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Trusts Offer a Legal Loophole for Buying Restricted Guns
NY Times ^ | February 25, 2013 | ERICA GOODE

Posted on 02/25/2013 2:26:28 PM PST by Second Amendment First

A growing number of shooting enthusiasts are creating legal trusts to acquire machine guns, silencers or other items whose sale is restricted by federal law — a mechanism that bypasses the need to obtain law enforcement approval or even undergo criminal background checks.

The trusts, called gun trusts, are intended to allow the owners of the firearms to share them legally with family members and to pass them down responsibly. They have gained in popularity, gun owners say, in part because they may offer protection from future legislation intended to prohibit the possession or sale of the firearms.

But because of a loophole in federal regulations, buying restricted firearms through a trust also exempts the trust’s members from requirements that apply to individual buyers, including being fingerprinted, obtaining the approval of a chief local law enforcement officer and undergoing a background check.

Lawyers who handle the trusts and gun owners who have used them say that a majority of customers who buy restricted firearms through trusts do not do so to avoid such requirements. And most gun dealers continue to require background checks for the representative of the trust who picks up the firearm. But not all do.

Christopher J. Dorner, the former Los Angeles police officer who embarked on a weeklong assault on law enforcement officers this month that ended with his death on Feb. 12, said in a rambling 11,000-word manifesto that he had used a gun trust to buy silencers and a short-barreled rifle from a gun store in Nevada without a background check.

(Excerpt) Read more at nytimes.com ...


TOPICS: Culture/Society; Government; News/Current Events
KEYWORDS: banglist; guncontrol; secondamendment
Stupid liberals have to rely on Dorner's manifesto to find out what the law is.
1 posted on 02/25/2013 2:26:35 PM PST by Second Amendment First
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To: Second Amendment First
The crime is that there is any type of "restricted gun" to begin with........."Shall Not Be Infringed" means exactly that.

We need to start a petition.

I think we should ban fully automatic printing presses; they should have to physically press "print" each time for each page for each paper printed.

High capacity ink feeding devices should be banned as well - 7oz containers should be enough. I mean if you can't get your message out/viral after making three newspapers, you probably don't need to be distributing more than that....the people deserve to be left alone.

We need Common Sense Speech Laws.

/s

2 posted on 02/25/2013 2:36:56 PM PST by Repeat Offender (What good are conservative principles if we don't stand by them?)
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To: Second Amendment First

Oh, those clever lawyers.


3 posted on 02/25/2013 2:38:42 PM PST by gleeaikin
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To: Second Amendment First

Ping


4 posted on 02/25/2013 2:43:40 PM PST by broken_arrow1 (I regret that I have but one life to give for my country - Nathan Hale "Patriot")
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To: Second Amendment First

Hmmmm...


5 posted on 02/25/2013 3:08:13 PM PST by Gator113 ( REGISTER THE DAMN LIBERALS and leave my guns alone!!)
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sfl


6 posted on 02/25/2013 3:14:39 PM PST by phockthis (http://www.supremelaw.org/fedzone11/index.htm ...)
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To: Second Amendment First

Boy, these people are ignorant. You still have to submit paperwork to BATFE for the tax stamp. BATFE does the background check and takes several months, at least, to give approval or reject the applicant.


7 posted on 02/25/2013 3:20:32 PM PST by 3Fingas (Sons and Daughters of Freedom, Committee of Correspondence)
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To: gleeaikin

Congress passes.laws everyday requiring us to hire lawyers to get around laws congress never should have passed. Makes a lot of sense huh!


8 posted on 02/25/2013 3:23:08 PM PST by MrKatykelly
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To: Second Amendment First

In a decade the quality of modestly priced 3D printers will reach the stage where they can create commercial quality machine guns and clips. Probably the ammo as well.

Metals like stainless steel can be printed now.. You can print tools like wrenches and they are good quality.

So, shell out 10-20K for a printer and whip up a machine gun in a day or two.

In the age of 3D printing gun laws and drug laws will be damned hard to enforce. Technology has always been a two-edged sword. 3D printing will assist the good as well as the bad elements of society.


