh any sort of benefit in having trustees manage the non-NFA firearms under a trust agreement. Ultimately, it is better that you simply pay to have an attorney prepare a will that specifically deals with the passage of unregulated and regulated firearms in the state of Maryland.

You can find this at Post #3 here: http://www.mdshooters.com/showthread.php?t=134094 That is, if he has not already deleted or edited it.

So it looks like Rusty’s is saying that the MSP won’t recognize a transfer to a trust but will recognize a transfer to a trustee? That's not what I'm saying at all; you're reading your own inferences and biases about my statement into that statement. All that I am saying is that one cannot reliably transfer NON-NFA ITEMS into a trust and therefore a trust serves little purpose in handling non-NFA firearms. Interesting, isn’t it? There appears to be, at least some anecdotal evidence, that the MSP shares my understanding of what a trust is and who is the owner of trust property. When I hear people stating that “for some reason the MSP wont perform a transfer to a trust”, I think to myself – well of course they won’t. In the eyes of MD law a trust cannot own property any more than my phonebook can. It is not a distinct legal entity as Rusty claims. You can dismiss my opinions but you may want to pay attention to the way that the MSP is treating firearms trusts. To be clear, I have not raised the issue with the MSP. I am solely relying on what Rusty and others have reported. If anyone has discussed this with the MSP please chime in. I have but you don't believe what I say so what's the point in reiterating it. Also, my comments here pertain only to MD law. For the purposes of a Form 1 and Form 4 a trust meets the definition of “person”. So, at least in some respects, the BATF views the trust as a distinct legal entity. This cause confusion for some. I don't think it causes confusion for anyone. The feds view a trust one way and the state views the trust another. Both legal views are prima facie legitimate as I know of no case law nullifying either.

Although Rusty and I disagree as to what a trust is, (we don't but I think you fail to take into account the fact that there is disagreement between state and federal law as to what a trust "is" and that disagreement creates a nuanced situation that one must address) we both recognize that there is 77R problem. Whether the transfer is from settlor to trust or from settlor to trustee – there is some sort of transfer involved. Not necessarily. So how do you lawfully bypass the MSP?

Rusty’s answer can be found at Post #3 here: http://www.mdshooters.com/showthread.php?t=134094 (that is if he has not already deleted or edited it).

To find out why trusts work with NFA items in Maryland in light of what I've said above, well... you'll just have to reach out to me to find out.

Ok, maybe not there. I guess you have to hire him to draft a trust to find out. So what? Why should I give out free legal advice to everyone on the internet when I've invested my time and energy into devising solutions to these complex problems?

However, he did manage to spill the beans responding to one of my posts (he deleted this to). Here is how I think Rusty transfers a regulated firearm to a trust without doing a 77R: He does not perform a “transfer”. What? He lets the trust “borrow” the regulated firearm. Nope; but you couldn't be bothered to contact me to discuss how I manage this feat. Please stop misrepresenting my opinions and legal advice on this matter. You clearly have no idea how I am managing this issue and, as you've said, you only have what I've written here to rely upon in forming your responses. It's interesting that what I post here is usually thoughts and general direction that I have regarding NFA trusts, federal law, and Maryland law and not detailed legal advice on any particular topic. Did you ever stop to consider that what I post here IS NOT the detailed explication of my reasoning and methods that I provide to those folks who pay for my services? Do you ever consider that, for liability reasons, I try to refrain from providing too detailed information on the law? Probably not, which is why you're misrepresenting my opinions on this matter.

Pretty slick – right? After all, its not really a “transfer” if you are just borrowing it. Therefore, no need to do a 77R. To be clear, I do not recommend this approach.

