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Old February 3, 2010, 07:41 AM   #1
Winchester_73
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Antique pre 1898 handgun transfer problem!!!

Yes I know that antique firearms prior to 1898 do not need transferred, and thats the whole problem! Recently I found a guy who has a S&W double action 3rd model (I think) for sale in 38 S&W. SN is 291XXX. Every book I have says that they quit making that model, judging by SN in 1895. So we established it as an antique. The problem is that the guy who has it said he bought it at a gun auction which mandated transfers. I told him that the FFL was wrong because the gun is antique. He says well if you buy it, it must be transferred. I offered him a bill of sale where I give him my drivers licence no, home address, phone number, then write the make, model, SN, barrel length, etc with my signature. He declined that offer and said that if I want it, it has to go in my name. I'm interested in the gun because he is asking $100. Its nickel, but the DA mechanism is broke, the gun works in SA however, and it has very nice original grips.

My question is: How do you get an antique out of your name? Is it something the state can do? The ATF? Has anyone ever heard of this happening or have any personal experience? I don't want to put it in my name because if I ever sell it, I want to sell it as an antique. I would think theres a way to correct the FFLs error since antiques are not supposed to be transferred?
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Old February 3, 2010, 08:08 AM   #2
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I do not understand what you mean by "My Name". Even if it does not require an FFL to transfer, if the only way the guy is comfortable to transfer is through the FFL, what is the problem?

I thought they did not keep names of who own what gun in any federal data base. (If the gun is recovered they run it through the system (NCIS?) to see if it has been reported stolen. If it has, they can trace it back to the last registered owner through the information that owner provided, not through any national data base.

If I wanted the gun bad enough, I would just do the FFL transfer and be happy.
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Old February 3, 2010, 08:13 AM   #3
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It's a personal sale. He is insisting that you go through the NICS check at an FFL. He is protecting himself. Does your state require registration of handguns? I don't understand your objection, it will still be an antique. The 4473 is just a piece of paper that stays with the FFL who does the NICS check. You can later sell it if you like, you are not married to it.
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Old February 3, 2010, 08:14 AM   #4
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Once it's yours, you can deal with it as you like, and transfer it as an antique.
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Old February 3, 2010, 08:56 AM   #5
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He is insisting that you go through the NICS check at an FFL. He is protecting himself. Does your state require registration of handguns?
You're missing the point. The cardinal thing to keep in mind here is not that its a handgun but that it was made before 1898, probably around 1892 give or take. In that scenario, off the top of my head, NO state requires a transfer or registration.

The problem I have with all of this is that I'm not even sure a legitimate FFL would do a transfer of an antique. Kind of like when you bring in a used rifle to transfer to someone else in your state, it cannot be done. There is no form for that.

I would just rather it not be in my name since cartridges are still available in 38 S&W, and if someone wanted to, they could, yada yada you get the picture. I would rather not have the possibility there.

I guess I will have to call my state police followed by my FFL. I understand what you guys are saying but if I can avoid having an antique put into my name, I will. If I can't get it any other way, I guess I will have the transfer done. I really don't want to have the gun put into my name because when I'd ever sell it, there would be no transfer so the gun would be left in my name.
In other words, it would be in someone else's hands, and still in my name. I see too many potential negative scenarios there so thats not what I would like to do is all.
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Old February 3, 2010, 10:54 AM   #6
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OK, it seems like we have multiple failures to understand how the FFL and NICS check system works.

Unless your state has its own registration scheme, the gun is not in "your name", nor is it in the seller's "name". It's not registered to anyone. Period. The NICS system and the Form 4473s (the checkboxes you fill out when you buy a gun) are not a registration scheme unless you are wearing a tinfoil hat.

The records of each day's NICS checks are destroyed every night. Form 4473s are kept by the FFL forever unless the company goes out of business or they are investigated. If either thing happens, they ATF takes them, but most sources indicate that they're buried in a warehouse afterwards rather then being put into some nefarious database.