9 posted on 02/25/2013 3:28:00 PM PST by Bobalu (It is not obama we are fighting, it is the media.)
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To: Second Amendment First
Liberals aren't so stupid. They want to take your guns, while (secretly) keeping theirs. So, they write these laws & include these loopholes that regular people never know about.

You can be sure that Obamacare is chock full of loopholes that will let Liberals avoid penalties, taxes, & other obligations, while maximizing their ability to obtain grants/loans/privileges at taxpayer expense. With 12,000 pages, I imagine the “law” applies to the many, but not the few.

10 posted on 02/25/2013 3:28:52 PM PST by Mister Da (The mark of a wise man is not what he knows, but what he knows he doesn't know!)
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To: Repeat Offender
"Shall Not Be Infringed" means exactly that.

But what is the “that” it means exactly. I suppose most would say the “that” is “the right of the people to keep and bear Arms, shall not be infringed.” This leads to the question: “What is the right of the people to keep and bear Arms?” If this right is not to be infringed we need to know what this right is.

Another post on this forum today ( http://www.freerepublic.com/focus/f-news/2990936/posts ) stated:

“In a sweeping ruling, the Tenth U.S. Circuit Court of Appeals ruled that there is no Second Amendment right to carry a concealed firearm in public”, and further stated “But the final ruling held, “In light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment’s protections. (emphasis added).

We talk about “shall not be infringed” plenty. We need to talk more about the scope of “the right of the people to keep and bear arms” so that we can establish what is and is not an infringement. If we don’t, it will be done for us. Or rather to us.

11 posted on 02/25/2013 3:30:25 PM PST by KrisKrinkle (Blessed be those who know the depth and breadth of their ignorance. Cursed be those who don't.)
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To: Second Amendment First

No gun is “illegal”.

It’s simply “undocumented”.


12 posted on 02/25/2013 3:33:04 PM PST by Tzimisce (The American Revolution began when the British attempted to disarm the Colonists.)
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To: Repeat Offender

Good one.
Snicker.


13 posted on 02/25/2013 3:33:04 PM PST by shove_it (Long ago Huxley, Orwell and Rand warned us about 0banana's USA.)
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To: KrisKrinkle
Actually, "natural rights" (there was an excellent thread this AM on just this topic) CAN'T be "infringed". You can punish me for doing so if you like, but you can't STOP me. What is more, and this is part of what made the article so good, is that if one TRIES to stop another from the exercise of a natural right that person IS THE CRIMINAL!

μολὼν λαβέ


14 posted on 02/25/2013 3:47:32 PM PST by wastoute (Government cannot redistribute wealth. Government can only redistribute poverty.)
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To: Tzimisce; Second Amendment First

“No gun is “illegal”. It’s simply “undocumented”.”

It is the only kind of gun or gun collection to have...


15 posted on 02/25/2013 3:54:00 PM PST by GGpaX4DumpedTea (I am a Tea Party descendant...steeped in the Constitutional Republic given to us by the Founders.)
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To: Second Amendment First

Interesting:

The New York times has an investigative reporter to assign to this story, but not to Fast & Furious, Benghazi, or all of Obama’s college career?

How odd.


16 posted on 02/25/2013 3:59:18 PM PST by Chad N. Freud (FR is the modern equivalent of the Committees of Correspondence. Let other analogies arise.)
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To: 3Fingas
You still have to submit paperwork to BATFE for the tax stamp. BATFE does the background check and takes several months, at least, to give approval or reject the applicant.

They basically run the trust document past the legal staffers to make sure that it is drawn up properly for your state of residence. The actual paperwork is tricky and requires you use an attorney who has done this before. Don't try to squeak by with legal zoom dot com, it will come back to haunt you. Plan on spending about $1000. Of course it will last for a lifetime. I've got one as well as a revocable trust to hold all my assets (including my non NFA items). So sue me, I don't own a damn thing!

Regards,
GtG

17 posted on 02/25/2013 4:55:01 PM PST by Gandalf_The_Gray (I live in my own little world, I like it 'cuz they know me here.)
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To: Repeat Offender

I think we should ban fully automatic printing presses... especially the ones used by the Bureau of Printing and Engraving to “assault” the value of our money by printing endless new bills that they push into circulation by buying things to the benefit of government.