To pull this off, Rusty is relying on Chow v. State of Maryland (Google and you shall find). The only correct part of this statement is Chow v. MD. The rest is incorrect. Long story short, Chow lent his gun to his buddy Nguyen. Nguyen was thinking about buying Chow’s gun but wanted to test fire the weapon before making the purchase. For unrelated reasons, the police executed a search warrant at Nguyen’s residence and discovered Chow’s gun. Chow was convicted for the unlawful transfer of a regulated firearm. Chow claimed that temporarily loaning a regulated firearm did not amount to a “transfer” within the meaning of the Public Safety Article. The Court of Appeals ultimately sided with Chow holding that:

The temporary gratuitous exchange or loan of a regulated handgun between two adult individuals, who are otherwise permitted to own and obtain a regulated handgun, does not constitute an illegal “transfer” of a firearm in violation of Maryland Code (1957, 1996 Repl. Vol., 2002 Supp.), Art. 27, § 442, in particular, subsection (d). The plain language of § 442(d), when construed in harmony with the rest of the subheading, reveals that “transfer” refers to a gratuitous permanent exchange of title or possession and does not include temporary exchanges or loans.

To recap, in a Rusty Shackleford Gun Trust the settlor temporarily loans the regulated firearm to the trust. Wrong again. No 77R is required because under Chow v. State this does not amount to a permanent transfer of title or possession. Maybe this was a workable solution in a pre-SB281 world. What about now? I don’t know. If you don't know, then why are you trashing my position? There are a myriad of ways to disagree with me without attempting to damage my reputation with the members of this forum. Frankly, I've come to conclude that mission is your only mission.

Effective October 1, 2013, the Criminal Article, among other things, makes it unlawful to “transfer” or “receive” whatever meets the definition of “assault weapon.” See § 4-303. If your trust property contains an SBR AR of some sort, you should be operating on the assumption that these firearms will be treated by the MSP as Assault Weapons.

It is unclear whether the word “transfer” as used within the context of Criminal Article § 4-303 has the same meaning attributed to it by the Chow Court when it interpreted the meaning of “transfer” with the context of the Public Safety Article (also significantly amended by SB281). Why would it change absent some case law on this point? Until there is another case countermanding Chow, there is no change regardless of the wishful thinking on the part of Martin O'Malley, Doug Gansler, and the Superintendent of the MSP.

The Chow Court essential acknowledged that lending a firearm, as Chow had done, met the dictionary definition of the word “transfer”. The court limited the scope of the term “transfer” by interpreting the term within the overall statutory context of the Public Safety Article:

Words can have multiple meanings and often do. And the numerous meanings of a particular word may each satisfy the ordinary and popular understanding of that word. In order to interpret a word’s specific meaning in a particular statute we look to the context in which the word is used. As we stated supra, “The plain language of a provision is not interpreted in isolation. Rather, we analyze the statutory scheme as a whole and attempt to harmonize provisions dealing with the same subject so that each may be given effect.

My concern is that if a court was to interpret the word “transfer” in the context of the newly amended Criminal Article a different result would be had. Much of the rational animating the Chow decision may not apply. Good arguments, for and against, a broader definition of the term “transfer” within the context of the Criminal Article can be made. My thoughts on this issue are still evolving. Even if the word “transfer” poses no problem, then what does it mean to “receive” an assault weapon?

So where does this leave those that now hold “assault weapons” within a Rusty Shackleford Gun Trust? This point is not something you should pontificate upon as you obviously have no idea what my position is with regard to NFA trusts and Maryland's new gun laws. My operating assumption is that Rusty bypasses 77R requirement by lending the regulated and now likely banned firearm from the settlor to the trust. Your assumption is wrong. This arrangement may have been a workable solution prior to SB281. I am not confident that this is still a lawful. It boils down to this: Does this arrangement amount to the unlawful transfer or receipt of an assault weapon within the meaning of the Criminal Article § 4-303. My answer is maybe.

Click to expand...

