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 PRIVATE transfer of a LONG gun between residents of differing states??
UtahShotgunner  [Member]
10/2/2007 1:54:08 PM
It is my contention in this thread,

Click Here for Thread

that the PRIVATE sale of a LONG gun between two NON-FFL holders violates no FEDERAL law.

In other words, if I travel to Montana, pick up a newspaper and see a gun for sale, call the guy/girl, then buy the gun that this would be perfectly legal under FEDERAL law? A face to face sale between private parties is not interstate commerce.

Of course I would then be traveling home with my new purchase. This would constiture INTERSTATE TRANSPORT of my prior owned firearm.

Am I correct in this assertion?
EOD_Guy  [Team Member]
10/2/2007 2:48:09 PM

Originally Posted By UtahShotgunner:
It is my contention in this thread,

Click Here for Thread

that the PRIVATE sale of a LONG gun between two NON-FFL holders violates no FEDERAL law.

In other words, if I travel to Montana, pick up a newspaper and see a gun for sale, call the guy/girl, then buy the gun that this would be perfectly legal under FEDERAL law? A face to face sale between private parties is not interstate commerce.

Of course I would then be traveling home with my new purchase. This would constiture INTERSTATE TRANSPORT of my prior owned firearm.

Am I correct in this assertion?


No, you are not. Such a transfer is illegal under Federal law. A transfer between residents of different states is considered interstate commerce by the Feds and is specifically addressed in the law. 18USC §922 (a)(3) forbids you from transporting a firearm back to your home state if you purchased it out of state from a nonlicensee.

18USC §922 (a)(5) prohibits the transfer of the firearm to you in the first place.

ArimoDave  [Team Member]
10/2/2007 3:17:14 PM
What about the situation where the buyer is a resident of the state where transaction takes place while the seller who is visiting resides another state?
UtahShotgunner  [Member]
10/2/2007 3:17:58 PM

Originally Posted By FMD:

Originally Posted By UtahShotgunner:
Am I correct in this assertion?


No.


I am not trying to be difficult and have read the cited links. It is still my understanding that this law was changed/amended but my source in unavailable for the next few days.
FMD  [Team Member]
10/2/2007 3:59:29 PM

Originally Posted By ArimoDave:
What about the situation where the buyer is a resident of the state where transaction takes place while the seller who is visiting resides another state?


It still has to go through a local FFL.

Utah, you have two options here:

1) Your source is incorrect: The BATFE website is up-to-date, what everyone has said so far in the legal section of the largest firearms discussion forum on the web (backed up by USCode) is accurate, the transaction is not allowed, and congress hasn't somehow given us back more rights since 68; or

2) Your source IS correct: The BATFE website is wrong, everyone here is wrong, the USC quoted is inaccurate, and Congress made it easier for us to sell guns to each other sometime after 1968 so that the transaction is allowed.

Which do you think is more plausible?

Private parties may not engage in any interstate transfer without an FFL.
UtahShotgunner  [Member]
10/2/2007 5:04:56 PM

Originally Posted By gunnut284:

He's not talking about an FFL. Two private parties. Not legal.



I am not about to attempt this now that doubts have been placed in my mind. I do have notes out to the attorneys that have supported my thoughts on this in the past. If I can convince them to participate I will do so. AR15.com is not where you would typically find them on the internet.

I am not taking any chances, but I am not yet convinced I am wrong.
UtahShotgunner  [Member]
10/2/2007 10:27:45 PM

Originally Posted By FMD:
How's this:


Of further note, the exception is "intestate succession" (not inteRstate):


intestate succession:



I understand the difference between intestate and interstate, that is not the confusing issue.

Don't get me wrong, you have raised serious doubts in my mind. I am also confident that the friends that led me to this belief have some points to make. I have no problem being wrong, I am just more convinced by the arguments of folks whose background I know. As stated before, I can not ask them at the moment.

I have sent them these links and maybe they will participate in the discussion. They are not members on AR15.com so I don't know if they will.
monkeyman  [Member]
10/3/2007 8:51:31 AM
Interesting topic.

Here is the part of the law that is relevent...

"It shall be unlawful ..
... for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person who the transferor knows or has reasonable cause to believe does not reside in... the State in which the transferor resides;"

If a person sells a long gun face to face to another without checking to see if they are a resident of the same state is it a violation of federal law?

If a tree falls in the forrest and no one is around to hear it, does it make a sound?
civprod  [Team Member]
10/3/2007 9:56:56 AM
I'm a lawyer and it is my belief that you are incorrect (and your FFL/lawyer friend as well) when you state that a resident of another state can buy a rifle (or other firearm) in a private party sale from a resident of another state.

