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Old June 11, 2011, 09:52 AM   #26
Aguila Blanca
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Quote:
Originally Posted by I98ster
Im the OP on this thread. Although the ultimate intent was for my friend to ultimately own the pistol, his relative maintained possession of the pistol UNTIL the proper paperwork could be filled out in NY.

The way he sees it (and I tend to agree), is that the relative purchased and possessed it legally, and then when the paperwork was complete in NY and was sent via FFL, that to was a legal transaction.

In fact, the way I see it, every step of the way was legal. It cannot be determined from a legal standpoint the mindset of the relative for the original purchase. All steps in the process were legal. The relative knew that he was going to transfer it legally, so my friends arguement was that it was NOT a straw purchase.

What say you???
I say it was a straw purchaser. And the mindset of the relative has been clearly established by your statements. Your friend was in a state where he could not legally purchase a handgun, so he asked a relative to make the purchase for him.

End of discussion. Straw purchase.

Your friend could have given the shop the money (or a down payment), returned to NY to complete the paperwork, then had his NY FFL send a copy of his license to the shop in NC and everything would have been squeaky clean.

Out of curiosity, did the relative in NC make the purchase with his own money, or did your friend provide the funds to buy the firearm?

Quote:
Originally Posted by I98ster
However, what I am interested in is if given this exact situation, can anyone get in trouble? Remeber, the gun was purchased legal and transfered to NY legal. A straw purchase is illegal. That means someone can be in trouble with the law if they perform such an act. Since the relative purchased it legal and transfered it to my friend legally, nobody can be in trouble. So, how is this a straw purchase?
You have it backwards. You are arguing that the purchase was legal, therefore it was not a straw purchase and therefore it wasn't illegal. The facts are, the purchase was NOT legal, because the NC relative was NOT purchasing the gun for himself he was purchasing it for someone who could not legally buy it in NC. So your premise that "the gun was purchased legal" is factually incorrect.

Quote:
Originally Posted by I98ster
Playing devils advocate again, what is the difference between the relative buying it for himself, having a change of heart 15 minutes later, and selling it to someone who can lawfully own a pistol versus what actually happened here?
There are two differences.

First, if the NC relative buys the gun for himself, he is not perjuring himself when he checks "Yes" on the 4473 saying he is the actual purchaser.

Second, the NC relative is not buying the gun for someone else, so it isn't a straw purchase.

Again, just for clarity -- when the initial purchase was made in NC, whose money was handed to the gun shop? The answer to this doesn't ultimately affect the legality of the overall transaction, but it would be indicative of "intent." Did the NC relative buy the gun with his own money and then sell it to your friend in NY, or did the NY friend provide the funds for the initial purchase?

Last edited by Aguila Blanca; June 11, 2011 at 10:04 AM.
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Old June 11, 2011, 10:16 AM   #27
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Quote:
Originally Posted by l98ster
...Playing devils advocate again, what is the difference between the relative buying it for himself, having a change of heart 15 minutes later, and selling it to someone who can lawfully own a pistol versus what actually happened here?
Quote:
Originally Posted by vranasaurus
The length of time one owns it prior to transfering it would be used as evidence to prove the intent of the person who filled out the form.

While it is possible to have a change of heart in 15 minutes it would be a hard sell to a jury.
Intent is a part of the question of whether something is or is not a straw purchase and therefore illegal.

And contrary to popular opinion, prosecutors convince a jury of a defendant's intent all the time. Intent is an element of many crimes and can frequently be inferred from actions surrounding an event or transaction, including timing. And sometimes statements made in letters, notes or even posts in an Internet forum can successfully be used as evidence of intent. (And there are numerous exceptions to the hearsay rule that would generally allow such statements to be used as evidence.)
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Old June 11, 2011, 11:27 AM   #28
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fiddletown,

I meant that it would be hard for the defense to convince a jury that the defendant changed his mind 15 minutes after making a purchase.

The 15 minutes time frame would be excellent evidence against the defendant as far as intent goes.
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Old June 11, 2011, 11:51 AM   #29
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Quote:
Originally Posted by vranasaurus
...I meant that it would be hard for the defense to convince a jury that the defendant changed his mind 15 minutes after making a purchase.

The 15 minutes time frame would be excellent evidence against the defendant as far as intent goes.
Sorry, I guess I didn't make myself clear. I completely agree with you.

The reason I quoted you in my response is that you gave an excellent example of how a prosecutor can use facts surrounding a transaction, such as timing, to convince a jury of intent.

