Birthday Gift Handgun

[s3779m]

Originally Posted by Aguila Blanca

s3779m, I'm going to guess that dogtown tom posted that for the same reason I did in post #42. Perhaps you should go back and review your posts objectively, instead of defensively.

And what did I say about the people overturning SCOTUS decisions? What I posted, and still stand by, the founding fathers wrote in the DOI that mankind had the right to overthrow and abolish a government, institute a new one. Thus, imo, making the people the final power. The people can abolish the government, not the other way around. That was in a suggestion to his statement/question

I've never heard or read anything of the sort.
I would be interested in knowing were you heard that.

of georgebush statement

..but in usa we the people are supposed to be the highest authority in all matters government, not the court not the legeslature, not the executator...

If the discussion is to be about abolishing SCOTUS rulings, as he is asking here,

Please provide evidence that "we the people are supposed to be the highest authority in all matters government" and can change a SCOTUS decision....get back to us

fine, lets hear what his thoughts are, as I have not given mine on that matter. If that quote is NOT WHAT HE MEANT, great, let's hear what he meant. That's part of having a discussion. These other statements, maybe you can explain the relevance to me as I can not see what they bring to the discussion.

If you bring up gold fringe on the flag or start in on a county sheriff being the law of the land I will not be surprised

It doesn't matter where it came from, I asked you a question.

So your answer is, you don't have an answer? Figures.

and my favorite,

Yet it doesn't. Your understanding of the Constitution is so flawed its comical.

The only thing I can get from those quotes is a greater intent for personal insults rather than discussing anything.

The DOI is not dead, the constitution did not cancel it out. Our rights still come from God, what the FF wrote is what justified the break from England, that mankind has that right. They then wrote a list of charges. In other words, without the right, the list, by itself, would not have given them justification to break away. They wrote that for a reason.

To look at it from another side, if our current government, (this is not to suggest I think this is where the country is going, just call this a strawman example) institutes complete election fraud, packs the supreme court, abolishes the bill of rights, ETC, I believe the DOI gives we the people the right to abolish that government and to install a new one. Doesn't mean we will have the ability, will be successful, only that we the people have that right.

But, if you say I am being too defensive and maybe we're never going to see this the same way, I'll leave the conversation, I really can not see a need for continuing it any further.

[The Verminator]

Originally Posted by s3779m

But, if you say I am being too defensive and maybe we're never going to see this the same way, I'll leave the conversation, I really can not see a need for continuing it any further.

Sometimes both sides of the debate are right in some ways.

That's what we have here.

Your conclusion is practical.

[dogtown tom]

s3779m

And what did I say about the people overturning SCOTUS decisions?

And what was the question I asked?

What I posted, and still stand by, the founding fathers wrote in the DOI that mankind had the right to overthrow and abolish a government, institute a new one. Thus, imo, making the people the final power. The people can abolish the government, not the other way around. That was in a suggestion to his statement/question

You "are standing by" something that was superseded by the Constitution.
We aren't governed by the Declaration of Independence, as our founding fathers instead wrote the Constitution to actually govern us. I learned this in third grade.

fine, lets hear what his thoughts are, as I have not given mine on that matter.

Sorry, I asked you first.

If that quote is NOT WHAT HE MEANT, great, let's hear what he meant.

Again, for the fifth or sixth time, the quote is from georgehwbush.
Again for the fifth or sixth time, you took exception with my rebuttal of "I've never heard or read anything of the sort.
I would be interested in knowing were you heard that."
Again, you replied "Right here" citing not the Constitution, federal law or a court case but the Declaration of Independence.

That's part of having a discussion. These other statements, maybe you can explain the relevance to me as I can not see what they bring to the discussion.

You haven't discussed, you've obfuscated and avoided answering the question by whining "I didn't post that". I addressed who made the quote FIVE DAYS AGO.

The DOI is not dead, the constitution did not cancel it out.

The purpose of the DOI wasn't to be law. It was not legislation. It was an assertion of the rights of people to choose their own government. Again, it was not law, not legislated, not legally binding.

You can keep babbling about what influence or effect the Declaration has, but in fact it has zero. The founders knew that, because the Constitution WAS THE framework for governance. The DOI was WHY we declared our independence from governance by the King, the Constitution is how our founding fathers planned governance.
Of note is that not one US Supreme Court case has ever been based on the Declaration of Independence. Not one. Not ever.

