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Old October 18, 2013, 11:22 PM   #1
JMP
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Guns to California

Need some insight into California laws.

My brother recently moved to California from Wyoming and because he was unsure of the gun laws out there, he left everything with me. He wants them now (don't blame him) and asked me about shipping them to him. I told him I don't want to do anything illegal so he should talk to an FFL there to see what we would need to do. They are all bolt action rifles or pump shotguns and one semi auto shotgun. No pistols. I don't know what he can and can't have out there because of the strict gun laws there.

He texted me earlier and said he talked to an FFL that told him if I shipped them in pieces it would be fine. I told him that makes absolutely no sense and to find a different FFL pretty quick.

Any idea on how we can get his guns from Wyoming to California legally?
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Old October 19, 2013, 01:07 AM   #2
62coltnavy
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Really, he does need to go to a new ffl. The laws are simple. For long guns, he can bring anything and everything EXCEPT "assault weapons" (unless modified to comply with California law by eliminating "evil" features). No worries with bolt guns or shot guns. He is NOT required to register any of them--although there is a theoretical issue for guns brought here after January 1, 2014 that I am not clear on (new guns purchased will have to be registered after that date, not sure if the law applies to transfers). As to handguns, again not much of an issue--the only thing prohibited is mags of greater than 10 rounds capacity. Handguns DO have to be registered, via a form you fill out and file with the DOJ along with a $19 fee.
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Old October 19, 2013, 01:30 AM   #3
Frank Ettin
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Quote:
Originally Posted by JMP
...My brother recently moved to California from Wyoming and because he was unsure of the gun laws out there, he left everything with me. He wants them now (don't blame him) and asked me about shipping them to him....
This would be an interstate transfer under federal law. The federal law is about possession, not ownership. You now have possession, and you want to transfer possession to a resident of another State.

The legal way to effect the transfer would be for you to ship the guns to an FFL in California who would complete the transfer to your brother (complying with all the usual formalities). It's a hassle and an expense, but violation of the federal interstate transfer laws can get the transferor and transferee up to five years in federal prison and/or a fine (plus a bonus of a lifetime loss of gun rights). I can't imagine any shipping or FFL fees being more expensive than that.

Possession means:
Quote:
1 a : the act of having or taking into control...
Transfer is about possession, not ownership.

Some definitions of "transfer" (emphasis added):

Let's look at the statutes:
  1. 18 USC 922(a)(3), which provides in pertinent part (emphasis added) as follows:
    Quote:
    (a) It shall be unlawful—
    ...

    (3) for any person, ... to transport into or receive in the State where he resides ...any firearm purchased or otherwise obtained by such person outside that State,...
  2. And 18 USC 922(a)(5), which provides in pertinent part (emphasis added) as follows:
    Quote:
    (a) It shall be unlawful—
    ...

    (5) for any person ... to transfer, sell, trade, give, transport, or deliver any firearm to any person ...who the transferor knows or has reasonable cause to believe does not reside in ... the State in which the transferor resides..;
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Old October 19, 2013, 01:46 AM   #4
JMP
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Thanks guys, exactly what I was looking for. I'm not going to risk getting myself or him in trouble and I figured this is what would need to happen.

So if he came and got them and brought them himself to his new home, he'd be fine?

I don't think shipping them is going to be an option right now because of the expense but he may want to ship a couple for the time being.
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Old October 19, 2013, 01:53 AM   #5
Frank Ettin
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Quote:
Originally Posted by JMP
...So if he came and got them and brought them himself to his new home, he'd be fine?...
Not really. It's still a transfer from a resident of one State to a resident of another.
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Old October 19, 2013, 01:57 AM   #6
JMP
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So just to be completely clear, for him to get his guns we need to ship all of them through an FFL in California, correct?
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Old October 19, 2013, 01:57 AM   #7
maestro pistolero
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Quote:
So if he came and got them and brought them himself to his new home, he'd be fine?
Yes. He needs to drive them. He could also fly with
them in checked, declared luggage.
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Old October 19, 2013, 02:10 AM   #8
Frank Ettin
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Quote:
Originally Posted by maestro pistolero
Quote:
So if he came and got them and brought them himself to his new home, he'd be fine?
Yes. He needs to drive them. He could also fly with
them in checked, declared luggage.
How do you figure, based on the statutes I cited?
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Old October 19, 2013, 02:46 AM   #9
JimmyR
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Quote:
So just to be completely clear, for him to get his guns we need to ship all of them through an FFL in California, correct?
Maybe I am misreading, but another option would be if YOU drove the guns to CA, and transferred them to him via an FFL. Again, there is the expense of transferring each gun to him, which could mount up.