18 posted on 02/25/2013 4:56:46 PM PST by theBuckwheat
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To: wastoute
Actually, "natural rights" (there was an excellent thread this AM on just this topic) CAN'T be "infringed".

"The right of the people to keep and bear arms" isn't a "natural right". One is not born with the subject arms in a state of nature or in a state of society. One has to take something, make it his property, and turn it into an "arm" before he can exercise the right to keep and bear arms. The right to keep and bear arms might be more properly derivative and contingent upon the right to life and the right to property.

19 posted on 02/25/2013 5:28:18 PM PST by KrisKrinkle (Blessed be those who know the depth and breadth of their ignorance. Cursed be those who don't.)
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To: KrisKrinkle

From my not super extensive reading of law and the framers intent, “The right of the people to keep and bear arms” applies [should] to any individually portable common infantry weapon available in the time period viewed.

So, theoretically as an un-infringed right, you should be able to have a select fire weapon and it would seem logical that you could also have an attachment like a grenade launcher.

It would not apply to crew served weapons mainly from the fact that said weapons are generally not individually portable. In the past, units would aquire crew served weapons (cannons) and frequently, up to around the Civil War, these would be comissioned/purchased by a wealthy patron or a local community.


20 posted on 02/25/2013 5:35:08 PM PST by Axenolith (Government blows, and that which governs least, blows least...)
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To: Gandalf_The_Gray

Gandalf,

Once you have the trust, do you still have to submit nfa paperwork to BATFE and pay the $200 tax for each NFA item?
That is how it was explained to me. The Times article implies that you don’t have to do that.

In my county, the LEO won’t sign, so everyone here who wants an NFA item has to go with a trust.

Thanks for any information that you can provide.


21 posted on 02/25/2013 5:37:45 PM PST by 3Fingas (Sons and Daughters of Freedom, Committee of Correspondence)
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To: gleeaikin

I first heard about gun trusts on the Dave Ramsey show. It was described as a way to put guns in a trust, so the family isn’t breaking the law by carrying them out of the house when someone dies, in case the guns are illegal because they are no longer “grandfathered” under the law when grandpa died.
And you can put the guns in the gun trust to hold them until sold or your heirs have grown old enough and jumped through the legal hoops to inherit them.
After describing this, Dave Ramsey joked that he just make Michael Bloomberg and a lot of other gun control nuts go nuts.


22 posted on 02/25/2013 6:50:08 PM PST by tbw2
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To: 3Fingas
Once you have the trust, do you still have to submit nfa paperwork to BATFE and pay the $200 tax for each NFA item? That is how it was explained to me. The Times article implies that you don’t have to do that.

In my county, the LEO won’t sign, so everyone here who wants an NFA item has to go with a trust.

In order to purchase NFA Class III items (full auto, short barreled rifles & shotguns, suppressors, "destructive devices" and a class of items "any other weapon") an individual needs to fill out an ATF Form 4 completely, and submit it along with a certified check for the excise tax. If we are talking a flesh and blood individual that means mug shots, a fingerprint card, and a sign off by your chief LEO for your county or parish. The trust (or an LLC corporation) is in the eyes of the law a legal person. However this person has no "mug" to shoot, no fingers to print, and by some quirk does not require a sign off by the LEO. Cool!

In a word, yes you still need to fill the form 4 and pay the excise tax. You can skip the other gapharb. The times article has an agenda and they are trying to scare civilians into thinking machine-guns are under every bush.

Truth be told, there are very strict rules concerning NFA Class III items. If you are going to the range (any place off your own property) you need to have a copy of your Form 4 with the attached tax stamp. If you plan on moving within your state of residence, you must notify ATF of your new address. If you plan on moving out of state, notify ATF BEFORE making the move (some states ban Class III items). If you plan on selling your new toy, you must go through a FFL licensed to buy/sell NFA Class III items who does business in your state of residence. If you buy your items from an out of state FFL dealer, the items must then be transferred to a dealer in state before they can be transferred to your possession.

I hinted that trusts aren't the only game in town. You can set up an LLC corporation and make the NFA items your corporate assets. If your a gun shop, gunsmith, or licensed manufacturer that would be the way to go. However as an individual there are drawbacks. Corporations are registered with the state, trusts need not be, corps must file an annual report, trust don't, corps file taxes, trusts are below the radar.