You asked "lets hear what his thoughts are".......well that's them.

georghwbush's assertion: "we the people are supposed to be the highest authority in all matters government" is based on a flawed premise. That premise being the DOI somehow invalidates the Constitution. It doesn't.

You supported that assertion.

[Frank Ettin]

Originally Posted by s3779m

...the founding fathers wrote in the DOI that mankind had the right to overthrow and abolish a government,...

That's very nice, but it really doesn't have anything to do with the issue. That was a justification for the break with England. And the Declaration of Independence isn't law:

1. Secor v. Oklahoma (No. 16-CV-85-JED-PJC, N.D. Okla. Oct. 21, 2016), at 7-7:

   ...To the extent that the plaintiff premises any § 1983 claim upon the Declaration of Independence, such a claim is not recognized in the law. "The Declaration of Independence is a state of ideals, not law." Swepi, LP v. Mora County, New Mexico, 81 F. Supp. 3d 1075, 1172 (2015) (quoting Schifanelli v. United States Gov't, 865 F.2d 1259 at *1 (4th Cir. Dec. 22, 1988) (per curiam) (unpublished)). "[U]nder the constitution [the court] is bound by events subsequent to the declaration of independence." Id. (quoting Rhode Island v. Massachusetts, 37 U.S. 657, 680 (1838)). Such "claims" under the Declaration of Independence are subject to dismissal with prejudice. Coffey v. United States, 939 F. Supp. 185, 190-91 (E.D.N.Y. 1996) (The Declaration of Independence does not grant rights that may be pursued through the judicial system); Endl v. New Jersey, 5 F. Supp. 3d 689, (D.N.J. 2014); Hai T. Le v. Hilton Hotel, No. C09-4871 PJH, 2010 WL 144809, at *13 n.6 (N.D. Cal. Jan. 11, 2010); Morgan v. County of Hawaii, No. 14-00551SOM-BMK, 2016 WL 1254222, at *24 (D. Haw. Mar. 29, 2016) (Dismissing claim alleging denial of life, liberty and pursuit of happiness because "[t]he Declaration of Independence is an important historical document, but it is not the law.").....

2. Craddock v. Beaufort County Sheriff Dept (No. 4:09-CV-92-D, E.D.N.C. Sep. 26, 2011), slip op at 18:

   ...As for plaintiffs' claim under the Declaration of Independence, "[t]he Declaration of Independence is a statement of ideals, not law." Schifanelli v. United States Gov't, 865 F.2d 1259, 1988 WL 138496, at *1 (4th Cir. Dec. 22, 1988) (per curiam) (unpublished table decision). Therefore, plaintiffs' section 1983 claim based on the Declaration of Independence fails.....

3. Brodzki v. State (11-cv-248-slc, W.D. Wis. Apr. 26, 2011), slip op at 2:

   ...The Declaration of Independence identifies the pursuit of happiness as an "inalienable right," but "the Declaration of Independence is not binding law and cannot be enforced in the context of a § 1983 action." Borzych v. Frank, No. 06-C-475-C, 2006 WL 3254497, *8 (W.D.Wis. Nov. 9, 2006)....." [D] Johnson v. Marsiglia (CIVIL ACTION No. 18-2854 SECTION: "H", E.D. La. July 15, 2019), footnote 17: "...'the Declaration of Independence is not a federal law and is not part of the Constitution; therefore, it cannot give rise to a cause of action.' Epps v. Russell Cty. Dep't of Human Res., No. 3:15CV25-MHT, 2015 WL 1387950, at *4 (M.D. Ala. Mar. 25, 2015).....

The thing is, what the Constitution means and how it applies in not up to you.

1. As the Founding Fathers provided in the Constitution, what the Constitution means and how it applies is up to the federal courts (Constitution of the United States, Article III, Sections 1 and 2):

   Section 1.
   
   The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....​
   
   Section 2.
   
   The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;...

   Judicial power is the power of a court to determine actual controversies arising litigants in courts..." Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed. In fact, of the 56 signers of the Declaration of Independence, 25 were lawyers: and of the 55 framers of the Constitution, 32 were lawyers.
   