What he might want to consider, if the guns are fairly typical, would be to have you sell the guns (if private sales are legal in Wisconsin, and then send him the money.
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Old October 19, 2013, 09:54 AM   #10
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I've deleted a couple of posts. Frank Ettin, who is an attorney and knows the law in this area very well, has explained that under federal law, the transfer must go through a licensed dealer at one end or the other.

If you don't understand why, re-read the thread. Any more "advice" to break the law will have consequences.
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Old October 19, 2013, 10:10 AM   #11
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Frank, can you tell me a bit about the boundaries of "possession"?

For a hypothetical example, what if the brother in Wyoming had a safe at the California brother's home, to which the CA bro had no access? If the Wyoming bro left his guns in that safe, then could it be said that the CA bro was never able to take possession, since they were never under his control?

Another example: What if the CA bro never knew the guns were in his home? Can the CA bro be said to have ever had possession since he never knew they were in the home?

To be clear, I'm not questioning the recommendation to go through an FFL, just curious about the laws mentioned and how they might apply to some hypothetical edge cases. Thanks for any insights.
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Old October 19, 2013, 11:34 AM   #12
maestro pistolero
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Quote:
Quote:
Originally Posted by maestro pistolero
Quote:
So if he came and got them and brought them himself to his new home, he'd be fine?
Yes. He needs to drive them. He could also fly with
them in checked, declared luggage.
Quote:
How do you figure, based on the statutes I cited?
If he is not yet a resident of CA, and is merely storing his own firearms in WY, he can legally take POSSESSION of those firearms in WY, and then transport them to California, IMO.

Quote:
http://www.dmv.ca.gov/pubs/vctop/d01/vc516.htm

516. "Resident" means any person who manifests an intent to live or be located in this state on more than a temporary or transient basis. Presence in the state for six months or more in any 12-month period gives rise to a rebuttable presumption of residency.
For tax purposes:
Quote:
California Residency: Intent Not Enough to Change a Taxpayer's Residence
http://www.mofo.com/pubs/xpqPublicat...etail&pub=6792
For the purposes of college registration:

Quote:
Who Is a Resident?

If you are an adult student (at least 18 years of age), you may establish residence in California if

(1) You are a U.S. citizen.

(2) You are a permanent resident or other immigrant.

(3) You are a nonimmigrant who is not precluded from establishing a domicile in the U.S. This includes nonimmigrants who hold valid visas of the following types: A, E, G, H-1B, H-4, I, K, L, N, O-1, O-3, R, T, U, or V.

To establish residence you must be physically present in California for more than one year, and you must come here with the intent to make California your home as opposed to coming to this state to go to school. Physical presence within the state solely for educational purposes does not constitute the establishment of California residency, regardless of the length of stay. You must demonstrate your intention to make California your home by severing your residential ties with your former state of residence and establishing those ties with California. If your parents are not California residents, you are required to be financially independent in order to be a resident for tuition purposes. Your residence cannot be derived from your spouse, a registered domestic partner or a parent.
As it relates to firearms ownership per CAL DOJ:
http://oag.ca.gov/firearms/resprf

It is highly unlikely that retaking possession of own's own firearms, stored short-term with immediate family members, and later transporting them into one's new state of (pending?) residency would constitute an illegal interstate transfer.

I have never heard of such a case being brought. Have you?
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Old October 19, 2013, 11:52 AM   #13
JMP
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Quote:
What he might want to consider, if the guns are fairly typical, would be to have you sell the guns (if private sales are legal in Wisconsin (actually Wyoming), and then send him the money.
I think right now this is probably the best option.

Thank you everybody for answers to my questions. Right now I don't care how it should be or what we could probably get away with. I'm am not going to risk getting in trouble in any way, so thank you Vanya for clearing that up.

maestro, that last comment wasn't directed at you. I hadn't even thought about him not being a resident yet since he's only been there for a month and a half and he does still own a house here that is for sale, but I don't think right now he could afford to come get them.
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Old October 19, 2013, 12:10 PM   #14
Frank Ettin
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Vanya, thanks for jumping in while I've been otherwise engaged.