The main purpose of government gun "tracing" is to allow an investigator to take a post-GCA, post-1968 gun, match the serial number to the manufacturer's records, find the FFL it was shipped to, and then request the FFL to check their records and find out who originally bought it. As an astute observer will note, this information generally does less good as time goes on, because the gun could have been sold through multiple private sales and/or sales through legit FFLs that can't be traced because the records for used guns aren't put in a central database.

I guarantee you that the only reason the auction house required a transfer was to prevent accidentally selling a non-antique without one. It's often hard to correctly identify and date antique guns, particularly because some gunmakers didn't put serial numbers on all of their products prior to the 1968 GCA, some (particularly military contractors) used confusing and/or overlapping serial numering schemes, and it was perfectly legal in many jurisdictions to change or remove a gun's serial number.

If it were me, I would comply with the guy's request, meet him at an FFL, and let the FFL explain to him why this whole exercise is unnecessary. Then you can tell him that whatever fee the FFL charges for the paperwork will be deducted from the purchase price.
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Old February 3, 2010, 11:42 AM   #7
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Do you have a buddy with a C&R license? I'm pretty sure they could do the transfer and make it look official. No 4473 necessary because it's an antique. A pawn shop could also do it as a consignment sale.
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Old February 3, 2010, 11:45 AM   #8
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I think I understand, but...

Carguy chris, thank you for the info. That clears it up some. Do you assume that because of the auction premise, the 4473 was not used, only a background check was done? If thats the case, they just made sure he was legally allowed to own a firearm, correct? And therefor there is no record of the transaction with the FFL? Kind of like buying a handgun from a private party?
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Old February 3, 2010, 02:35 PM   #9
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I got it all figured out after speaking with the state police today. Thanks all.
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Old February 3, 2010, 03:47 PM   #10
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And they said...?
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Old February 3, 2010, 06:57 PM   #11
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The transfer from him to me is not needed. He should just get a receipt that outlines the sale to me and keep it for his records. However, he insists that he will not do that so I am going to give him $90 for the gun because the transfer will be $10. Its a good gun for $100, but the DA mechanism needs repaired. After that, it should end up being a bargain.
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Old February 3, 2010, 08:11 PM   #12
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[I know that antique firearms prior to 1898 do not need transferred, and thats the whole problem!]

That is NOT necessarily true, and both you and your SP (who are not lawyers) are mis-informed - which is the real problem with your intended purchase.

The fact that the subject antique revolver is chambered for a conventional, commercial, and readily-available cartridge over-rules it's "antique" status for the purposes of transfer under Federal Law.

The seller is entirely correct, in that his .38S&W chambered antique needs to be transferred through an FFL, or possibly a C&R.

Here's the applicable Federal Law:

http://www.nraila.org/federalfirearms.htm#Sec.%20921

Gun Control Act Of 1968
(P. L. 90-618 As Amended, Principally By P.L. 99-3081)

Title I : State Firearms Control Assistance

Chapter 44. Firearms

(Title18, U.S. Code, Sections 921-929)

Sec. 5845. Definitions

(g) Antique firearm:The term "antique firearm" means ANY FIREARM NOT DESIGNED or redesigned FOR using rim fire or CONVENTIONAL CENTER FIRE IGNITION WITH FIXED AMMUNITION and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898) and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.





FWIW - If the subject revolver had been chambered for some obsolete cartridge, say .32 Short Rimfire - THEN, no FFL transfer would be required.

.

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Old February 3, 2010, 08:17 PM   #13
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PetahW is right.....

And....

Quote:
Do you have a buddy with a C&R license? I'm pretty sure they could do the transfer and make it look official. No 4473 necessary because it's an antique.
C&R Licensees do not do "transfers" such as described. They also do not fill out 4473's. They are not firearm dealers.
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Old February 3, 2010, 08:47 PM   #14
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I know a C&R is not a dealer. But if an antique firearm doesn't need to go thru a dealer, I thought the C&R could basically act as an escrow agent to satisfy the seller.
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Old February 3, 2010, 09:48 PM   #15
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That is NOT necessarily true, and both you and your SP (who are not lawyers) are mis-informed - which is the real problem with your intended purchase.

