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Old October 28, 2017, 06:26 PM   #1
Elmerjfudd
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Legal Question,

I live in NV, there is a fellow who lives in Utah that's willing to trade his portable generator for a long gun I own. Would that be legal? I don't want to break any laws! Neither he nor I have a FFL.
Thanks in advance!
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Old October 28, 2017, 06:56 PM   #2
Ruga Booga
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You have to send modern firearms through an FFL.
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Old October 28, 2017, 07:08 PM   #3
JohnKSa
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With only one exception (which does not apply in this case) legally transferring ownership of a firearm across state lines (from a resident of one state to a resident of another state) requires the services of an FFL.
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Old October 29, 2017, 12:04 AM   #4
Frank Ettin
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Quote:
Originally Posted by JohnKSa
... legally transferring ownership of a firearm across state lines (from a resident of one state to a resident of another state) requires the services of an FFL.
Well, not just ownership, but possession.
  1. Possession means:
    Quote:
    1 a : the act of having or taking into control...
  2. Transfer is about possession, not ownership.

    Some definitions of "transfer" (emphasis added):


Now let's look at federal law on interstate transfers --
  1. Under federal law, any transfer of a gun (with a few, narrow exceptions, e. g., by bequest under a will) from a resident of one State to a resident of another must be through an FFL. And a handgun must be transferred through an FFL in the transferee's State of residence. The transfer must comply with all the requirements of the State in which the transfer is being done as well as all federal formalities (e. g., completion of a 4473, etc.). There are no exceptions under the applicable federal laws for gifts, whether between relatives or otherwise, nor is there any exception for transactions between relatives.

  2. In the case of handguns, it must be an FFL in the transferee's State of residence. You may obtain a handgun in a State other than your State of residence, BUT it must be shipped by the transferor to an FFL in your State of residence to transfer the handgun to you.

  3. In the case of long guns, it may be any FFL as long as (1) the long gun is legal in the transferee's State of residence; and (2) the transfer complies with the laws of the State in which it takes place; and (3) the transfer complies with the law of the transferee's State of residence.C] In connection with the transfer of a long gun, some FFLs will not want to handle the transfer to a resident of another State, because they may be uncertain about the laws of that State. And if the transferee resides in some States (e. g., California), the laws of the State may be such that an out-of-state FFL will not be able to conduct a transfer that complies.

  4. There are no exceptions under the applicable federal laws for gifts, whether between relatives or otherwise, nor is there any exception for transactions between relatives.

  5. The relevant federal laws may be found at: 18 USC 922(a)(3); 18 USC 922(a)(5); and 18 USC 922(b)(3).

  6. Here's what the statutes say:
    Quote:
    18 U.S.C. 922. Unlawful acts

    (a) It shall be unlawful—
    ...

    (3) for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State, except that this paragraph
    (A) shall not preclude any person who lawfully acquires a firearm by bequest or intestate succession in a State other than his State of residence from transporting the firearm into or receiving it in that State, if it is lawful for such person to purchase or possess such firearm in that State,

    (B) shall not apply to the transportation or receipt of a firearm obtained in conformity with subsection (b)(3) of this section, and

    (C) shall not apply to the transportation of any firearm acquired in any State prior to the effective date of this chapter;
    ...

    (5) for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides; except that this paragraph shall not apply to
    (A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and

    (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;
    ....

    (b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver --
    ...

    (3) any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the licensee's place of business is located, except that this paragraph
    (A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee's place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States (and any licensed manufacturer, importer or dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States), and

    (B) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;
    ...
  7. Violation of these federal laws is punishable by up to five years in federal prison and/or a fine. It also results in a lifetime loss of gun rights.
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Old October 29, 2017, 12:59 AM   #5
Bill DeShivs
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There is no federal requirement to use an FFL on an in-state transfer of a handgun.
I realize that's not what you said, but it appears that is what you said.

However some STATES require using FFLs for in-state handgun transfers.
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Old October 29, 2017, 01:15 AM   #6
Frank Ettin
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Quote:
There is no federal requirement to use an FFL on an in-state transfer....
But that has nothing whatsoever to do with the subject of this thread.