I know that these links have been posted before but they are the controlling law. THis is direct copy and paste from the ATF's FAQ section of the website concerning firearm transfers:


(B2) From whom may an unlicensed person acquire a firearm under the GCA? [Back]

A person may only acquire a firearm within the person’s own State, except that he or she may purchase or otherwise acquire a rifle or shotgun, in person, at a licensee's premises in any State, provided the sale complies with State laws applicable in the State of sale and the State where the purchaser resides. A person may borrow or rent a firearm in any State for temporary use for lawful sporting purposes.

[18 U.S.C. 922(a)(3) and (5), 922(b)(3), 27 CFR 478.29 and 478.30]

(B3) May an unlicensed person obtain a firearm from an out-of-State source if the person arranges to obtain the firearm through a licensed dealer in the purchaser’s own State? [Back]

A person not licensed under the GCA and not prohibited from acquiring firearms may purchase a firearm from an out-of-State source and obtain the firearm if an arrangement is made with a licensed dealer in the purchaser's State of residence for the purchaser to obtain the firearm from the dealer.

[18 U.S.C. 922(a)(3) and 922(b)(3)]


A person can buy a rifle from a FFL in another state as long as all the rules are followed. A person may purchase a rifle from an resident of another state, provided that the resident of the other state ships it to a FFL in the buyer's home state. Private transfers of firearms between individuals of different states is illegal, an FFL must be involved (there are a few exceptions, but this is not a situation where any of them appear to apply).

I don't know where you are finding that the United States Code has changed to allow this. The full code can be found here: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+18USC922

I briefly looked but the relevant sections of the code are still in there. It lists the amendments and everything near the bottom, but I am pretty sure that any amendments that have been made are included in the full text of the bill at the top so if there had been an amendment making private party transfers between residents of two states legal, then the current language forbidding this would not be there.

Straight from the code: It shall be unlawful for:


or any person, other than a licensed importer, licensed
manufacturer, licensed dealer, or licensed collector to transport
into or receive in the State where he resides (or if the person is a
corporation or other business entity, the State where it maintains a
place of business) any firearm purchased or otherwise obtained by
such person outside that State, except that this paragraph (A) shall
not preclude any person who lawfully acquires a firearm by bequest
or intestate succession in a State other than his State of residence
from transporting the firearm into or receiving it in that State, if
it is lawful for such person to purchase or possess such firearm in
that State, (B) shall not apply to the transportation or receipt of
a firearm obtained in conformity with subsection (b)(3) of this
section, and (C) shall not apply to the transportation of any
firearm acquired in any State prior to the effective date of this
chapter;


If you are wondering, subsection (b)(3) provides that a FFL holder cannot sell firearms in a state other than the state where the FFL Holder's place of business is located unless the transfer is done in person and in compliance with the laws of all states involved. This subsection only applies to FFL Holders and does not really impact private parties.

If you feel that I am wrong, I welcome any proof you can offer to the contrary. As of right now though, it appears that the US Code is against your position and there do not seem to be any major amendments that have changed the code to allow these types of sales.
UtahShotgunner  [Member]
10/3/2007 3:20:05 PM

Originally Posted By civprod:
As of right now though, it appears that the US Code is against your position and there do not seem to be any major amendments that have changed the code to allow these types of sales.


That is exactly the kind of information that I am looking for, particularly the amendments or lack thereof.

My friend is still hunting so I can't ask, or offer his opinions. I can't even say at this point if he will be willing to let me quote him here.

I appreciate the followup.

Not to muddy the waters, but I have a vague memory of something to do with contiguous states. How does that come into play?
civprod  [Team Member]
10/3/2007 3:59:47 PM

Originally Posted By UtahShotgunner:

Originally Posted By civprod:
As of right now though, it appears that the US Code is against your position and there do not seem to be any major amendments that have changed the code to allow these types of sales.


That is exactly the kind of information that I am looking for, particularly the amendments or lack thereof.

My friend is still hunting so I can't ask, or offer his opinions. I can't even say at this point if he will be willing to let me quote him here.

I appreciate the followup.

Not to muddy the waters, but I have a vague memory of something to do with contiguous states. How does that come into play?


I believe that any contiguous state requirement is purely a creature of state law. Federal law does not differentiate between residents of continguous and non-contiguous states and basically (in my opinion) says that a private transaction between residents of two different states must involve a FFL.

