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Old March 9, 2014, 12:53 PM   #1
TomNJVA
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Identification documentation confusion in buying a handgun

I am finding a discrepancy between Federal law (BATFE) and State law (Virginia) regarding the identification documentation needed to purchase a firearm (handgun).

I own homes in two States (NJ and VA) and live part of the year in each State. Under 27 CFR 478.11 (page 39), I am a resident of Virginia while living in VA, and a resident of NJ while living in NJ, but I have an NJ driver's license. Since I am a dual resident, according to BATFE I can buy a handgun in any State using my NJ license provided I also have a government issued document showing my address in the State of purchase.

The following is from BATFE form 4473 for purchasing firearms:

"For example, if a U.S. citizen has two States of residence and is trying to buy a handgun in State X, he may provide a driver's license (showing his name, date of birth, and photograph) issued by State Y and another government-issued document (such as a tax document) from State X showing his residence address."

This conflicts, however, with the Code of Virginia, 18.2-308.2:2, which states:

"To establish personal identification and residence in Virginia for purposes of this section, a dealer must require any prospective purchaser to present one photo-identification form issued by a governmental agency of the Commonwealth or by the United States Department of Defense, and other documentation of residence." (emphasis added)

So, while BATFE says my NJ license is acceptable ID (when supplemented by proof of residency in VA), the State of Virginia requires that my photo ID must be issued by the Commonwealth of Virginia.

Can States add such additional restrictions to Federal law? In cases of such conflict, who prevails?

TomNJVA
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Old March 9, 2014, 03:57 PM   #2
Frank Ettin
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Quote:
Originally Posted by TomNJVA
...Can States add such additional restrictions to Federal law? In cases of such conflict, who prevails?
Often they can add such restrictions, and there's no easy answer as to which rule will prevail. That can often be a knotty problem for a court.

I'm afraid that federal preemption and choice of law (where the laws of multiple jurisdictions could be applicable) is a complex subject.

For example, if the particular issue addressed by the state law is also addressed by the federal law, there's the question of whether the particular federal law was intended to "occupy the field", i. e., be the final word on the subject. In that case the federal law preempts the state law and applies instead of the state law.

On the other hand, if a court decides that the federal law did not reflect an intent to occupy the field, in order to decide if federal law or state law applies a court will need to decide if the state law is consistent with a federal policy concern or would, on the other hand, frustrate the federal policy furthered by the law.

You could challenge the Virginia rule in court, but that would be expensive and not an automatic win. On the other hand, you might be able to get a Virginia ID card (if they offer one) without giving up your New Jersey DL. Or could yu get a Virginia CCW (and does it include a photo)?
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Old March 9, 2014, 04:10 PM   #3
Dreaming100Straight
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Listen to what Frank posted about seeing if you can get a VA Id card without giving up your NJ driver's license. Google the problem created by recent federal law prohibiting maintaining licenses in two states as a time. Think you can have a DL in one and an ID card in the other but not sure.
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Old March 9, 2014, 04:11 PM   #4
raimius
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Can you get a VA state ID (non-driver's license)?

I had a similar problem. I'm military, with a driver's license out of TX, stationed in MD, renting a place in VA. I am able to purchase rifles in VA, using my TX DL and car registration (2nd form), but I think going back to TX for any handgun purchases is the only way to go without involving lawyers to make sure I don't violate any federal/state laws.
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Old March 9, 2014, 04:26 PM   #5
Dreaming100Straight
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I should have added that different states have different rules. You may just want to call the state agency issuing DLs and IDs and ask if you can get either while keeping your NJ DL. They may even have an online form and, if they do, look and see if it asks about any in other states or says anything about the problem.
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Old March 9, 2014, 05:59 PM   #6
TomNJVA
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Thanks all! I did try to get a Virginia photo ID, but they said I must turn in my NJ license first. The VA DMV website says that adult ID cards are "Issued to an individual age 15 and above who does not hold a learner's permit or driver's license issued by any state within the United States." Not sure if this is a state or federal requirement.

The Virginia concealed carry permit does not have a photo, so I can't use it for my State issued photo ID.

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Old March 9, 2014, 10:06 PM   #7
Dreaming100Straight
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The problem that you are having stems from the The Real ID Act. See Sec. 202 (d) (6) requirement that a State shall, "Refuse to issue a driver's license or identification card to a person
holding a driver's license issued by another State without confirmation
that the person is terminating or has terminated the driver's license."

Different states apply the requirement differently. Some will let you get an ID card or DL if all you have is an ID card in another state and others will deny you either a DL or ID card.

I don't know that state law cannot be stricter than the Act, which provides minimum requirements.
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Old March 9, 2014, 11:44 PM   #8
Fishing_Cabin
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TomNJVA,

Is there any reason you are stuck with keeping your NJ license? Just curious...If you spend half your time in NJ, and half your time in Va, why not get your license in Va instead?

Last edited by Fishing_Cabin; March 10, 2014 at 04:08 AM.
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Old March 10, 2014, 09:56 AM   #9
TomNJVA
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I have thought of changing to VA residence and getting a VA DL, but I'm not sure what the effect will be on other residence related matters. For example, would I have to change the registration for my vehicles (VA charges an annual asset tax), change my health insurance (I'm retired and on private insurance), change my car insurance, pay taxes in both States, change my consulting contract so my income goes to VA, etc. I plan to call my insurance providers with these questions to see what is involved, and compare taxes.

I want to keep my NJ house for now as house prices are rising and my 94 year old Mom still lives in NJ.

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Old March 10, 2014, 11:59 AM   #10
wayneinFL
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Quote:
For example, if the particular issue addressed by the state law is also addressed by the federal law, there's the question of whether the particular federal law was intended to "occupy the field", i. e., be the final word on the subject. In that case the federal law preempts the state law and applies instead of the state law.
It seems to me it would be hard to argue this. If it were easy, California couldn't require a DROS in addition to the 4473 form. And a felon could own a muzzleloader in any state.
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