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Old August 4, 2009, 12:08 PM   #1
azredhawk44
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GCA '68 Interstate Transfer Loophole?

I'm looking for a specific citation that says it is illegal for two people in two different states to meet face-to-face and sell a rifle between parties.

Not a website with guidelines or someone's interpretation of the law... the actual US Code or pertinent ATF regulation.

I have a friend being stubborn in his persistence that this "might" be legal, since no one can show him how it is not legal via a specific citation rather than a webpage full of lay speculation and guidelines.

So far, the closest I can find to a prohibition on us lay folk (non-FFL's) is 18 USC 922(a)(3).

Quote:
(a) It shall be unlawful -
...
(3) for 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;
Imagine this for context (and ignore state law... federal law only please):
1. A seller with a rifle in Arizona.
2. A buyer that might or might not exist in Iowa.
3. A leisurely road trip or hunting expedition to Iowa for the Arizonan. Once in Iowa, he makes a determination that he wants to sell his rifle. He makes a FTF transfer with our fictitious Iowa buyer.

From how I am reading 922(a)(3), it seems to me that:
1. this law only acts as prohibition on the actions of the buyer and has no weight on the seller at all;
2. the buyer did not transport or import the rifle into the state of his residence;
3. the buyer did not obtain the rifle outside of his state of residence.

No law broken.

Is this too naive a reading of this law? Is there established precedent in favor of Uncle Sam on this one? Or is there a different tome of law pertaining to the seller regarding interstate sales that I'm not aware of?

Last edited by azredhawk44; August 4, 2009 at 12:15 PM.
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Old August 4, 2009, 12:21 PM   #2
vranasaurus
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Try 922 a(1)(A)

It shall be unlawful—
(1) for any person—
(A) except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce; or


or

922a (5)

(5) 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 (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides; except that this paragraph shall not apply to
(A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and
(B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;
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Old August 4, 2009, 04:06 PM   #3
NavyLT
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The buyer violates 18 USC 922(a)(3) and the seller violates 18 USC 922(a)(5).

The (b)(3) exception is only for long guns purchased from FFLs.

If the states' in quesiton have contiguous sales laws, they mean basically nothing. Those laws were to allow the (b)(3) exception sales before a 1986 amendment to the GCA, back then out of state long gun sales were limited to contiguous states FFLs, only if state laws specifically allowed the sales. The 1986 amendment did away with that, so now out of state sales of long guns from FFLs are no longer limited to contiguous states.
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Old October 14, 2009, 02:02 AM   #4
freespool
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I've been wrestling with this one all day, as a California resident, to see if I can legally buy a long gun out of state from an FFL and bring it home. I've come to agree with the CA gun expert consensus that this isn't legal, but for reasons of limiting CA law, not Federal law per se.

It seems clear the seller violates 922(a)(5), in the OPs original scenario, but I don't see that the buyer has violated any laws. 922(a)(3) forbids bringing a gun back that has been purchased out of state (unless in a face to face transaction with an FFL). 922(a)(1) forbids making a business out of guns or ammo without being licensed. Those don't seem to apply in the given hypothetical.
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Old October 14, 2009, 09:32 AM   #5
NavyLT
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Quote:
Originally Posted by freespool
I've been wrestling with this one all day, as a California resident, to see if I can legally buy a long gun out of state from an FFL and bring it home. I've come to agree with the CA gun expert consensus that this isn't legal, but for reasons of limiting CA law, not Federal law per se.

It seems clear the seller violates 922(a)(5), in the OPs original scenario, but I don't see that the buyer has violated any laws. 922(a)(3) forbids bringing a gun back that has been purchased out of state (unless in a face to face transaction with an FFL). 922(a)(1) forbids making a business out of guns or ammo without being licensed. Those don't seem to apply in the given hypothetical.
In regards to a CA resident purchasing a shotgun/rifle from an out of state FFL:

1. The seller would not violate 18 USC 922(a)(5). 18 USC 922(a)(5) only applies to non-FFLs, "persons other than licensed dealers", and does not apply to licensed dealers.

2. I can not find anything in California law that prohibits a CA resident from buying a rifle/shotgun from an out of state FFL.