For example, Virginia at one point had two rules dealing with the purchasing and sale of firearms to residents of continguous states. Residents of Virginia could lawfully purchase a rifle to be transported to Virginia in a contiguous state provided that all the laws of Virginia and the other state were followed. There was a similar rule for dealers; dealers could only lawfully sell a rifle to a citizen from a continguous state, again as long as the laws of both states have been followed. Like I said, these two code sections have been repealed in Virginia, but there may still be similar code sections in other states. Like I said, I think that it is a state law distinction that is not present in the federal laws.
FluxPrism  [Team Member]
10/3/2007 4:33:39 PM

Originally Posted By UtahShotgunner:

Originally Posted By civprod:
As of right now though, it appears that the US Code is against your position and there do not seem to be any major amendments that have changed the code to allow these types of sales.


That is exactly the kind of information that I am looking for, particularly the amendments or lack thereof.

My friend is still hunting so I can't ask, or offer his opinions. I can't even say at this point if he will be willing to let me quote him here.

I appreciate the followup.

Not to muddy the waters, but I have a vague memory of something to do with contiguous states. How does that come into play?


And, as far as FEDERAL LAW is concerned, the Contiguous States thing is only a memory. That said, some States still have remnants of the Contiguous States wording in their State Laws, which can cause some issues for you when buying a long gun AT AN FFL in another State than the one where you reside.

For those that are curious, the Contiguous States thing went away, along with the Ammo Register (where you had to sign every time you bought ammo at an FFL) in 1986, with the FOPA, the Firearms Owners Protection Act. After 1986, Federal Law no longer allowed you to buy a Handgun in any State other than the one where you reside, and changed to allow you to now buy long guns in Any State, not just those contiguous with the one where you reside. We lost the right to buy newly manufactured Machineguns, though. We also got the Safe Travel protections of the McClure-Volkmer act around the same time.

Essentially, the current Federal Laws are as they have been quoted above by several other posters.

FluxPrism
FMD  [Team Member]
10/3/2007 6:30:45 PM

Originally Posted By FluxPrism:
For those that are curious, the Contiguous States thing went away, along with the Ammo Register (where you had to sign every time you bought ammo at an FFL) in 1986, with the FOPA, the Firearms Owners Protection Act. After 1986, Federal Law no longer allowed you to buy a Handgun in any State other than the one where you reside, and changed to allow you to now buy long guns in Any State, not just those contiguous with the one where you reside. We lost the right to buy newly manufactured Machineguns, though. We also got the Safe Travel protections of the McClure-Volkmer act around the same time.


Interesting. For some reason I thought that the more restrictive State law trumped the Federal when dealing with out of state long gun purchases. ie: A person from Utah could buy a long gun from an FFL in Alabama (I'm making this up for the sake of argument - I have no idea what the law is in either state) if both states had no restrictive wording in their laws, but I couldn't go to Alabama and buy a long gun because Wisconsin has that restrictive "contiguous state" wording on the books. Along the same lines, that same Utah resident would be unable to purchase a long gun in IL due to the FOID card requirement, while I may do so - because of the contiguous state thing, along with the fact that IL has codified that WI residents need not have an IL FOID in order to purchase and/or posses firearms within their state.

Sorry for the hijack, I just didn't realize that local restrictions on purchasing went away with the FOPA. If that's the case, someone might want to get on the NY and NJ shops that won't let a non-resident so much as touch a gun in their stores.
FluxPrism  [Team Member]
10/4/2007 12:46:28 AM

Originally Posted By FMD:

Originally Posted By FluxPrism:
For those that are curious, the Contiguous States thing went away, along with the Ammo Register (where you had to sign every time you bought ammo at an FFL) in 1986, with the FOPA, the Firearms Owners Protection Act. After 1986, Federal Law no longer allowed you to buy a Handgun in any State other than the one where you reside, and changed to allow you to now buy long guns in Any State, not just those contiguous with the one where you reside. We lost the right to buy newly manufactured Machineguns, though. We also got the Safe Travel protections of the McClure-Volkmer act around the same time.


Interesting. For some reason I thought that the more restrictive State law trumped the Federal when dealing with out of state long gun purchases. ie: A person from Utah could buy a long gun from an FFL in Alabama (I'm making this up for the sake of argument - I have no idea what the law is in either state) if both states had no restrictive wording in their laws, but I couldn't go to Alabama and buy a long gun because Wisconsin has that restrictive "contiguous state" wording on the books. Along the same lines, that same Utah resident would be unable to purchase a long gun in IL due to the FOID card requirement, while I may do so - because of the contiguous state thing, along with the fact that IL has codified that WI residents need not have an IL FOID in order to purchase and/or posses firearms within their state.