The fact that the subject antique revolver is chambered for a conventional, commercial, and readily-available cartridge over-rules it's "antique" status for the purposes of transfer under Federal Law.
No, that's not correct. Seriously. The part you quoted applies to replicas only. You're taking it out of context. The "ands" and "ors" in federal laws must be read very carefully. Here's the entire text of the federal law, from 18 USC ยง 921.
Quote:
(16) The term ``antique firearm'' means--
(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if such replica--
(i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term ``antique firearm'' shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock,
or any combination thereof.
(emphasis mine)

In summary, an antique is one of three things:
  1. Any firearm made before January 1, 1899, or
  2. A replica of a firearm made before January 1, 1899 that doesn't accept commonly available centerfire or rimfire ammunition, or
  3. A blackpowder muzzleloader.
Otherwise, how could the Sportsman's Guide offer this item for sale, without requiring transfers? It's chambered in 7x57mm Mauser or 7.62x51mm NATO!

http://www.sportsmansguide.com/net/c....aspx?a=532481

Mandatory disclaimer: I am not an attorney, nor do I play one on TV. This is not official legal advice. Caveat emptor.
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Old February 3, 2010, 10:25 PM   #16
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Both carguychris and Hkmp5sd are exactly right.

1. Any gun made during or before 1898 is an antique in the eyes of the BATFE.
2. If you've got a C&R license, don't you be doing any firearms transfers for anyone. That's trouble for sure!
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Old February 3, 2010, 10:37 PM   #17
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Wow. I talked to the STATE POLICE, described the situation in every detail and yet still people argue that I misinterpreted the law? I'm glad now everyone, hopefully, is on the same page. I guess a lot of people learned something with this thread
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Old February 4, 2010, 10:18 PM   #18
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Thanks for the clarification and the great catch carguychris, context IS everything! I was scratching my head and trying to find the regs myself because I knew there was something funny going on with the previous post!

Winchester_73, the police (state or otherwise) very frequently are unaware of all kinds of firearms regulations. It's a fact and real problem all across the country. Usually the best answers about the legality of this, that or the other thing come from lawyers and attorney generals. Cops enforce the laws they remember to enforce. It is not their job to interpret the laws, but they often try with unfortunate consequences.

Although they are correct in this case, you can do what the State Police recommend in other situations, but that is no protection from prosecution in the future. If they give you bad advice, telling the judge, "The police said it was OK" is not a defense.
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Old February 4, 2010, 11:05 PM   #19
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It seems to me we have a couple of stubborn people here. One guy is insisting on transferring an antique as if it were a modern gun. The other is equally insistent that he is not going to do that, even though there is apparently no reason not to (he is not a prohibited person).

I have had the same thing happen when a seller didn't believe the gun was an antique, so I went through the paper work. So what? The State Police are hardly unaware that I own guns.

The answer to Winchester 73 is simple. If you want the gun, do what the seller wants. If you don't want the gun, walk away. Not hard to understand, is it?

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Old February 4, 2010, 11:39 PM   #20
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Winchester_73, the police (state or otherwise) very frequently are unaware of all kinds of firearms regulations. It's a fact and real problem all across the country. Usually the best answers about the legality of this, that or the other thing come from lawyers and attorney generals. Cops enforce the laws they remember to enforce. It is not their job to interpret the laws, but they often try with unfortunate consequences.
Of course thats true unless you talk to the STATE POLICE, FIREARMS DIVISION, which I did. It actually their JOB to answer these types of questions, and they do HAVE to know. I would never ask a joe blo cop a serious firearms question but in this case, I asked the appropriate people.
For your state, and every state has one, its good to have the FIREARMS DIVISION phone number. They are the hotline to answer any type of question and if they don't know, they simply look it up. They're basically 1 step below the ATF, kind of like the ATF for the state you could say.