Clearly a jury could easily infer, as a prosecutor would argue, that the short time interval shows that the defendant always intended to transfer the gun and that his claim to the contrary is eyewash.
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Old June 14, 2011, 04:06 PM   #30
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Quote:
your relative could be prosecuted for lying on the 4473.
It all depends on the relationship of the relative cause as we all know a close relative can gift a handgun to another as I did to my nephew. Since it went thru an FFl how can it be proven as a straw purchase?

Now if the guy was disqualified by the law as a felon or wife beater etc then yes straw 100%.

Things can be over analled to the point it all stinks....

Mom used to send me to my room for tattleing......
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Old June 14, 2011, 04:56 PM   #31
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The fact that one may not get caught for perpetrating an illegal act does not in any way make the act legal. It just makes the perpetrators "unindicted co-conspirators" rather than convicted felons.

The original question here was not "how likely are they to get caught?" The question was, "Was it legal?" My answer is "No."

I note the original poster has not answered my question several posts above as to who provided the "up front" money to make the initial purchase. As for your attempt to construe the transaction as a gift -- it would be a gift only if the NC cousin made the purchase using his own money, and then gave the firearm to the NY cousin, with no repayment asked, expected, or made.
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Old June 14, 2011, 05:04 PM   #32
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Actually there are several federal charges that could be bought against the two people involved.
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Old June 14, 2011, 07:15 PM   #33
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Quote:
Originally Posted by markj
It all depends on the relationship of the relative cause as we all know a close relative can gift a handgun to another as I did to my nephew....
No it doesn't.

Distant relatives and unrelated friends also give people gifts. And there's a difference between buying a gun as a gift and making a straw purchase. This difference is covered in the ATF reference guide quoted in posts 17 and 18.

Quote:
Originally Posted by markj
...Since it went thru an FFl how can it be proven as a straw purchase?...
There are all sorts of ways intent and motivation can be proved. It's done all the time in court. All sorts of facts surrounding an event or transaction can be good evidence of intent and motivation.

And of course in this situation we have all the useful information posted by the OP.

Quote:
Originally Posted by markj
...Now if the guy was disqualified by the law as a felon or wife beater etc then yes straw 100%...
But that is not required for a straw purchase. See posts 17 and 18.
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Old June 15, 2011, 02:57 PM   #34
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Quote:
No it doesn't.

Distant relatives
I said it depended on the relationship. I did this, I had a 1911 I gave it to my nephew when he got out of boot camp. All legal. I never said anything about distant relative, where did you make that one up?

Is a federal thing, a close relative can gift a gun to another close relative.

Gee I have given a lot of guns to folks, all you need to do is a FFL transfer to the person you are giving the gun too. Same as if they bought it from you.

Person A bought the gun and did the paperwork, person b added the gun to his allowed gun list (which is something I find repulsive) after he was ALLOWED to posses this gun it was transfered to him thru a FFL. Blame the state he lives in laws and requirements.
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Old June 15, 2011, 04:50 PM   #35
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Quote:
Originally Posted by markj
...I said it depended on the relationship. I did this, I had a 1911 I gave it to my nephew when he got out of boot camp. All legal. I never said anything about distant relative, where did you make that one up?...
[1] You might try quoting me in full. Whether or not a relative is a close relative has nothing to do with the issue.

[2] Whether a transaction is a straw purchase has nothing to do with the relationship of the participants and everything to do with intent.

Quote:
Originally Posted by markj
... a federal thing, a close relative can gift a gun to another close relative....
And a distant relative may as well. And so may someone who is not related. But the nature of the relationship can not turn a straw purchase into a gift.

Quote:
Originally Posted by markj
...Gee I have given a lot of guns to folks, all you need to do is a FFL transfer to the person you are giving the gun too....
You're a generous guy, but you apparently don't understand what a straw purchase is. I suggest that you read the ATF material.
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Old June 15, 2011, 04:50 PM   #36
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The original facts as laid out in the original post.....


Quote:
A friend and I were talking the other day (we both live in NY). He has a relative in North Carolina. He was visiting his relative when he walked into a gun store in NC, and found a pistol that he wanted. The store told him that since he was not a NC resident, they could not sell him the pistol (he has a NY pistol permit).

A day later, he brought his relative into the gun store to buy that pistol. His relative kept possession of the pistol in NC until he got back home and filed the appropriate paperwork to legally take possession of it in NY. When his NY pistol permit was amended and the pistol from NC was put on it, he had his relative send him the pistol through the proper FFL channels.