Quote:
Originally Posted by speedrrracer
Frank, can you tell me a bit about the boundaries of "possession"?
I'm really not going to start speculating and addressing issues outside the scope of the OP's question.

Quote:
Originally Posted by maestro pistolero
If he is not yet a resident of CA, and is merely storing his own firearms in WY, he can legally take POSSESSION of those firearms in WY, and then transport them to California, IMO...
The problem with your analysis is that you're relying on California law to determine residence. That's not appropriate here.

For the purposes of federal firearms transfer law, one's State of residence will be determined by federal law. And for such purposes "State of Residence" will be determined as follows (27 CFR 478.11):
Quote:
State of residence. The State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State. If an individual is on active duty as a member of the Armed Forces, the individual's State of residence is the State in which his or her permanent duty station is located. An alien who is legally in the United States shall be considered to be a resident of a State only if the alien is residing in the State and has resided in the State for a period of at least 90 days prior to the date of sale or delivery of a firearm. The following are examples that illustrate this definition:

Example 1.

A maintains a home in State X. A travels to State Y on a hunting, fishing, business, or other type of trip. A does not become a resident of State Y by reason of such trip.

Example 2.

A is a U.S. citizen and maintains a home in State X and a home in State Y. A resides in State X except for weekends or the summer months of the year and in State Y for the weekends or the summer months of the year. During the time that A actually resides in State X, A is a resident of State X, and during the time that A actually resides in State Y, A is a resident of State Y.

Example 3.

A, an alien, travels on vacation or on a business trip to State X. Regardless of the length of time A spends in State X, A does not have a State of residence in State X. This is because A does not have a home in State X at which he has resided for at least 90 days.
The OP said the the brother moved to California. That sure sounds like he moved there with the intention of making it his home, at least for a time. So for the purposes of federal firearms transfer law he became a California resident once he arrived in California.
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Old October 19, 2013, 04:14 PM   #15
g.willikers
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Am I missing something here?
Why are these guns considered to have been transferred from brother #1, the guy who moved to Cali, to brother #2, who still lives in Wyoming?
Aren't they just being temporarily stored there and still owned by brother #1?
Is this any different than if brother #1 had put them in a Wyoming storage facility, instead of with his brother?
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Old October 19, 2013, 05:07 PM   #16
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If the OP's brother had put them in a storage unit to which he alone had the key, they would still be in his possession. But the OP now has possession of them, because his brother "left everything with [him]."

There are two key points here: first, under federal law, the issue is who is in possession of the firearms, not who owns them. The OP is in possession of them. Second, his brother is now a resident of California, and that means that transferring them back to him is an interstate transfer, and must go through an FFL.

Federal law makes no distinction between this situation and buying a gun from a private party: if both parties are residents of the same state, no problem: you can make the sale directly, and no FFL has to be involved. But if you reside in different states, you must do the transfer through an FFL, regardless of whether the firearms are shipped or one of you travels to the other's state.

Frank's post #3 spells this out in detail.
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Old October 19, 2013, 05:09 PM   #17
maestro pistolero
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I know. It seems ridiculous. I don't question Frank's cites of the law and they do point to possession as the relevant factor rather than ownership.

Yet, I have never heard of a single instance, nor could I imagine a person relinquishing ownership (or rights to possess) his/her own firearms merely because they were temporarily and lawfully stored at another location. It just can't be. Certainly the intent of the law cannot be to deprive someone of the rights to their lawfully owned property without due process.
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Old October 19, 2013, 05:15 PM   #18
g.willikers
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So, if brother 1 had put his stuff in a foot locker, locked it and kept the key, and written his name on the outside, even if the locker was in his brother's house, he would still have retained possession?
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Old October 19, 2013, 06:50 PM   #19
Revoltella
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Does the brother still have his Wyoming driver's license? He still owns a home there.
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Old October 19, 2013, 10:28 PM   #20
Vanya
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Quote:
Originally Posted by Revoltella
Does the brother still have his Wyoming driver's license? He still owns a home there.
His driver's license is irrelevant, as is the fact that he owns a home in Wyoming. He's not living in it, even part-time, therefore he's not a resident of Wyoming. Frank Ettin quoted the relevant federal law:
Quote:
Originally Posted by (27 CFR 478.11) View Post
State of residence. The State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State.
<snip>
A is a U.S. citizen and maintains a home in State X and a home in State Y. A resides in State X except for weekends or the summer months of the year and in State Y for the weekends or the summer months of the year. During the time that A actually resides in State X, A is a resident of State X, and during the time that A actually resides in State Y, A is a resident of State Y. (Emphasis mine.)
Owning a home doesn't count unless one is actually living in it at least some of the time.
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Old October 19, 2013, 10:47 PM   #21
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Quote:
I know. It seems ridiculous. I don't question Frank's cites of the law and they do point to possession as the relevant factor rather than ownership.