A very thoughtful post. I want YOU to note - and everyone else - that my PRIMARY objection to your posts was that you were providing legal analysis and commentary (and what seemed to amount to the provision of legal advice under the Rules of Professional Conduct) without identifying yourself as a Maryland-licensed attorney. There are many learned laymen on the web that like to play internet lawyer or provide legal advice without the proviso that the information said person is providing is not legal advice and said person is not a lawyer. Once you were identified as a lawyer I withdrew my objection to your posts in general; at the very least, I reasonably suspect that you're credentialed and probably have some sort of basis for your opinion. That said, I still don't know why you cannot and will not identify yourself to me - another legal professional - as a professional courtesy? Why didn't you simply ID yourself when I PM'd you originally? Had you done so, I don't think our view of each other or each other's opinions would have soured to the degree that it has; however, what's done is done. I manage to get along with all of the other attorneys that post to this forum reasonably well.

As for what you've posted, you've misrepresented my position on trusts so I've responded in limited fashion in red in-line with your post to correct the record on the matter. I respectfully request that you refrain from commenting on my legal views and opinions on this matter as you have no insight or information into how I legally handle these types of matters other than what I've briefly posted and then withdrawn. You clearly do not understand my position on this matter and have even misread what I've plainly written in my subforum. Please see above.

As esqappellate posts here ...

http://www.mdshooters.com/showpost.php?p=2780542&postcount=82

was there discussion of Chow during the SB-281 proceedings, especially in clarifying issues of temporary receipt (or loan) vs transfer?

Is this discussion closed? I waded through all of the muck and am still unclear. Was the original question ever answered? Is there even a clear answer?

Is having someone in a trust or adding someone to a trust and handing them a "grandfathered"/banned weapon considered a transfer? Is this legal?

Thanks

PS I am not seeking legal advice and will not consider the following as such--just curious.

it is still an open question and it would be legal advice you really are looking for. I have to get back to Rusty about my trust but just haven't had the time or urgent need. I am going to follow up with you this week Rusty.

Thx again for the help Rusty.

Kernal F. said:

Is this discussion closed? I waded through all of the muck and am still unclear. Was the original question ever answered? Is there even a clear answer?

Is having someone in a trust or adding someone to a trust and handing them a "grandfathered"/banned weapon considered a transfer? Is this legal?

Thanks

PS I am not seeking legal advice and will not consider the following as such--just curious.

Click to expand...

Its not a question of transfer because you cannot transfer a banned firearm in Maryland post Oct 1, 2013. Its a question of "possession" and "receipt." Feel free to contact me if you need assistance with this issue.

Rusty Shackleford said:

Its not a question of transfer because you cannot transfer a banned firearm in Maryland post Oct 1, 2013. Its a question of "possession" and "receipt." Feel free to contact me if you need assistance with this issue.

Click to expand...

It is still very much a question of transfer. Effective October 1, 2013, Section 4-303 of the Criminal Law Article prohibits, among other things, the “transfer” of whatever meets the definition of Assault Weapon. Both trustee and beneficiary have legally recognized property interests in trust property. When property is placed in trust, or when a trustee or beneficiary is added, there is necessarily, a transfer of some sort occurring. The question that must be answered is whether such action amounts to an unlawful “transfer” within the meaning of CL § 4-303. IMO the answer is a most definite maybe.

For many of us the issue of unlawful transfers, in the context of trusts, maybe a moot point. As Rusty correctly points outs CL § 4-303 also bans the possession and receipt of Assault Weapons, subject to certain exceptions. The most relevant exception, is contained the “grandfather clause” of CL § 4-303(b)(3):

A person who lawfully possessed, has a purchase order for, or completed an application to purchase an assault long gun or a copycat weapon before October 1, 2013, may: (i) possess and transport the assault long gun or copycat weapon; . . .

(elsewhere in the Code Assault Weapon is defined to include “assault long gun” or “copycat weapon”)

If the point of adding trustees or beneficiaries to a trust is to increase the number of persons who may lawfully possess the NFA times, then your threshold inquiry should be weather the potential new trustee or beneficiary falls within the class of persons described by the “grandfather clause” of CL § 4-303(b)(3) with respect to each Assault Weapon.

Then its time to worry about the word “transfer” and its meaning within the context of the restrictions placed upon Assault Weapons by virtue of CL § 4-303. THIS MAY BE OF PARTICULAR IN-TERESTS FOR THOSE OF YOU USING A RUSTY SHACKELFORD GUN TRUST.