   
2. So, as the Founding Fathers provided in the Constitution, if there is disagreement about whether a law is constitutional, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178): "...It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each....."
   
   
3. See also Madison said in Federalist 39:

   .....the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated....

4. And Hamilton in Federalist 78:

   ...The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing....

5. What our Constitution says and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States (3 U.S. (3 Dall.) 171 (1796)) appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803.
   
   
6. And indeed, it is a general principle in the United States that courts give deference to legislative acts and presume statutes valid and enforceable, unless unconstitutionality is determined (Brown v. State of Maryland, 25 U.S. 419 (1827); U.S. v Morrison, 529 U.S. 598 (2000)).
   
   
7. So one understands what the Constitution means and how it applies in real life in the real world by understanding federal court decisions addressing those questions.

[s3779m]

There is nothing that you wrote that I disagree with. And yes, the DOI is a statement of ideas, not laws. And it was those beliefs that founded this country. But we have not thrown those ideas away, or at least I do not believe we have. We still believe our rights come from God. The bill of rights is still written that way, the courts still rule that the BOR's is a restriction on government not the citizens. When the 13 colonies had articles of confederacy the FF set forth to abolish that form of government and install one that would govern better for a nation. They had that right. They put their ideas to the people to vote on, as was their right.

Again, in this situation, and we probably do not agree, if our government should declare "climate emergency" and take away our elections, if our government packs the courts or just does away with them in order to justify their moves, if our basic rights are taken away, if our states rights are abolished, in other words if our government chooses to no longer follow the constitution, we the people have the right to abolish that government and install a new one. Not only do we have the right, we have the obligation to do so for future generations, in that aspect, is why I answered the question that we the people have the final say on our government.

Can I find proof that we have that right, that the right is nothing more than a belief that our founding father had, of course not, any more than I can prove to you that our rights come from God. The FF offered no proof other than their belief.

Again, everything you wrote, I agree with. The hardest part I have with this discussion is where all the disagreement is coming from. If we have the belief that we the people do not have the final say in our government, what makes us different than China? Russia? If I can answer that question, their government does not believe the people have that right. Ours does, or should. I am guessing that belief is no where near as strong as it once was. And I am guessing that I am misreading many of the comments on this forum that suggest that we the people no longer have that right.

I have never thought a sitting president would willingly ignore a SCOTUS order. And get away with it. What is our recourse if congress chooses to also ignore SCOTUS rulings? Nor have I ever had the suspicion that voter fraud could take away our right to vote. That is not the best path for us to be on.

But again, I am just giving my viewpoints, I thought it was a simple answer to the question from many posts ago. It is impossible, imo, to prove a belief, you either agree or don't, nor can a belief be proven wrong, it is what it is. (hate that saying) I am not out to change anyone's opinion, the constitution is the law of the land, at least as long as our government follows it.

[Frank Ettin]

Originally Posted by s3779m

...It is impossible, imo, to prove a belief, you either agree or don't, nor can a belief be proven wrong, it is what it is....

Well people believe all sorts of things that have been established to be untrue. So while perhaps it's not possible to prove or disprove that you indeed believe what you say you believe, it is generally possible to establish whether what you believe is or is not true. But that's beside the point.

The thing is that this thread is about how to give someone a gift of a gun without getting into trouble. A useful answer needs to be based on what the law is, not on what you believe.

This is not theoretical. I am explaining how things really work in real life in the legal system in the United States -- well over a million lawyers, on the order of 30,000 state court judges, and roughly 1,700 federal court judges. Probably thousands, if not tens of thousands, of legal matters are being decided every day by the courts, and those decision are affecting the lives and property of real people in the real world. And those legal matters are being decided using law, not your beliefs.

Misinformation about how the law works and how courts actually decide matters tends to lead the vulnerable, the gullible, the uneducated, and the desperate to make bad decisions -- decisions that get themselves into trouble. The point of having a solid understanding law is to better be able to make choices that further one's interests while avoiding to the extent possible the snares and tripwires that life lays for us.

[s3779m]

Originally Posted by Frank Ettin

Well people believe all sorts of things that have been established to be untrue. So while perhaps it's not possible to prove or disprove that you indeed believe what you say you believe, it is generally possible to establish whether what you believe is or is not true. But that's beside the point.