3. The sale must comply with the laws of both states - the state the FFL is in and the state the buyer is from. This is where you have problems. Whatever hoops an FFL in California must jump through to sell a rifle/shotgun, those same requirements are on the out of state FFL as well. I do not know if it is desireable or even possible for an out of state FFL to meet the California requirements and this is what the limiting factor would me as near as I can tell.
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Old October 14, 2009, 11:15 AM   #6
freespool
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My reply was a little confusing - I was researching CA and US gun laws yesterday with the personal objectives that I stated, but my comments about 18 USC 922(a)(5) and such were a response to azredhawk's proposed scenario where a (presumed) non-FFL goes to another state and sells a rifle to a (presumed) non-FFL resident. I was agreeing with your analysis of the seller's legal exposure, but not with the conclusion that the buyer was in violation of 922(a)(3).

With respect to my interest in purchasing a long gun out of state, in CA, 12072(d) requires that where neither of the two parties are CA legal dealers, that the firearm transaction goes through a CA legal dealer. Since the out of state FFL can't be a CA legal dealer, the Fed exemption that allows an FFL to sell to an out of state resident isn't satisfied. There are many exceptions to 12072(d) including one for transfers directly from a CA private party to an out of state FFL, but not one that would permit an out of state FFL to transfer directly to a CA resident. Out of state FFLs can transfer to a CA legal dealer, but since July 2008 now only by first getting a free authorization code from the CA DOJ that says the CA dealer is CA legal. Buying out of state and having the FFL send the gun to a CA dealer (and paying the ~$30 state fee and usually a minimum $50 dealer charge) is the way it gets done.

Lovely CA.
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Old October 14, 2009, 12:11 PM   #7
NavyLT
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Thank you for the clarification of California law!

Quote:
Originally Posted by freespool
My reply was a little confusing - I was researching CA and US gun laws yesterday with the personal objectives that I stated, but my comments about 18 USC 922(a)(5) and such were a response to azredhawk's proposed scenario where a (presumed) non-FFL goes to another state and sells a rifle to a (presumed) non-FFL resident. I was agreeing with your analysis of the seller's legal exposure, but not with the conclusion that the buyer was in violation of 922(a)(3).
I can see your point regarding the exact wording of 922(a)(3), but that is too thin of ice for me, personally, to test!

The exact wording of ATF FAQ's shares the same ambiguity as the Federal law:

(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)]

FAQ B2 only states that a non-licensed person may only acquire a firearm within their own state - it does not specifiy "from a resident of their own state".

FAQ B3 does not state that anything is prohibited, only provides an option for obtaining a firearm from an out of state source - in light of everything else I interpret that to mean residency, not location - but it could easily also be interpreted to mean out of state location.
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Old October 14, 2009, 02:38 PM   #8
johnwilliamson062
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If you knowingly assist him in braking a law there could likely be some sort of conspiracy charge.
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Old October 14, 2009, 04:20 PM   #9
NavyLT
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Quote:
Originally Posted by johnwilliamson062
If you knowingly assist him in braking a law there could likely be some sort of conspiracy charge.
Yep. Very good point. Hadn't though of that!

Personally, like I said, I would never try that thin of ice myself anyway, but you are correct.
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Old October 19, 2009, 02:41 PM   #10
johnwilliamson062
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A similar question I have:
I sell a handgun FTF in Ohio. To my understanding I have no legal obligation to ascertain the state residency or age of the person purchasing the firearm. I have no responsibility to check their drivers license. I always do, but I am not sure I am legally required to check their License or even ask them. I would assume if I neglect to ask them and they do not qualify I am ok, if I for some reason know they are not qualified and sell I am positive I would be committing conspiracy to...

Not really sure, and never looked into it as I just check the DL anyways, but my take on the issue.
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Old October 20, 2009, 10:27 AM   #11
carguychris
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Quote:
I sell a handgun FTF in Ohio. To my understanding I have no legal obligation to ascertain the state residency or age of the person purchasing the firearm. I have no responsibility to check their drivers license. I always do, but I am not sure I am legally required to check their License or even ask them.
No federal law explicitly requires a nonlicensee to record the buyer's age and state of residency, but that doesn't mean a nonlicensee doesn't need to check this information.

The requirement to establish the buyer's state of residence is written in 18 USC 922(a)(5), which prohibits sales in which the nonlicensed seller establishes "reasonable cause to believe {the buyer} does not reside in... the State in which the transferor resides". Admittedly, the phrase "reasonable cause" is somewhat vague, but viewing someone's state-issued picture ID is a widely accepted way to establish it. OTOH checking ID wouldn't necessarily be required if, say, the buyer is personally known to you, and you know where he or she lives and his or her approximate age.

As always, check your state and local laws.
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Last edited by carguychris; October 20, 2009 at 10:28 AM. Reason: Oops, double negative!
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