Yet, I have never heard of a single instance, nor could I imagine a person relinquishing ownership (or rights to possess) his/her own firearms merely because they were temporarily and lawfully stored at another location. It just can't be. Certainly the intent of the law cannot be to deprive someone of the rights to their lawfully owned property without due process.
How does one distinguish what the OP says his brother did -
Quote:
My brother recently moved to California from Wyoming and because he was unsure of the gun laws out there, he left everything with me.
from a presumably legal instate transfer from one brother to another?

The answer is, on first approach, there is no observable difference.

To avoid the appearance of a transfer, the locked storage place, or even possibly the locked trunk path might have sufficed.
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The FAQ page is here.
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Old October 19, 2013, 11:05 PM   #22
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Quote:
Originally Posted by g.willikers
...Why are these guns considered to have been transferred from brother #1, the guy who moved to Cali, to brother #2, who still lives in Wyoming?...
Brother #2 had access to, actual physical possession and control of, and the opportunity to beneficially use the guns.

Note also that AFAIK under Wyoming law one resident may transfer a gun to another resident without formalities.

Quote:
Originally Posted by maestro pistolero
I know. It seems ridiculous. I don't question Frank's cites of the law and they do point to possession as the relevant factor rather than ownership....
I agree that it seems ridiculous. But without a solid judicial opinion ruling that the words of the statutes don't mean what seems to be their plain meaning, there's no good reason to believe that they not be understood by a court according to their plain meaning.

Quote:
Originally Posted by maestro pistolero
...Yet, I have never heard of a single instance, nor could I imagine a person relinquishing ownership (or rights to possess) his/her own firearms merely because they were temporarily and lawfully stored at another location. It just can't be....
Do you have any evidence of Congressional intent? And sometimes the application of a law has an effect not fully anticipated when the law was enacted.

Quote:
Originally Posted by maestro pistolero
...It just can't be....
Why not, based on controlling legal authority?

Quote:
Originally Posted by maestro pistolero
...Certainly the intent of the law cannot be to deprive someone of the rights to their lawfully owned property without due process.
Brother #1 is not being deprived of his property without due process. He transferred his property to someone else. He may get it back, but due to certain changed circumstances he must jump through some hoops.
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Old October 19, 2013, 11:45 PM   #23
Aguila Blanca
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Quote:
Originally Posted by Frank Ettin
Quote:
Originally Posted by JMP
...So if he came and got them and brought them himself to his new home, he'd be fine?...
Not really. It's still a transfer from a resident of one State to a resident of another.
Frank, just to close the loop on this:

I understand your point: The OP now has "possession" of the guns, in Wyoming, so to in any way return them to his brother in California is a "transfer."

But they are still the California brother's property. Yes, I understand that you made a distinction between "ownership" and "possession." My question is -- have they already broken the law by transferring possession to the OP? Or was that okay because they were then both residents of the same state? (Or were they?)
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Old October 19, 2013, 11:50 PM   #24
Frank Ettin
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Quote:
Originally Posted by Aguila Blanca
...My question is -- have they already broken the law by transferring possession to the OP? Or was that okay because they were then both residents of the same state? (Or were they?)
It's my impression from the OP that Brother #1 was still a resident of Wyoming at the time.
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Old October 19, 2013, 11:54 PM   #25
62coltnavy
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Since when does residence have anything to do with "possession"? He left his firearms with his brother for safekeeping, and his brother has possession merely as an agent, not as an owner. There is no law that states that if I lend you a firearm the transfer has to occur through an FFL, or that another ffl transfer has to occur when the firearm is returned. I read "transfer" as meaning transfer of ownership, and that has not occurred under the scenario presented--brother still claims to own the weapons. And Frank's literal interpretation would mean that if I move from state A, where I own firearms, I cannot take them with me when I mover to state B, and that is NOT the law. Nor is there anything in the law that says that merely because I move from state A to State B I have to take all of my property with me at the same time or forfeit my right to "possession" unless I make a "transfer" from myself to myself through an FFL.
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