In a pre-SB281 world, we only had to contend with the transfer and possession restrictions placed upon Regulated Firearms by virtue of the Public Safety Article, §§ 5-101 through 5-146. Section 5-124 of the Public Safety article requires Regulated Firearms to be transferred via Form 77R. This then raises the following question: So how do you place a Regulated Firearm in trust without going through the MSP? Lets call this the “77R problem”. In my previous post I have speculated as to how Rusty gets around the 77R problem with his trusts. Rusty has indicated that my statements are inaccurate. My original comments are in black while Ruty’s responses are in red:

Here is how I think Rusty transfers a regulated firearm to a trust without doing a 77R: He does not perform a “transfer”. What? He lets the trust “borrow” the regulated firearm. Nope; but you couldn't be bothered to contact me to discuss how I manage this feat. Please stop misrepresenting my opinions and legal advice on this matter. You clearly have no idea how I am managing this issue and, as you've said, you only have what I've written here to rely upon in forming your responses. . . .

. . .

Pretty slick – right? After all, its not really a “transfer” if you are just borrowing it. Therefore, no need to do a 77R. To be clear, I do not recommend this approach.

To pull this off, Rusty is relying on Chow v. State of Maryland (Google and you shall find). The only correct part of this statement is Chow v. MD. The rest is incorrect. Long story short, Chow lent his gun to his buddy Nguyen. . . .

. . .

To recap, in a Rusty Shackleford Gun Trust the settlor temporarily loans the regulated firearm to the trust. Wrong again. No 77R is required because under Chow v. State this does not amount to a permanent transfer of title or possession. Maybe this was a workable solution in a pre-SB281 world. What about now? I don’t know. If you don't know, then why are you trashing my position? There are a myriad of ways to disagree with me without attempting to damage my reputation with the members of this forum. Frankly, I've come to conclude that mission is your only mission.

. . .

It is unclear whether the word “transfer” as used within the context of Criminal Article § 4-303 has the same meaning attributed to it by the Chow Court when it interpreted the meaning of “transfer” with the context of the Public Safety Article (also significantly amended by SB281). Why would it change absent some case law on this point? Until there is another case countermanding Chow, there is no change regardless of the wishful thinking on the part of Martin O'Malley, Doug Gansler, and the Superintendent of the MSP.

. . .

So where does this leave those that now hold “assault weapons” within a Rusty Shackleford Gun Trust? This point is not something you should pontificate upon as you obviously have no idea what my position is with regard to NFA trusts and Maryland's new gun laws. My operating assumption is that Rusty bypasses 77R requirement by lending the regulated and now likely banned firearm from the settlor to the trust. Your assumption is wrong. This arrangement may have been a workable solution prior to SB281. I am not confident that this is still a lawful. It boils down to this: Does this arrangement amount to the unlawful transfer or receipt of an assault weapon within the meaning of the Criminal Article § 4-303. My answer is maybe.

Rusty’s quote of my comments and his responses are contained in his Post #30 in this thread (that is if he has not deleted the material, as he has a tendency to do). I have not reviewed one of Rusty’s trusts. My understanding of the trust arrangement Rusty uses solve the 77R problem is based off of a series of comments he made while attempting to discredit information I had previously posted on this subject. He has since deleted much of what he has posted in response to my comments.

Rusty Shackleford said:

Something has always troubled me about my issues with Anderson76 and our differences in opinion over the effects of SB281 and trust law. After a long soak in the tub, I've figured out what is bothering me: Anderson76 is throwing out information in relative anonymity and I am countering that information without the cloak of anonymity. He/She could challenge me all day and all night, post scenarios, or just plain impugn my judgment without ever incurring any damage to his/her reputation or business while I might sustain a great deal of damage regardless of whether I am right or wrong in the end. In other words, I am incurring a great deal of liability and exposure on this matter while Anderson76 essentially risks nothing. For that reason, I am deleting my substantive posts on this matter and merely leaving my opinion of Anderson76's opinion. I am more than happy to talk through the issues presented in this thread over the telephone; please feel free to call me.

