Dispatches from the Trenches of America's Great Gun Trust Wars

ABSTRACT-Without question, the national dialogue pertaining to the right to bear arms and the possible expansion of gun control regulations is shaping up to be one of the more heated political topics of the twenty-first century. At the moment, fervent participants on both sides of this ongoing debate have focused a spotlight on an estate planning instrument commonly referred to as a "gun trust." Typically, estate planning products rarely cause the kind of nationally impassioned discussion as seen with gun trusts. So why have trusts, a commonly used estate planning tool, become entangled in this lively, and often vitriolic, national discussion concerning the purchase and possession of firearms? Moreover, is recent attention paid to these trusts beneficial to, or distracting from, the broader national discourse concerning federal firearms policy? Unfortunately, America's gun trust wars have been waged by both sides in an atmosphere of frenzied controversy littered with misinformation. Regardless of the tenor of the debate concerning gun rights and gun control, the fact remains that millions of Americans own firearms, and they have legitimate estate planning concerns. As detailed in this Essay, firearms in an estate can be problematic and may expose an executor, fiduciary, or beneficiary to severe criminal penalties. Although there might be some need for tailored tightening of the laws concerning the transfers to trusts, gun trusts are a legitimate and important estate planning technique with the ability to alleviate the troublingly prejudicial access to guns inherent in current laws. This Essay will examine the legitimate, worrisome, and inaccurate concerns surrounding the uses of gun trusts.INTRODUCTIONWithout question, the national dialogue pertaining to the right to bear arms and the possible expansion of gun control regulations is shaping up to be one of the more heated political topics of the twenty-first century. At the moment, fervent participants on both sides of this ongoing debate have focused a spotlight on an estate planning instrument commonly referred to as a "gun trust."1 Typically, estate planning products rarely cause the kind of nationally impassioned discussion as seen with gun trusts. So why have trusts, a commonly used estate planning tool, become entangled in this lively, and often vitriolic, national discussion concerning the purchase and possession of firearms? Moreover, is recent attention paid to these trusts beneficial to, or distracting from, the broader national discourse concerning federal firearms policy? Unfortunately, America's gun trust wars have been waged by both sides in an atmosphere of frenzied controversy littered with misinformation. This Essay will examine the legitimate, worrisome, and inaccurate concerns surrounding the uses of gun trusts.In February 2013, the manhunt of Christopher Dorner, an honorably discharged Navy Reservist and former Los Angeles police officer, unnerved the nation. Before committing suicide during a standoff with police at a cabin in the San Bernardino Mountains, Dorner killed four people, wounded three others, and thrust southern California into a state of panic. In Dorner's manifesto, he stated that he had used a gun trust to buy silencers and a short-barreled rifle in Nevada.2 Following the release of Dorner's manifesto, the New York Times headline read: Trusts Offer a Legal Loophole for Buying Restricted Guns.3 Although Dorner could have passed a background check and bought these firearms individually, subsequent press coverage propelled gun trusts from obscurity into the national consciousness as a wedge issue in the gun control debate.4What exactly is a gun trust? It is simply a trust created to receive (or purchase) and manage certain federally restricted, but legal-to-own, firearms. From a trust law perspective, a gun trust is conceptually no different from other trusts. The trustee of a gun trust holds the trust property as a fiduciary for one or more beneficiaries, the trustee takes legal title of the trust property, and beneficiaries enjoy the equitable title to the trust property. …