When you set up a trust, you name a successor trustee who takes over at your death and takes over possession of you NFA items which removes a big headache for the executor of your will. If you had acquired your NFA stuff without the cover a trust or corporation provides it all must be returned to ATF for destruction upon your death. That is why all the current "gun control" bills being pushed are including a provision for ATF "registration", it will prevent you from leaving any guns to your kids or grand-kids.

If you decide not to set up an NFA trust, I would recommend, at a minimum, setting up a revocable trust to handle your assets (including your non NFA guns, ammo, magazines, &c.) instead of a will. Your successor trustee will distribute your assets to your heirs and assigns much like an executor but without the scrutiny of a probate court.

Regards,
GtG

PS If you buy a fully automatic, short barreled rifle with a suppressor that will take three Form 4s and three certified $200.00 checks. ATF considers each item to be a "firearm" with it's own serial number.

PPS If you set up multiple trusts the successor trustee may be the same person or different as you see fit. If you plan on living a long time you may want to add backup successors.

23 posted on 02/25/2013 7:32:37 PM PST by Gandalf_The_Gray (I live in my own little world, I like it 'cuz they know me here.)
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To: Axenolith
From my not super extensive reading of law and the framers intent

I understand that part. Same here.

So, theoretically as an un-infringed right, you should be able to have a select fire weapon and it would seem logical that you could also have an attachment like a grenade launcher.

Several years ago in England, a man was killed by a weapon disguised as an umbrella that injected a poison pellet into him. The purpose of such a weapon is murder, assassination. It's not an infantry weapon. Such a weapon has no moral purpose, as far as I know, in society. Is such a weapon covered by “The right of the people to keep and bear arms”?

And what about the "bear" part? Is a law an infringement when the law makes it a crime to bear a select fire weapon on or in someone's property if that someone forbids it? What if it's public property and the public, as the ultimate owners of public property and by means of popular vote, vote for a law forbidding the bearing of select fire weapons on public property?

It would not apply to crew served weapons mainly from the fact that said weapons are generally not individually portable.

Well, the "bear" part might not apply for practical reasons, although six people might be able to bear a machine gun or a cannon in the same way six people bear a casket. But what about the "keep" part? According to the Constitution (the body itself, not the amendments), Congress has the power to grant Letters of Marque and Reprisal. Such letters were granted to ship captains or owners so that they could in effect conduct wartime operations during wartime. It seems to me that the clear implication is that crew served weapons, that is cannon, could be kept.

24 posted on 02/25/2013 7:53:38 PM PST by KrisKrinkle (Blessed be those who know the depth and breadth of their ignorance. Cursed be those who don't.)
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To: Gandalf_The_Gray

Thanks for the very helpful explanation of setting up a trust and your advice about setting up a revocable trust. I have seen advertisements from local lawyers here in Texas who specialize in creating NFA trusts. If I ever decide to get an NFA item, I will definitely get the assistance of one of these attorneys.

Just to be clear though, the Times implies that people using trusts don’t undergo a background check. When you submit the Form 4, (even though you don’t submit finger prints or a photo) I assume the BATFE does the background check before you get approved. I would assume they would also do it for the successor you name as well. After you establish the trust and start to buy multiple NFA items over time, do they conduct the background again for each purchase or only after the first NFA purchase after establishing the trust. I don’t mean to bug you about it. I just want to make sure I am clear about it. Thanks again.


25 posted on 02/26/2013 7:39:13 AM PST by 3Fingas (Sons and Daughters of Freedom, Committee of Correspondence)
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To: 3Fingas
I have seen advertisements from local lawyers here in Texas who specialize in creating NFA trusts. If I ever decide to get an NFA item, I will definitely get the assistance of one of these attorneys.

I had my trust done by David Goldman, I found his office through an Internet search. I found him to be highly competent in the area of trusts in general and specifically gun trusts. What follows is an excerpt from the Times article:

"David Goldman, an estate lawyer in Jacksonville who pioneered the use of gun trusts six years ago, said most dealers carried out background checks for restricted firearms... Mr. Goldman, who has prepared several thousand gun trusts and teaches courses on their use, said the trusts have many benefits, like ensuring that firearms were passed on responsibly when an owner dies, keeping them from falling into the wrong hands in a difficult divorce or helping to negotiate moves to other states that might have different gun laws."