Is this a straw purchase??
The NY Guy wanted to buy a pistol in a North Carolina Firearms Store. Store informs NY guy he can not sell him the pistol because he is not a resident of NC . NY Guy is ineligible to buy pistol.

A day later NY Guy brings NC Relative into the store to buy the pistol for NY Guy. NC Relative purchases pistol NC Relative knows this so he buys pistol for NY Guy anyway and fills out 4473 stating he is the purchaser of the pistol. In fact his intent is to buy the pistol for NY Guy who is ineligible not for himself.
NC Relative is acting as a proxy for NY Guy in the pistol purchase.

From the Federal Firearms Regulations Guide from the ATF website.

Quote:
or is a resident of a State other than that in which the licensee's
business premises is located.Because of his or her disability, the person
uses a straw purchaser who is not prohibited from purchasing a firearm
from the licensee.
Quote:
In both instances, the straw purchaser violates Federal law by making false statements on Form 4473 to the licensee with respect to the identity of the actual purchaser of the firearm, as well as the actual purchaser's residence address and date of birth. The actual purchaser who utilized the straw purchaser to acquire a firearm has unlawfully aided and abetted or caused the making of the false statements. The licensee selling the firearm under these circumstances also violates Federal law
That purchase has straw purchase written all over it as it specifically is mentioned in the ATF regulations guide.

Any questions?

for the icing on the cake.... if your friend in the same state gives you some money to buy a gun for him even if he is able to legally purchase it himself.

Quote:
It is immaterial that the actual purchaser and the straw purchaser are residents of the State in which the licensee's business premises is located, are not prohibited from receiving or possessing firearms, and could have lawfully purchased firearms from the licensee.

Relationship has no bearing on making a gift of a firearm....


Quote:
Where a person purchases a firearm with the intent of making a gift of the firearm to another person, the person making the purchase is indeed the true purchaser. There is no straw purchaser in these instances. In the above example, if Mr. Jones had bought a firearm with his own money to give to Mr. Smith as a birthday present, Mr. Jones could lawfully have completed Form 4473. The use of gift certificates would also not fall within the category of straw purchases. The person redeeming the gift certificate would be the actual purchaser of the firearm and would be properly reflected as such in the dealer's records
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Old June 15, 2011, 08:27 PM   #37
Aguila Blanca
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And the original poster STILL has not come back to tell us whose money was used to make the purchase in North Carolina. IMHO that factoid doesn't make any difference in this case, but if the answer is what I expect it to be, it may convince some of those who think this might have been a legal transaction.

Last edited by Aguila Blanca; June 17, 2011 at 04:40 PM.
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Old June 16, 2011, 04:49 PM   #38
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Quote:
You're a generous guy, but you apparently don't understand what a straw purchase is. I suggest that you read the ATF material
I have given guns to many folks as a gift. No big deal. If my son wanted a gun he couldnt buy, I would buy it for him and give it to him. He is 8 now and has 2 guns already locked up in my safe.

My cousins are cops, I ran it by them and if the buyer while on the stand said he intended to gift the gun, no charges could be brought. It is all in the words used. If he said Ibought it for him cause he couldnt then he is in trouble. So did anyone ask the real person or do we judge folks on heresay alone?

Did he go to jail? Was he arrested? Is he a mexican cartel member? lol both had ccw, both could leagally own a gun. I see nothing wrong wit hit. Now if the guy was banned from ownership.. that is how Isee the intent of the law. Not to discriminate against lawful people.
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Old June 16, 2011, 07:57 PM   #39
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If you are buying the gun with the intent of it being a gift its fine....

if it is a straw purchase it is what it is.

Your opinion on what the intent of the law is going to be worth spit on a hot griddle to a prosecutor.

So what did your friend the ATF agent tell you? What did your friend the Federal Prosecutor tell you? Are you going to tell them that you cousins who are police officers told you it was ok to commit perjury under oath?

the facts are what they are.... I can guarantee you I would not want to play with ATF agents and a Federal Prosecutor because I was too lazy to do things the right way.

I can guarantee you that the Federal Prosecutor will have the guy from the gun store on the stand singing like a canary that he told NY Guy he was disqualified from buying the gun. Then the same clerk or the clerk who sold the NC Relative the gun will be singing like a canary on the witness stand. Forbid that the Federal Prosecutor comes up with a deposit to NC Relative that is about the same amount of a deposit as the gun purchased from a financial statement after NC Relative told them it was a gift. The prosecutor will give out plenty of rope.....before he takes up the slack.