The thing is that this thread is about how to give someone a gift of a gun without getting into trouble. A useful answer needs to be based on what the law is, not on what you believe.

This is not theoretical. I am explaining how things really work in real life in the legal system in the United States -- well over a million lawyers, on the order of 30,000 state court judges, and roughly 1,700 federal court judges. Probably thousands, if not tens of thousands, of legal matters are being decided every day by the courts, and those decision are affecting the lives and property of real people in the real world. And those legal matters are being decided using law, not your beliefs.

Misinformation about how the law works and how courts actually decide matters tends to lead the vulnerable, the gullible, the uneducated, and the desperate to make bad decisions -- decisions that get themselves into trouble. The point of having a solid understanding law is to better be able to make choices that further one's interests while avoiding to the extent possible the snares and tripwires that life lays for us.

Yeah, it did get a little off topic, my apologies.

[BeSeeingYou]

I did kind of the same thing. I bought a handgun for my son in law. We managed it simply by going intot he gun shop together, he picked out what he wanted, filled out the form and I laid down the plastic. Easy Peasy.

But again we live in Mississippi so people aren't as uptight as folks who live in say Oregon or California.

[dogtown tom]

BeSeeingYou I did kind of the same thing. I bought a handgun for my son in law. We managed it simply by going intot he gun shop together, he picked out what he wanted, filled out the form and I laid down the plastic. Easy Peasy.

But again we live in Mississippi so people aren't as uptight as folks who live in say Oregon or California.

It's not about being uptight, but complying with federal law.

Your son in law committed a federal crime by signing that Form 4473. He was not the buyer of that firearm.....you were.

[Aguila Blanca]

Originally Posted by BeSeeingYou

did kind of the same thing. I bought a handgun for my son in law. We managed it simply by going intot he gun shop together, he picked out what he wanted, filled out the form and I laid down the plastic. Easy Peasy.

But again we live in Mississippi so people aren't as uptight as folks who live in say Oregon or California.

So, technically, both you, your son, and the gun shop employee all knowingly participated in a straw purchase. Why? Because the purchaser (the person who paid for the firearm) was not the same person as the transferee (the person who filled out the 4473 and took possession of the firearm).

[JohnKSa]

Yup. Kind of surprised the dealer allowed it.

Since it was a gift, the rules say you should have filled out the form as the buyer.

[44 AMP]

I never agreed with the reasoning the Govt uses over the "strawman" purchase issue. I don't see why they would care where the money comes from, what I consider important is who winds up with the gun.

They care about where the money comes from, and I think that is a trap.

I know what the law is, and do obey the law, I just think they should have chosen a different way to go about it.

[JohnKSa]

The presumption (which can, of course, be incorrect as it was in this case) is that the person who puts up the money will ultimately end up with the gun, regardless of what is said or claimed at the time of purchase.

It's a reasonable presumption, but not one that is 100% accurate.

[Aguila Blanca]

Originally Posted by JohnKSa

The presumption (which can, of course, be incorrect as it was in this case) is that the person who puts up the money will ultimately end up with the gun, regardless of what is said or claimed at the time of purchase.

It's a reasonable presumption, but not one that is 100% accurate.

And the sticky wicket is especially severe for the person who signs the 4473. In the last instance, the son filled out the 4473 and I'm sure he checked the box that said he was the actual purchaser of the firearm. But ... he wasn't. His father paid for it, so his father was the actual purchaser.

I believe making a false statement on the 4473 is considered a felony (ask Hunter Biden how that's working out), so by giving the son a birthday gift the father inadvertently made his son an unconvicted felon. I'm sorry if that sounds harsh but, under the law, that IS the situation.

[Swifty Morgan]

I bought a Glock for my dad's birthday. Told the FFL up front what the story was in order to make sure it was legal. They had no problem with it. I relied on their expertise and their unwillingness to risk their license.

Here's a weird one. I bought a rifle, which I ordered online and picked up in person. When I got it home, AFTER the background check, I realized I had blown it. I had ordered a left-handed gun.

Took it back to the store, and even though they had processed the paperwork for a left-handed gun, they took it back and gave me another gun. Can't recall whether there was a second 4473. I assume there was. I was very happy, because otherwise I would have taken a loss on Gunbroker.