Quote:
I have had the same thing happen when a seller didn't believe the gun was an antique, so I went through the paper work. So what? The State Police are hardly unaware that I own guns.

The answer to Winchester 73 is simple. If you want the gun, do what the seller wants. If you don't want the gun, walk away. Not hard to understand, is it?
It is that easy but I knew that from the beginning. This thread started because I wanted to build up "ammo" to go after him and persuade him not to do the transfer because its a waste of MY money to do it. I am concerned about wasting money on an unnecessary transfer because the DA mechanism of the gun is broken and I will have to most likely sink more $$$ into the gun to get it to work. But on the other hand, I like the gun, so I will be doing it and I will be post pics when I get around to buying it. I asked him to reduce his price by the cost of the transfer and he agreed so now it matters not. I thought if I could explain the whole thing to him perfectly, I could win him over to my opinion but alas, it was not meant to be. Thanks for the help guys and special thanks for carguychris who had to interpret things accurately for us since we failed to do so (I agreed anyways but it was nice to have the confirmation).
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Old February 5, 2010, 09:16 AM   #21
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Of course thats true unless you talk to the STATE POLICE, FIREARMS DIVISION, which I did. It actually their JOB to answer these types of questions, and they do HAVE to know.
That's a pretty important piece of missing context! But in Rhode Island, we do not have a "Firearms Division" within the SP. So you're pretty much at the mercy of whoever you talk to- some are more knowledgeable than others. In fact, it is the Department of Environmental Management that certifies you to be able to purchase a handgun. As if that makes much sense...
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Old February 5, 2010, 09:27 AM   #22
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I really thought every state would have one. It makes following the laws much easier because we all break laws due to ignorance but in the courts, ignorance is rarely, rather never, acceptable. Maybe they will get one in Rhode Island eventually. I ended up saving the number in my cell for purchasing disputes or for other types of questions.
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Old February 5, 2010, 10:20 AM   #23
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It is a common misinterpretation of federal law, that a gun made before 1899 is not antique if ammo is still available for it.
I run into this misinterpretation 3 or 4 times a year.



There are lots of dealers who just disregard antique status. I have seen this often with the Finnish M39. A high percentage of these are antiques. To determine manufacture date of the receiver, you must pull the receiver from the stock and look at the date code on the bottom of the tang.

I have seen many gun stores, as well as online gun dealers, who don't bother, and require a FFL for any M39 they sell.
CYA carried to the extreme, I guess they feel, better safe than sorry.

Even though these dealers are not going by federal rules, you have the choice, play by their rules, or find someone else to buy a gun from.
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Old February 5, 2010, 10:42 AM   #24
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Maybe they will get one in Rhode Island eventually.
Probably not. Rhode Island is anticipating a $400 million deficit for each of the next 3 years. But aside from that, there are actually very few laws in this state. An interesting comparison is made with Connecticut. I forget the actual number of words, but the CT state statutes are about 3 times are large.

Rhode Islanders are a bit lazy and sloppy when it comes to law. Or maybe they're just all libertarians? I have yet to tell and I have been here more than a decade. I've lived in a lot of different places and Rhode Island is definitely the most bizarre. Heck, until last year prostitution was legal indoors, the only state in the Union!

Unfortunately, there is one law in RI that just breaks my heart: No NFA items allowed. Period.
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Old February 5, 2010, 10:50 AM   #25
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It is a common misinterpretation of federal law, that a gun made before 1899 is not antique if ammo is still available for it. I run into this misinterpretation 3 or 4 times a year.
Ironically after I told a gun collector friend of mine this whole story, he responds with "well they're not antique if they fire a common cartridge, regardless of manufacture date" so I said, "no thats not true. That statute applies to replica firearms of antiques such as conversions. Any gun before 1899 is antique." Then he says "well the dealers paper antique guns a lot" so I said "I don't care what the dealers do, I'm telling you what the law is, straight from the state FIREARMS division" I think he still didn't believe me. Who would reference what a dealer does as a support that they're right about a law? A lot of dealers don't know the laws well and many don't really know what they're doing.
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