Sorry for the hijack, I just didn't realize that local restrictions on purchasing went away with the FOPA. If that's the case, someone might want to get on the NY and NJ shops that won't let a non-resident so much as touch a gun in their stores.


Unfortunately, your original belief was correct. If you'll notice, in my original message there is a sentence that states that, 'in terms of FEDERAL LAW the contiguous thing is history', unfortunately you quoted my text starting with the next sentence. Leaving out the first sentence makes it read as though all laws were affected, which is NOT the case.

There are definitely still State Laws in some states that Restrict purchases to those from contiguous States. There are also some State Laws that say that a Resident of State X may only legally buy a firearm in a contiguous State (or State X of course), though these are less common than the first type which affect purchases by non-Residents.

It's a minefield.

FluxPrism
FMD  [Team Member]
10/4/2007 8:07:31 AM

Originally Posted By FluxPrism:

Unfortunately, your original belief was correct. If you'll notice, in my original message there is a sentence that states that, 'in terms of FEDERAL LAW the contiguous thing is history', unfortunately you quoted my text starting with the next sentence. Leaving out the first sentence makes it read as though all laws were affected, which is NOT the case.

There are definitely still State Laws in some states that Restrict purchases to those from contiguous States. There are also some State Laws that say that a Resident of State X may only legally buy a firearm in a contiguous State (or State X of course), though these are less common than the first type which affect purchases by non-Residents.

It's a minefield.


Doh! I seem to have popped right past that. My mistake.

Agreed.

</hijack>
UtahShotgunner  [Member]
10/9/2007 3:20:08 PM
I spoke to my friend this past weekend and he didn't have any interest getting drawn into a legal debate on a website he doesn't visit. He did follow my links and read this and the other thread.

In essence he agrees that what has been argued here is the governments view on this argument.

In a humorous exchange he used an example. Paraphrasing, he said 'Using that argument, if you go into town (I visited with him out of state) and buy a pack of gum and take it home, using this position, you would be involved in INTERstate commerce.'

I replied: 'Yes, but they are licensed guM dealers.'

So in essence, he agreed, the Feds would pursue this BUT INTERstate commerce law does not support their position.

While I accept his position and think he would be quite capable and probably successful in argueing his viewpoint I have no interest in being the test case.
brickeyee  [Member]
10/10/2007 10:42:47 AM
I doubt he has actually looked at the law.
Time is money, and nothing is free to someone who bills by the hour.
I bill the same way.
UtahShotgunner  [Member]
10/10/2007 1:39:01 PM

Originally Posted By brickeyee:
I doubt he has actually looked at the law.
Time is money, and nothing is free to someone who bills by the hour.
I bill the same way.


Yes he has.

Debating the points of whether he knows the law or not is mostly a waste of time since he is not joining the debate.

With that said, he is not burning billable time by looking at the law. He made his 'fortune' and retired from the prestigious firm he was part of and settled on a simpler life. He is currently licensed and handles cases on his terms. As an example he generally doesn't let them interfere with hunting season.

I have bounced this off a couple of other attorneys that are friends of both of us. They have agreed with the statements I have posted. The Feds take the viewpoint being argued here, but the law doesn't support their position.

BUT and it is a very big BUT, they all agree that some poor soul would need to be a test case and no one is going to do that by choice.
brickeyee  [Member]
10/10/2007 4:40:04 PM
Sounds like you SHOULD be the example.

Here is a hint though...

My wife is an atorney and would not touch a case like this.
It is NOT in her area of expertise.

I seriously doubt it is in you friends either.
There are very few cases brought, and even fewer lost by BATFE for interstate sales.

He should at least rush to the aid of the Maryland football player who recently pled guilty to illegally shipping a firearm. And he was sending it from himself TO himself.

But hell, all the BATFE attorneys must be wrong.
UtahShotgunner  [Member]
10/10/2007 5:12:07 PM

Originally Posted By brickeyee:
Sounds like you SHOULD be the example.

Here is a hint though...

My wife is an atorney(sic) and would not touch a case like this.
It is NOT in her area of expertise.

I seriously doubt it is in you friends either.
There are very few cases brought, and even fewer lost by BATFE for interstate sales.

He should at least rush to the aid of the Maryland football player who recently pled guilty to illegally shipping a firearm. And he was sending it from himself TO himself.

But hell, all the BATFE attorneys must be wrong.


Don't read more into my posts than I is there. I have only continued to post to gather information and maybe help anyone else with the same questions. As I replied to a PM, you have convinced ME.

Sometimes these threads drag out, but they often have nuggets of information that help others. That was the only reason for starting the thread, and the only reason for continuing it.