I think maybe their big concern was the possibility they would have to sell the gun as used.

[tangolima]

Originally Posted by Swifty Morgan

I bought a Glock for my dad's birthday. Told the FFL up front what the story was in order to make sure it was legal. They had no problem with it. I relied on their expertise and their unwillingness to risk their license.

Here's a weird one. I bought a rifle, which I ordered online and picked up in person. When I got it home, AFTER the background check, I realized I had blown it. I had ordered a left-handed gun.

Took it back to the store, and even though they had processed the paperwork for a left-handed gun, they took it back and gave me another gun. Can't recall whether there was a second 4473. I assume there was. I was very happy, because otherwise I would have taken a loss on Gunbroker.

I think maybe their big concern was the possibility they would have to sell the gun as used.

I don't think it is kosher they gave you another gun. That would screw up their bound book. Big problem if the ATF audit spots the inconsistency.

-TL

Sent from my SM-N960U using Tapatalk

[Swifty Morgan]

Could be worse. I could have been smoking crack when I bought it.

They probably worked it out so it was legal. I don't know the details.

[tangolima]

Probably prudent not to talk about it on open forum?

-TL

Sent from my SM-N960U using Tapatalk

[Swifty Morgan]

Not really worried. The concern appeared to be about store policy, not federal law. There are a few retailers who take guns back, and they are not hiding it.

I had a strange situation in which a store sent a bad gun in for warranty work for me, and the manufacturer kept it. The manufacturer itself sent a replacement, and there was another NICS check but no checkout, because I didn't pay anything.

If you're concerned, edit your post quoting me.

[tangolima]

I wasn't involved in that transaction, so I'm good. Thanks.

Perhaps there was simple "gun swapping" entry the FFL can do to make their bound book consistent with their inventory. I am just not aware of.

-TL

Sent from my SM-N960U using Tapatalk

[dogtown tom]

Swifty Morgan

Took it back to the store, and even though they had processed the paperwork for a left-handed gun, they took it back and gave me another gun. Can't recall whether there was a second 4473. I assume there was.....

There should have been another 4473/NICS. Once the transaction was complete and the dealer has signed a dated the 4473, he cannot add or remove firearms from that form.

See: Additional firearms purchased by the same transferee/buyer may not be added to the Form 4473 after the transferor/seller has signed and dated the form.

[dogtown tom]

tangolima

I don't think it is kosher they gave you another gun. That would screw up their bound book. Big problem if the ATF audit spots the inconsistency.

There's nothing illegal about it....as long as the bound book shows the actual disposition of the original LH rifle, the reacquisition of that rifle, then the disposition of the RH rifle.

ATF will wig out if there is no 4473/NICS showing the second rifle.

[Swifty Morgan]

It's nice to be cared about.

In order for the feds to go after the seller, they would probably want some evidence a crime was committed, and exchanging guns with proper NICS checks is not a crime.

I think they have their hands full with people like Larry Vickers and the kids who sell Glock switches at middle schools.

[tangolima]

Originally Posted by dogtown tom

There's nothing illegal about it....as long as the bound book shows the actual disposition of the original LH rifle, the reacquisition of that rifle, then the disposition of the RH rifle.



ATF will wig out if there is no 4473/NICS showing the second rifle.

That's what I meant. The book would need to somehow shows the swapping. If the book says LH123 has gone to Mr. Swifty, but they found it in the safe. And RH456 should be in inventory but it is nowhere to be found. It would be an inconsistency. At least the FFL would have a lot of explanation to do. They can't just swap the guns casually without paper trail.

It doesn't really have to be to the level of committing crime. The FFL needs to follow regulations to conduct business. Their license may be in jeopardy if they don't.

-TL

Sent from my SM-N960U using Tapatalk

[Swifty Morgan]

All I can say is that this wasn't some guy dealing out of his car trunk, nor was it an activist shop that also sold Lightning Links. It was a very respected retailer.

I actually did a transfer with a guy working out of his car trunk once, so pardon me for broad-brushing the car trunk guys. He received a K31 for me. Showed up with the wrong box, open, and somehow the magazine serial number no longer matched the gun. He had also shaved his head. The seller was not happy, but they made it right.

Don't buy a K31, by the way.