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Old February 16, 2013, 12:44 AM   #1
JimDandy
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Transferring possession? Is it a sale?

What is the federal law that determines when possession is changed in re Firearms? In other words, Uncle Willy comes over, we go to the pistol range, I loan him my pistol, its still my possession right? Then he heads out to my Uncle Bob's farm several hours away for the weekend with it, and we transfered possession right? What's the line, and where is that delineated?
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Old February 16, 2013, 04:31 AM   #2
Sport45
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I'm no lawyer, but it seems to me that if the gun is with someone else and you're not around it has been transferred. Ownership and possession are two different things.
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Old February 16, 2013, 08:59 AM   #3
Aguila Blanca
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It gets further complicated because Federal law is specific that loans pursuant to Federal law (i.e. those involving multiple states) are allowed only for "temporary" use and only for legitimate sporting purposes. And the BATFE's definition of "sporting purpose" does not include such things as practical shooting competition or practice, cowboy action shooting, and the like.

Stay within one state, and at least some states (such as PA) are considerably more lenient with regard to loans.
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Old February 16, 2013, 09:04 AM   #4
Qtiphky
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Carry permit?

I think a CCW also can come into play. When I researched it for Michigan, I found that I as a CCW/CLP can carry any pistol, whether it is registered to me or not. However, someone who does not have a CCW/CLP can not carry, even in their car in a locked case unloaded, yada yada yada, any pistol that is not registered to them. However, if it is a pistol registered to them, they can "transport in a case, unloaded and not accessible to any occupant in the vehicle."
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Old February 16, 2013, 09:22 AM   #5
Spats McGee
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I did a quick search of some federal law in the 18 USC 920's. I couldn't find a definition of "transfer," or of "possess" or "possession," oddly enough. I couldn't even find a line that said "transfer (or one of the other relevant terms) is the same as defined in XYZ." So I looked in the CFR. Nada. So that one's kind of, well, squishy. (That's the technical term.) What we do know is that temporary loans for "sporting purposes," are excluded from the operation of many federal statutes. Exactly where that line is drawn though, is somewhat unclear.
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Old February 16, 2013, 09:54 AM   #6
Frank Ettin
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Quote:
Originally Posted by Spats McGee
...I couldn't find a definition of "transfer," or of "possess" or "possession," oddly enough. I couldn't even find a line that said "transfer (or one of the other relevant terms) is the same as defined in XYZ."...
Over the last few years I've had many occasions to look into this subject.

See 18 USC 922(a)(5), emphasis added:
Quote:
(a) It shall be unlawful --

...

(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;
And here are some definitions of "transfer":
And finally, see Perrin v. United States, 444 U.S. 37 (United States Supreme Court, 1979), at 42:
Quote:
...A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning...
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Old February 16, 2013, 11:29 AM   #7
2ndsojourn
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From Qtiphky
"I think a CCW also can come into play. When I researched it for Michigan, I found that I as a CCW/CLP can carry any pistol, whether it is registered to me or not. However, someone who does not have a CCW/CLP can not carry, even in their car in a locked case unloaded, yada yada yada, any pistol that is not registered to them. However, if it is a pistol registered to them, they can "transport in a case, unloaded and not accessible to any occupant in the vehicle." "

What's this registry you're referencing? Is it something unique to your state (and possibly NJ)? If there's no registry, why couldn't the 'transfer' be handled like a private sale? Then just transfer it back when he's through borrowing it?
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Old February 16, 2013, 11:57 AM   #8
Frank Ettin
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Quote:
Originally Posted by 2ndsojourn
...If there's no registry, why couldn't the 'transfer' be handled like a private sale? Then just transfer it back when he's through borrowing it?
The issue could be whether or not the transferor and transferee are residents of the same State. The OP wasn't clear.

If they are residents of the same State, it will be a matter of only state law. In that case we would need to know the State in order to opine on what formalities might be required.

If the transferor and transferee are residents of different States, it would be an interstate transfer. In that case federal law, as well as the law of the State in which the transfer takes place, would be involved.

But the short answer is that the word "transfer" should be understood to mean giving possession, even if only temporary, to someone else. So if I hand you my gun at the range so you can shoot a few rounds with it, that is really a transfer -- albeit of very short term and under my immediate supervision.

So for example, if I let you shoot a few rounds at the range with my gun, even while I was looking on, and if I knew you to be a convicted felon (or a regular marijuana user, of under a domestic violence restraining order, etc.) I would be committing a federal crime by transferring a gun to a prohibited person. While that's apparently not the situation here, it illustrates the interpretation and application of "transfer."
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Old February 16, 2013, 03:17 PM   #9
JimDandy
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Actually what I'm getting around to is massaging and preening so to speak, my main disagreement with universal background checks. If Sale and Transfer could be synonymous. If some kind borrowing the family heirloom 1000 dollar rifle (for easy math on use tax) would be required to pay about $250 given sales tax rates(25 first FFL, 100 Use Tax, 25 Second FFL, 100 Use Tax to give it back to original "possessor") to borrow Great Grandpa's Winchester for a weekend to go upstate to the farm of some gal he met while at college and do some plinking with her dad and brothers.
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Old February 16, 2013, 05:45 PM   #10
Frank Ettin
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Transferring possession? Is it a sale?

It's really more complicated.

First, every sale is a transfer, but not every transfer is a sale.

Second, there is ample evidence that laws could be written to treat different kinds of transfer differently. For example, in
California private party transfers must go through a dealer. However, exceptions are made for certain transfers between members of one's immediate family or loans up to thirty days to someone known to the lender. And federal law provides the loan exception note in 18 USC 922(a)(5) quoted above.
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Old February 16, 2013, 06:05 PM   #11
JimDandy
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Right Frank, but in that temporary loan exception, how long is temporary?
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Old February 16, 2013, 06:25 PM   #12
wally626
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Temporary is not defined. I do not know of any court cases in which it came up.

If you are being supplied by an outfitter for a backcountry hunt in ALaska, a few weeks may be temporary. Lending a weapon for the duration of an allowed activity would probably be a safe definition. But I am not a lawyer.
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Old February 16, 2013, 10:01 PM   #13
Frank Ettin
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I did a quick search of a subscription data base (Fastcase) for a case in which a court looked at the "loan" exception to 18 USC 922(a)(5) and didn't find any.

Two things come to mind: (1) if you have to wonder if your particular transfer/loan is temporary, it probably isn't; and (2) and if it's for a particular use of definable duration (e. g., a day at the range or a hunting trip into the back country) it's probably likely to be considered temporary.
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Old February 16, 2013, 10:20 PM   #14
Spats McGee
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Quote:
Originally Posted by Frank Ettin
. . . . for a particular use of definable duration . . . .
The bad news is that the "temporary sporting purpose" is not be spelled out in the caselaw as far as I know. The good news is that the phrase used by Frank Ettin and quoted above is, IMO, a very useful rule of thumb.
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Old February 16, 2013, 11:14 PM   #15
Qtiphky
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Registered

In Michigan, I must bring paperwork to my local police department when I come into possession of a pistol. Whether it be by purchase or inheritance, I must bring registration to my local police department. Where it goes from there I do not know.
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