High-Capacity Magazines & Gun Trusts in Washington State

Can an NFA gun trust protect you and your family from potential penalties imposed if you loan a “high-capacity” magazine to a co-trustee or leave a high-capacity magazine to your beneficiaries when you die? Transfer or sale of magazines holding more than ten rounds will be a gross misdemeanor with civil penalties in Washington state after July 1, 2022. Even transfers of guns designed and manufactured with an “ammunition feeding device” holding over ten rounds that cannot be detached, such as a tube magazine or an extended magazine tube for your shotgun, will be prohibited. The only exception will be for .22 caliber rifles with tube magazines and all calibers of lever action rifles.

The civil penalties apply to online sales and do not provide an exception for sales to military and law enforcement. While sales and transfers to law enforcement agencies (but not individual officers) are exempt from criminal penalties, law enforcement agencies will probably not be able to purchase such items online if the law is strictly construed with potential triple damages against sellers for unfair or deceptive business practices under the Washington’ State Consumer Protection Act.

A similar California ban on so-called high-capacity magazines has been working its way to the U.S. Supreme Court. At this time, the Court must decide on a Petition for Certiorari whether to take the case for review.

The question of whether gun trusts can protect co-trustees and beneficiaries from charges of violating ESSB 5078 is one which the law does not address. There is presently an exception for transfers to beneficiaries under operation of law that should cover wills, trusts and transfers pursuant to administration of estates.

Many lawyers now advise clients to list non-NFA items in a gun trust in order to allow sharing of firearms with co-trustees without undergoing the criminal history background check required under I-594. But the laws do not specifically address this issue.

Contrary to what was proposed earlier, possession of high capacity magazines is not illegal. The language that was eliminated from the final version of the law signed by the Governor required certain criteria to be met which would have prohibited carrying such magazines in most places outside the home:

The legislation as proposed at one point would have required you to be at a duly licensed private shooting range or sporting event or engaged in an outdoor activity such as hunting to take your magazines out of a locked storage container! Possession will not, however, become illegal away from your home or business. But expect proposals to be renewed in the future that prohibit carrying magazines over ten rounds (even while transporting) unless stored in a separate locked container.

The previous proposals required that, in order to continue to possess a large capacity magazine that was legally possessed on the effective date of this section, the person possessing the large capacity magazine shall:

(a) Store the large capacity magazine in a secure gun storage; and

(b) Possess the large capacity magazine only on property owned or immediately controlled by the person, or while engaged in the legal use of the large capacity magazine at a duly licensed firing range, or while engaged in a lawful outdoor recreational activity such as hunting, or while traveling to or from either of these locations for the purpose of engaging in the legal use of the large capacity magazine, provided that the large capacity magazine is stored unloaded and in a separate locked container during transport

In the case of “ammunition feeding devices,” the law is now less draconian but remains unpredictable. Nevertheless, there is reason to believe that transferring to a gun trust provides protection for “loaning” a gun to a co-trustee. However, it can be argued that even transferring firearms to a trust requires an I-594 background check. By the same token, magazines transferred to an NFA gun trust after July 1, 2022 might come under the purview of the new high-capacity magazine law. The good news is that many of the new gun laws in Washington are difficult to enforce and virtually ignored by law enforcement because they are so poorly written, arbitrary and vague.

The Multi-Generational Gun Trust offered by the Law Office of Mark Knapp PLLC is offered in association with David Goldman’s law firm. This Irrevocable NFA gun trust contains provisions allowing the trust to be amended in the future to potentially make possession of certain items legal if there are changes in federal or state laws. For example, many people anticipate the Washington legislature will soon prohibit possession of magazines over ten rounds. At the present time the use of such magazines for self-defense purposes has already been seriously curtailed. There may be specific language necessary to insert into the trust that will help to maintain future legal possession of the magazines or other items such as AR-15 rifles and/or NFA restricted equipment such as sound suppressors.

We recommend using a well- written trust with care taken to address all potential areas of the law. Such knowledge is necessary to preserve possession of your firearm collections and the other equipment that you wish to hand down as a legacy to your beneficiaries.

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