“There was never a proper way of dealing with firearms with estate planning and whether beneficiaries were appropriate to receive them,” Mr. Goldman said."

Attorney Goldman gathers your background information and then provides a framework containing the necessary verbiage for a "gun trust". He has a network of Lawyers who practice in other states who "fine tune" the initial trust document to reflect the differences in trust law from state to state. When finished your trust is custom designed for you and the state in which you reside. I recall I paid about $600 for the package but that was some time ago.

Just to be clear though, the Times implies that people using trusts don’t undergo a background check. When you submit the Form 4, (even though you don’t submit finger prints or a photo) I assume the BATFE does the background check before you get approved. I would assume they would also do it for the successor you name as well. After you establish the trust and start to buy multiple NFA items over time, do they conduct the background again for each purchase or only after the first NFA purchase after establishing the trust.

The way an NFA purchase is done follows:
You first contact a licensed dealer of NFA Class III items and determine the items and prices of things you might want.

After you settling on your "wish list" you put them on "layaway" by committing money.

You fill out the ATF Form 4 (available on the Internet at the ATF website) Sections 1, 2, 13, 14, & 15 leaving the dealer portion blank, no mug shot, no fingerprint card, and no LEO sign-off. Sections 13 & 14 are very much like a 4473 asking if you are a "fugitive", an "illegal", under 21, &c. Section 15 asks (Do You) "have a reasonable necessity to possess the machinegun, short-barreled rifle, short-barreled shotgun, or destructive device described on this application for the following reason(s)" Fill in "add to my gun collection" or some such innocuous statement.

You go to your bank and get a certified check for the excise tax ($200 for automatic, short barreled rifle/shotgun, suppressor, destructive device, & $5 for any other firearm (novelty stuff)) made payable to the Bureau of Alcohol,Tobacco, Firearms and Explosives. You may also use a money order, do NOT use a personal check, it will only delay the processing time for your application. (Can you believe some applicants are so dumb as to try and pass a bum check to the ATF?)

We are almost done, next make a complete copy of your trust documents, signed and sealed by a notary public. You then mail your trust documents, Form 4, and check to your dealer.

Your dealer completes his portion filling in sections 3a, 3b, 3d, & 4 through 12. The dealer then forwards the package complete to the ATF for processing. I do not think that ATF does anything beyond having their legal staff review the trust document for errors and/or omissions of necessary verbiage. At one time processing was about 30 days. Those days are long gone and you could wait as long as 6 months. Check periodically with your dealer as to status as ATF does not notify you when they are finished. ATF notifies the dealer who may or may not call you to come in for a pick-up (it is necessary for you to pick up your item in person, no shipments allowed).

Patience is required throughout the whole process. To answer your questions Re: background checks, I will again excerpt from the Times article:

"Jim Bueermann, the president of the Police Foundation, a research organization in Washington, said...that he was especially concerned about the loophole in A.T.F. regulations that made it possible to buy restricted firearms without a background check and that he thought most Americans would find this shocking. The A.T.F.’s regulations, in fact, exempt trusts from background checks, as noted in the Federal Firearms Regulations Reference Guide, known as the White Book, and on the forms for gun sales that dealers file to the agency. (In one publication, its handbook on the National Firearms Act, the agency does say that the trust representative who picks up a restricted firearm at a dealer must have a background check, but that deviates from what the regulations require, the A.T.F. confirmed.)" Ie, the regs say no but they do it anyway, that's the ATF alright!

"Mike Campbell, a spokesman for the Bureau of Alcohol, Tobacco, Firearms and Explosives, which enforces firearms regulations, confirmed that under current regulations, background checks were not required for the buying of restricted firearms through trusts. The agency, he added, was aware of the loophole and was reviewing changes to close it."

So, as it stands currently there is no ATF background check of the purchaser of the NFA item(s). That may change but then again it may not. The reason I say that is that when you submit the paperwork to acquire an NFA item you are not buying the item for yourself. You are acting as the Trustee of your gun trust and as such you are an agent of the trust, purchasing items for the trust which is then the owner of said items. The incorporeal Gun Trust is a legal person and is the owner of it's assets. Since it has no physicality, it has no background to check! Saying otherwise would twist the law into a pretzel and stand it on it's ear.