I'm warning all of you now: be careful about what Anderson76 is telling you. He sounds educated and maybe he's an attorney but he is wrong or misguided on many of these issues. Please think twice before taking his analysis as gospel.

Click to expand...

If anyone believes that my only intention here is to fabricate comments in an effort to damage Rusty’s reputation – JUST DISREGARD WHAT I HAVE TO SAY.

Even if my description of what is occurring in Rusty’s trust if off the mark; He does acknowledge that his trust architecture is reliant on the holding in Chow v. State of Maryland to get around the 77R problem. My original comments are in black while Ruty’s responses are in red:

To pull this off, Rusty is relying on Chow v. State of Maryland (Google and you shall find). The only correct part of this statement is Chow v. MD. The rest is incorrect

More specifically, he relies on the Chow Court’s interpretation of the term “transfer” to keep his trust arrangement lawful. Chow stands for the following proposition: Within the meaning of Former Art. 27, § 442(b), (now re-codified as Public Safety Article, Title 5. Firearms, Subtitle 1. Regulated Firearms, § 5-124(a)(1)), the word “transfer” can only refer to a permanent exchange of title or possession and does not include gratuitous temporary exchanges or loans. The meaning that the Chow Court gave to the word “transfer” is much more narrow as compared to the modern dictionary definition of the term. The court was able to narrow the definition of the term “transfer” by inter-preting it within the statutory context of Former Art. 27 §§ 441 est seq., now re-codified as §§ 5-101 est seq. of the Public Safety Article. Stated differently, it was the statutory context in which the term “transfer” was used which supplied its meaning.

So what? Keep reading:

SB281 Amended Section 4-303 of the Criminal Article by creating a new class of weapons called Assault Weapons and, subject to certain exceptions, prohibits their transfer (among other things). If prior to October 1, 2013 your trust property contained a “regulated” long gun, then after October 1, 2013 your trust property now contains an Assault Weapon. The term “transfer”, as used in the Criminal Article, is used in a very different statutory context than the term “transfer” as used in the Public Safety article. Consequently, it is dangerous to assume that the term “transfer” as used in the Public Safety Article, which deals with Regulated Firearms, has the same meaning as the term “transfer” as used in the Criminal Law Article which deals with the evil Assault Weapons.

Lets take a closer look at the Chow decision:

In Chow v. State the Court of Appeals addressed the meaning of the word “transfer” as it was used in former Art. 27 § 442(d). Just a brief re-cap of the facts. Chow was contemplating selling a regulated firearm to his friend. He loaned the firearm to his buddy to test fire the weapon. On these facts Chow was convicted for the unlawful transfer of a Regulated Firearm. Chow appealed arguing that loaning a Regulated Firearms did not amount to a “transfer”.

Former Article 27 § 442(d) provided the following transfer restriction on regulated firearms:

(d) Sale by other than regulated firearms dealer. –

(1) A person who is not a regulated firearms dealer may not sell, rent, transfer, or purchase any regulated firearm until after 7 days shall have elapsed from the time an application to purchase or transfer shall have been executed by the prospective purchaser or transferee, in triplicate, and the origin al copy is forwarded by a regulated firearms dealer to the Secretary.”

Former Art. 27 § 442(d) was repealed and re-enacted, without substantive change, as § 5-124(a)(1) of the Public Safety Article. It currently reads as follows:

(a) Seven-day waiting period. --

(1) A person who is not a licensee may not sell, rent, transfer, or purchase a regulated firearm until after 7 days following the time a firearm application is executed by the firearm applicant, in triplicate, and the original is forwarded by a licensee to the Secretary.

The Chow Court essential acknowledged the temporary loan of a Regulated Firearm was a “transfers” within the modern commonly accepted definition of the term. To narrow the definition of the term “transfer” the court interpreted the term within the entire context Former Art. 27 §§ 441 est seq., now re-codified as §§ 5-101 est seq. of the Public Safety Article,: “[W]e analyze the statutory scheme as a whole and attempt to harmonize provisions dealing with the same subject so that each may be given effect.” “While the Regulated Firearms subheading does not specifically define the term “transfer,” it does use the term several times throughout its various sections.”