So why risk all that over a gun purchase when you can take a few minutes extra and do it the right way?

You never know if the guy that made a questionable sale is going to get caught making another one and the prosecutor might ask him have you made any more that you know of?
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Old June 16, 2011, 10:28 PM   #40
Frank Ettin
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Quote:
Originally Posted by markj
I have given guns to many folks as a gift....
Yes, you may give a gun as a gift. But if in the course of a gun purchase you violate 18 USC 922(a)(6) when answering question 11a, it is a straw purchase, not a gift; and it is a violation of federal law as described in the ATF publication quoted in posts 17 and 18.

Quote:
Originally Posted by markj
...My cousins are cops, I ran it by them and if the buyer while on the stand said he intended to gift the gun, no charges could be brought....
[1] Local LEOs aren't necessarily experts on gun laws, especially laws related to transfer of firearms. And local LEOs very seldom are familiar with federal laws relating to the transfer of firearms.

[2] The fact that a defendant might say something on the witness stand does not mean that anyone has to believe him. Whatever he says may be challenged. And it has been known to happen that a defendant claims innocence on the witness stand; and the prosecution has nonetheless put on substantial evidence refuting the defendant's claim, convincing the jury beyond a reasonable doubt of the defendant's guilt and resulting in a verdict of guilty.

Quote:
Originally Posted by markj
...both could leagally own a gun. I see nothing wrong wit hit. Now if the guy was banned from ownership.. that is how Isee the intent of the law...
Whether you see anything wrong with this deal is irrelevant. How you see the intent of the law is also irrelevant.

Last edited by Frank Ettin; June 17, 2011 at 12:50 AM.
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Old June 17, 2011, 01:06 PM   #41
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fiddletown,

You have been charitable and patient in explaining the law here. Thank you. And I firmly second your remark about local law enforcement officers not being experts on federal gun laws. Heck, many of them are ignorant of state laws, as evidenced over the years by legal open carriers being proned out and arrested (Philadelphia, and Fairfax and Norfolk, Virginia leap to mind).

The original question isn't that difficult, folks. This is clearly a straw purchase. Nothing in the law absolves the NC relative of lying on the 4473 when he affirmed he is the "actual purchaser," a term of art, if you will, of the firearm. Unless he bought it with his own money (without reimbursement from the NY relative) and gave it gratis to the NY relative, then he lied on the 4473.

Case closed.

An unlikely case for prosecution, perhaps, but a violation of federal law, nonetheless.
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Old June 17, 2011, 04:46 PM   #42
Aguila Blanca
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Quote:
Originally Posted by markj
My cousins are cops, I ran it by them and if the buyer while on the stand said he intended to gift the gun, no charges could be brought. It is all in the words used. If he said Ibought it for him cause he couldnt then he is in trouble. So did anyone ask the real person or do we judge folks on heresay alone?
You ARE joking, right?

Hearsay? There is no hearsay involved. We have the original poster's statement as to exactly what happened.

As for your cousins, the cops: What kind of cops would advocate ANYONE committing perjury? Testifying in a court is sworn testimony. Making a false statement under oath is called "perjury," and that is a criminal offense all by itself.

Your cousins should resign and turn in their badges. If they would advise you to commit perjury, I have to assume that THEY would commit perjury, and there is no place in this country for cops who advocate and/or practice perjury.
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Old June 17, 2011, 05:10 PM   #43
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Quote:
You gave your friend the money to buy the gun for you
Assuming facts not in evidence. You have no way of knowing from this thread whose money was used.

I say NOT a straw purchase. There was no intent to deceive the government about who would ultimately own the pistol.

There was intent, followed by action as evidence of that intent, to use proper channels for the transfer of the pistol to it's eventual owner. The original purchaser did not transfer the gun to the present owner, an FFL did.

It was bought with the intent to transfer properly through an FFL. Not a straw purchase in either the letter or the spirit of the law.
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Old June 17, 2011, 06:26 PM   #44
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Quote:
There was no intent to deceive the government about who would ultimately own the pistol.
THERE SURE WAS. It was the signed statement on the original 4473 in NC.
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Old June 17, 2011, 07:00 PM   #45
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Are you the actual purchaser?

Yes.

This statement was made when the individual filling out the form was not the actual purchaser.

That is the crime.

If they had answered honestly the purchase wouldn't have been allowed even if they explained the ultimate intent to transfer through an FFL in NY. The dealer would have said they would be happy to ship it to a dealer in NY.