When you drop by your dealer to pick up the new toy, he will have you fill out a 4473 which is routine for "over the counter" sales. For the most part it is done to keep his inventory records and "bound book" up to date. (If there are demonstrable errors or omissions he could loose his FFL.) When you are filling it out he may run you through the NICS background check, some do and some don't. In any event, you should pass as I assume this isn't your first brush with NCIS and you have purchased other guns and completed the check successfully. He will probably stick you another $15 to $20 for the process, don't argue, you are now in possession of goodies to turn your shooting buddies green with envy. Just a word, legally you can not allow them to so much as touch your new toy, what you do in the woods is your business.

I almost forgot, when you are buying NFA items like a short barreled rifle and a suppressor. that's two Form 4s, two $200 checks and probably only one copy of the trust documents. If however, the rifle is select fire, that adds a third Form 4 and another check. Every item is considered separately, not as an assembly. In ATF's eyes every NFA item is a firearm and requires a separate serial number.

Regards,
GtG

PS I'm not a Lawyer, but I did stay in a Holiday Inn Express once...

PPS Full auto, the fastest way to turn ammo into pure fun...

26 posted on 02/26/2013 2:50:57 PM PST by Gandalf_The_Gray (I live in my own little world, I like it 'cuz they know me here.)
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To: Gandalf_The_Gray

Thanks, Gandalf. That is the best explanation of the process I have ever seen. I will be saving your responses for future reference.


27 posted on 02/26/2013 5:06:02 PM PST by 3Fingas (Sons and Daughters of Freedom, Committee of Correspondence)
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To: KrisKrinkle
Several years ago in England, a man was killed by a weapon disguised as an umbrella that injected a poison pellet into him. The purpose of such a weapon is murder, assassination. It's not an infantry weapon. Such a weapon has no moral purpose, as far as I know, in society. Is such a weapon covered by “The right of the people to keep and bear arms”?

I remember that, it was during the cold war, he was a Bulgarian dissident I believe. I do not believe that under a strict interpretation it would be liberally allowed. Hypothetically, it could be "permitted", but it is not a common individually borne weapon. Even if we hypothesize a world where for some reason war became so onerously dangerous or economically infeasible that stealthy "assassination wars" took place on a frequent and large scale, the weapons involved would mainly be individually offensive in nature and probably regulated by the state.

And what about the "bear" part? Is a law an infringement when the law makes it a crime to bear a select fire weapon on or in someone's property if that someone forbids it? What if it's public property and the public, as the ultimate owners of public property and by means of popular vote, vote for a law forbidding the bearing of select fire weapons on public property?

While I see no reasoning that prohibits an individual from barring armed folks in their premise it is for the most part irrational on their part, save maybe a bar or a gaming establishment and even then I think that could be managed privately.
I do see it as being legal for the local populace to bar weapons from certain public buildings, but not open air places like "streets and sidewalks. Additionally, public buildings that bar responsible personal weapons bearers their arms should be strictly liable financially for their medical care and familial income replacement (in case of death) in the event their are subsequently killed or injured within the building through assault.

Well, the "bear" part might not apply for practical reasons, although six people might be able to bear a machine gun or a cannon in the same way six people bear a casket. But what about the "keep" part? According to the Constitution (the body itself, not the amendments), Congress has the power to grant Letters of Marque and Reprisal. Such letters were granted to ship captains or owners so that they could in effect conduct wartime operations during wartime. It seems to me that the clear implication is that crew served weapons, that is cannon, could be kept.

I agree with that, particularly in the context of responsible patriots, though in today's age we might need to leave that further down the road. Politicians obviously regulated the larger scale destructive devices for their own protection. Politicians could give 2 craps for citizens for the most part. I personally think their wholesale frenzy to regulate self loading rifles is due in part to their subconscious realization that they will have royally screwed the Republic, possibly to its end, in the very near future and they'd like to minimize the citizen pay-back seekers in the aftermath...

28 posted on 02/26/2013 5:56:26 PM PST by Axenolith (Government blows, and that which governs least, blows least...)
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