The point I want to make here is: CONTEXT MATTERS. The context in which the term “transfer” is used was critical to the outcome of the case: “The context in which the term “transfer” is used in the Regulated Firearms subheading’s statutory scheme as a whole must be harmonized with its use in § 442(d).” The court then examined how the word transfer was used in former sections 441(f), 441(t), 441(w), 4442 (b), and 442(d). The court even went so far as to examine MSP Form 77R-1. After examining the statutory context in which the word “transfer” was used in the court held that:

“Transfer,” as defined a t the time of the enactment of § 442(d) and read in harmony with the rest of the Regulated Firearms subheading, has the meaning of a permanent gratuitous transfer, rather than a temporary transfer. And we will no t “‘construe the statute with forced or subtle interpretations that limit or extend its application.’” . . . “Transfer” can be ascribed the meaning of “a permanent exchange of title or possession” and not be rendered surplusage, superfluous, meaningless, or nu-gatory. Each term in the litany laid out in § 44 2(d) has its own meaning. The term “sell” contemplates a permanent exchange for consideration from a seller or transferor of a regulated firearm to a buyer. Conversely, the term “purchase” contemplates a permanent exchange for consideration to a buyer or transferee of a regulated firearm from a seller. “Rent,” as discussed above and defined in § 4 41(t), contemplates a temp orary transfer for consideration. None of these words, “sell,” purchase,” or “rent” can be defined to include the permanent gratuitous transfer of a firearm. That type of permanent exchange is covered by the word “transfer” and that is its purpose in the statute, i.e., a permanent gratuitous transfer. Read in context with the rest of the Regulated Firearms subheading, the term “transfer,” as used in § 442(d), is distinguishable from the words “sell,” “rent” and “purchase” in that it means any other permanent exchange of title or possession of a firearm even if it is without consideration. This covers situations of permanent exchange that the other terms fail to ad dress, i.e., in the case of a gift or bequeathment. Therefore, “transfer,” as used in § 442(d), is not surplusage, superfluous, meaningless, or nugatory.


Like I already stated, Chow stands for the following proposition: Within the meaning of Former Art. 27, § 442(b), (now re-codified as Public Safety Article, Title 5. Firearms, Subtitle 1. Regulated Firearms, § 5-124(a)(1)), the word “transfer” can only refer to a permanent exchange of title or possession and does not include gratuitous temporary exchanges or loans.

SB281 amended Section 4-303 of the Criminal Article by creating a new class of weapons called Assault Weapons and, subject to certain limited exceptions, imposed significant restrictions on their transportation, sale, transfer, receipt and possession. Much of what was once just a Regulated Firearm is now also an Assault Weapon. The Chow decision provided a definition of the word “transfers” as it applies to transfers of Regulated Firearms. Does the Chow definition of “transfer” also apply to the transfer of Assault Weapons? It is impossible to provide a definitive answer (at least in my humble opinion).

After SB281, the Criminal Law Article, Title 4. Weapons Crimes, Subtitle 3. Assault Weapons and Detachable Magazines, § 4-303, in pertinent part, now provides:

§ 4-303. Assault weapons -- Prohibited
(a) In general. -- Except as provided in subsection (b) of this section, a person may not:
(1) transport an assault weapon into the State; or
(2) possess, sell, offer to sell, transfer, purchase, or receive an assault weapon.

Now compare this Former Article 27 § 442(d), which was the subject of interpretation by the Chow Court:

(d) Sale by other than regulated firearms dealer. –

(1) A person who is not a regulated firearms dealer may not sell, rent, transfer, or purchase any regulated firearm until after 7 days shall have elapsed from the time an application to purchase or transfer shall have been executed by the prospective purchaser or transferee, in triplicate, and the origin al copy is forwarded by a regulated firearms dealer to the Secretary.”