Let's look at the elements:

1. That the accused made a certain statement in connection with the purchase of a firearm.

2. That the statement was false in certain particulars.

3. That the accused then knew the statement to be so false

4. The statement was made with intent to deceive

If you prove the defendant knowingly lied you have essentially proven intent to deceive. People lie to deceive others and had the accused answered honestly on the 4473 the transfer would have been halted by the dealer. The intent of lying on the form is to allow the gun to be transferred.

Proving the present intent of the person who filled out the 4473 can be a challenge . But I think you could do it with circumstantial evidence in this case.

The dealer might remember seeing both parties in his shop.

I would also subpoena bank records.

Now if I were a prosecutor I wouldn't prosecute this case for several reasons none of which are an inability to carry the burden on the elements.
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Old June 18, 2011, 01:37 AM   #46
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He WAS the actual purchaser. Because he intended to transfer it through an FFL to another purchaser means he never intended to deceive the government about who owned the pistol, legally and in actuality. Last time I checked, you can't transfer a gun you don't own. He owned it, then transferred it through legal channels. It's not a straw purchase when you announce the new owner to the government each time it changes hands and a NICS check is completed.
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Old June 18, 2011, 01:58 AM   #47
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Quote:
Originally Posted by maestro pistolero
He WAS the actual purchaser. Because he intended to transfer it through an FFL to another purchaser means he never intended to deceive the government about who owned the pistol, legally and in actuality....
Nope, he was purchasing the gun on behalf of the relative in NY. In legal terms, he was buying the gun as the agent of the NY relative. As the OP stated in post 1 (emphasis added):
Quote:
Originally Posted by l98ster
...A friend ...was visiting his relative when he walked into a gunstore in NC, and found a pistol that he wanted. The store told him that since he was not a NC resident, they could not sell him the pistol (he has a NY pistol permit).

A day later, he brought his relative into the gunstore to buy that pistol. His relative kept posession of the pistol in NC until he got back home and filed the appropriate paperwork to legally take possesion of it in NY....
As described, the NC relative was buying the gun on behalf of the NY relative. The NC relatives purpose was facilitate the NY relative acquiring the gun. Everything the NC relative did was to accommodate the NY relative and further the NY relative's purpose of acquiring the gun. Again, see the ATF publication quoted in posts 17 and 18.

Were I prosecuting this case, I don't think I'd have much trouble getting a conviction.
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Old June 18, 2011, 02:13 AM   #48
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The problem I have with this, in general, is that

a) it is legal to buy a firearm as a gift for somebody who may legally own it, but

b) there is no block on the 4473's I've ever filled out for "purchasing as gift."

So how does one fill out the 4473, when the intent is to buy the gun as a gift? Answer no to question 11, and then put in an explanatory block somewhere on the form?

Or is there some other means of executing the lawful transaction, without causing problems with the 4473?
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Old June 18, 2011, 02:56 AM   #49
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Let me try to make the legal distinction between doing something on a someone's behalf and making a gift more clear.

[1] Say my wife and I are sitting around at home one day. I say to her, "I'd sure like a Coke. Would you mind running down to the store and picking me up a six-pack."

Then she says, "Sure, I don't mind at all."

She then goes out to the store and comes back a bit later with a six-pack of Coca-Cola.

[2] On another day, I'm sitting at home. My wife went out a bit earlier to pick up the dry cleaning.

She gets back and plops a six-pack of Coca-Cola on the table, saying, "I brought you a present."

There is a legal distinction between those two situations.

In the first, she is buying the Coke at my direction or request. She is, in legal terms, acting as my agent to buy the Coke on my behalf. When she bought the Coke she did so to fulfill my purpose and to further my explicit interest. I wanted the Coke, said so, and she went and got it for me.

In the second, she has acted on her own initiative to buy me a present. When she bought the Coke, she did so on her behalf to fulfill her purpose. She wanted to do something nice for me, unbidden by me, and purely as an act of generosity on her part.

Of course none of this matters, really, when talking about buying a soft drink.

But it matters a great deal if we're talking about guns.
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Old June 18, 2011, 03:25 AM   #50
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Even so, fiddletown, I'd still like to know what the procedure is, with regard to the 4473, to purchase a gift firearm?

What I've ended up doing, since I don't know how to fill out the form in such an instance, has been to order a gun, and have it sent directly to the appropriate FFL for the recipient. I haven't touched the 4473 in a gift purchase, as the only FFL transaction has occurred where the recipient has taken possession.

But say I were in a shop, and wanted to buy my lady a handgun. How should I fill out the form? It's not really clear on the form itself.
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