Can you start to see the different context in which the term “transfer” is used? Now take a look at the overall statutory structure of Former Art. 27 §§ 441 est seq., now re-codified as Public Safety Article, Title 5. Firearms, Subtitle 1. Regulated Firearms. Compare this with the overall statutory structure of Criminal Law Article, Title 4. Weapon Crimes, Subtitle 3. Assault Weapons and Detachable Magazines. The differences should be apparent. The former regulates the transfer and possession of certain lawful firearms among non-disqualified individuals, while the latter, subject to certain limited exceptions, bans Assault Weapons. You can view the Code as amended by SB281 on the lexisnexis database located here: http://www.lexisnexis.com/hottopics/mdcode/

The Chow Court also found support for a narrow interpretation of the term “transfer” from legislative intent. It described the legislative intent behind former Article 27 §§ 441 est esq. as follows:

The purpose of the legislative scheme is to regulate sales, secondary sales, and to prohibit multiple permanent purchase transactions of regulated firearms in order to disrupt gun trafficking in the illegal market, not temporary exchanges or loans of regulated firearms between adults legally permitted to possess regulated firearms.

In the wake of the massacre at Sandy Hook, our legislature, in their infinite wisdom, concluded that certain firearms are so dangerous that they should not be owned by the general public, subject to very limited exceptions. Accordingly, they passed a ban on Assault Weapons and titled the applicable section as follows: “§ 4-303. Assault weapons – Prohibited”. How do you believe a reviewing court would describe the legislative intent and the statutory scheme behind the prohibition on Assault Weapons contained in the Criminal Article? In this context, would a reviewing court afford the term “transfer” a narrow or broad interpretation? Put differently, would they interpret the term “transfer” in such a way so as to narrow or broaden the population of persons who have access to the evil Assault Weapon?

So what are the implications for those using a Rusty Shackelford Gun Trust? I have speculated as to how Rusty structures his trusts. Rusty has indicated that I am off base but provides no explanation as to why. He does acknowledge that he relies on the Chow Court’s narrow interpretation of the term “transfer” to keep his trust arrangement lawful. This may have been a lawful arrangement in a pre-SB281 world when all we had to contend with were the restrictions placed upon Regulated Firearms. SB281 basically transformed “regulated” long guns into Assault Weapons and imposed restrictions on their “transfer” (among other restrictions). For the reasons set forth above, the word “transfer” as it applies to Assault Weapons may have a broader meaning that than narrow definition adopted by the Chow Court’s interpretation of the term as it is applied to Regulated Firearms. Consequently, while Rusty’s trust arrangement may be in compliance with the restrictions placed upon Regulated Firearms it may run afoul of the restrictions placed upon Assault Weapons.

For anyone who is reading anderson76's diatribe against me, here's my response:

He obviously has all the time in the world to write detailed and drawn out responses to everything that I write. For someone who isn't here to sell himself or denigrate my work, he sure spends a great deal of time talking about my work product and trying to deconstruct my legal position (interestingly, in the absence of any knowledge about my legal position). I, honestly, do not have the time to address in detail his personal attacks on me and, more importantly, his attacks on my reasoning. Also, I think it drives anderson76 bonkers that I won't explain to him - obviously a person who likes to think he is "right" - how it all works. Point blank, here is the reason why anderson76 will probably never figure out why my trust's work:

He hasn't bothered to contact me or speak with me about my legal position on the matter of trusts; therefore, he hasn't a clue as to what my legal position is with regard to trusts and Maryland law. As he is ignorant of my legal position on trusts, he tries to run a campaign against my position through innuendo and outright misrepresentation of my position all the while hiding behind the cloak anonymity. I, unfortunately, cannot hide for obvious reasons; moreover, I refuse to act as childishly as anderson76 is currently acting.

I must ask, if anderson76 does not know how I make NFA trusts work in Maryland, do you think he is qualified and competent to speak about my trusts?

If you are reading this and are curious about my legal positions on this topic, please feel free to contact me and I will happily assist you. Ask anyone on this forum who has dealt with me and they will tell you that I stand behind my work and am happy to explain my positions within the attorney-client relationship.

Rusty Shackleford said:

For anyone who is reading anderson76's diatribe against me, here's my response:

He obviously has all the time in the world to write detailed and drawn out responses to everything that I write. For someone who isn't here to sell himself or denigrate my work, he sure spends a great deal of time talking about my work product and trying to deconstruct my legal position (interestingly, in the absence of any knowledge about my legal position). I, honestly, do not have the time to address in detail his personal attacks on me and, more importantly, his attacks on my reasoning. Also, I think it drives anderson76 bonkers that I won't explain to him - obviously a person who likes to think he is "right" - how it all works. Point blank, here is the reason why anderson76 will probably never figure out why my trust's work:

He hasn't bothered to contact me or speak with me about my legal position on the matter of trusts; therefore, he hasn't a clue as to what my legal position is with regard to trusts and Maryland law. As he is ignorant of my legal position on trusts, he tries to run a campaign against my position through innuendo and outright misrepresentation of my position all the while hiding behind the cloak anonymity. I, unfortunately, cannot hide for obvious reasons; moreover, I refuse to act as childishly as anderson76 is currently acting.

I must ask, if anderson76 does not know how I make NFA trusts work in Maryland, do you think he is qualified and competent to speak about my trusts?

If you are reading this and are curious about my legal positions on this topic, please feel free to contact me and I will happily assist you. Ask anyone on this forum who has dealt with me and they will tell you that I stand behind my work and am happy to explain my positions within the attorney-client relationship.

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I have been following this thread; no offense Rusty, but (Anderson76) raises some valid points. Your legal position (trusts)with regard to SB281 assault weapons / 77r, has never faced the courts and won. So your legal position and reasoning may not be the same as the courts and they get the final say; and the client pays the price. I have a friend who does only trusts for big money people/foundations (the whole firm is trusts and estate planning)- no DWI's, sue your neighbor or general law; just trusts with masters in taxation LLM. They have tried and true trusts to shield assets from taxes that have stood the test in courts with the IRS. But sometimes they (take an aggressive position based on their interpretation of the law or prior case) and lose in court. The only downside to the client is they pay what they owe, possible penalties/interest- no one goes to jail.

Just my observations as I am not an attorney-

11b10 said:

I have been following this thread; no offense Rusty, but he raises some valid points. Your legal position (trusts)with regard to SB281 assault weapons has never faced the courts and won. So your legal position and reasoning may not be the same as the courts and they get the final say; and the client pays the price. I have a friend who does only trusts for big money people/foundations (the whole firm is trusts and estate planning)- no DWI's, sue your neighbor or general law; just trusts with masters in taxation LLM. They have tried and true trusts to shield assets from taxes that have stood the test in courts with the IRS. But sometimes they (take an aggressive position based on their interpretation of the law or prior case) and lose in court. The only downside to the client is they pay what they owe, possible penalties/interest- no one goes to jail.

Just my observations as I am not an attorney-

Click to expand...

I haven't said that anderson76 does not raise valid points. All that I've said is that he is not competent to comment on how I legally position my clients with regard to NFA trusts because he has no idea how I manage this issue. Also, you're more than welcome to reach out to me to discuss these matters; I don't see why you cannot. If you have concerns, I am happy to discuss them with you. However, its one thing to say that anderson76 raises valid points but its quite another to imply that I am going to send someone to jail when you have no basis for criticizing my position on trusts either. If you have some basis to show that my legal position with regard to NFA trusts is untenable in Maryland courts and not in accordance with Maryland law, please feel free to give me a call.

That said, in juxtaposition to your point, I offer the fact that ANYONE who deals with NFA items or, quite simply, firearms in general runs the risk of going to jail; especially in Maryland. I encounter these issues frequently in my practice and I can tell you without a doubt that every person on this board who owns a gun is one careless mistake away from three hots and cot.