The OP described a transfer of a gun from a resident of one State to a resident of another. That requires an FFL under federal law (since none of the exceptions appear to apply). Federal law requires the use of an FFL when the parties to a transfer are residents of different States even if they are together in one of those States (or a different State) and do the transfer fact-to-face (see 18 UASC 922(a)(5)).

So indeed federal does require the use of an FFL for an in-state transfer of a gun, whether a long gun or a handgun, if one party is a resident of one State, and the other party is a resident of another State.

Understand that comments which may have the appearance or effect of encouraging violation of the law will be not be tolerated.
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Old October 29, 2017, 12:41 PM   #7
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So, if I understand correctly, an in-state transfer only escapes the federal requirement to use an FFL when the parties to the transfer are both residents of that same state, and that state has no requirement of its own to the contrary. Does this also mean the transaction must take place inside the borders of that state? For example, suppose two residents of the same state meet at a deer camp in another state and agree upon a transaction involving one of the firearms they brought with them. Do they have to wait until they get home, or can they do it then and there?
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Old October 29, 2017, 02:50 PM   #8
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Quote:
Originally Posted by Unclenick
...suppose two residents of the same state meet at a deer camp in another state and agree upon a transaction involving one of the firearms they brought with them. Do they have to wait until they get home, or can they do it then and there?
They'd need wait to get home.

Doing the transaction in the other State results in the transferee violating federal law (18 USC 922(a)(3), emphasis added):
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,...
The transferor can also be prosecuted under 18 USC 2:
Quote:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
True, these are technical violations if both the State in which the deer camp is located and the State in which the parties live don't require formalities with a private firearms transaction. And one would think that a federal prosecutor would in the exercise of his prosecutorial discretion not bother with it. But discretion means discretion and can't necessarily be counted on.

It might also be different in the parties to the transaction lived in Oregon which now has universal background checks, and the deer camp was in Idaho, which doesn't. So the parties avoid a background check by not waiting until they get home to do the deal.
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Old October 29, 2017, 03:20 PM   #9
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Quote:
Originally Posted by Unclenick
So, if I understand correctly, an in-state transfer only escapes the federal requirement to use an FFL when the parties to the transfer are both residents of that same state, and that state has no requirement of its own to the contrary.
Technically correct, but I look at it the other way around. Rather than "there's a federal requirement that intrastate transfers escape," I see it as "a federal requirement that only arises when the transfer crosses state lines."
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Old October 29, 2017, 05:22 PM   #10
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I've a stupid question... after all, you can't waste a God given talent lest He'll likely take it away... and I'm really good at asking them.

If my father has in his possession a hand gun or two that I gave to him to use for home protection, and he moves from this state to another, that would be a violation of federal law?

If I were to once again take possession of them at some point after he's moved and bring them home, that would be a violation of federal law?
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Old October 29, 2017, 05:40 PM   #11
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Quote:
Originally Posted by turkeestalker
...If my father has in his possession a hand gun or two that I gave to him to use for home protection, and he moves from this state to another, that would be a violation of federal law?....
No --
  1. He lawfully (unless you violated the State's transfer laws or you were not also a resident of that State -- in which cases there are other problems) acquired possession of the guns in what was then his State of residence.

  2. He now takes his lawfully possessed guns to a new State which he intends to be his new State of residence.

  3. Note that whether or not he has legal title to the guns is irrelevant for the purposes of federal law. The Gun Control Act of 1968 is concerned with possession, not necessarily with ownership.

Quote:
Originally Posted by turkeestalker
...If I were to once again take possession of them at some point after he's moved and bring them home, that would be a violation of federal law?...
Yes. It would be a transfer [of possession] from a resident of one State to a resident of another. Since they are handguns the transfer would, under federal law, need to go through an FFL in your State of residence. Note that the Gun Control Act of 1968 provides for no exception for transfers between family members.
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Last edited by Frank Ettin; October 30, 2017 at 12:52 AM. Reason: correct typo
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Old October 29, 2017, 06:46 PM   #12
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Thank you Frank
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Old October 30, 2017, 10:34 PM   #13
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I am having trouble un-convulting here.

So say I buy a firearm in State "X", I then move to State "Y" and become a resident there.

I go back to visit family in State "X" bringing back said firearm. Can I then let someone possess it that is a resident of State "X"? (or someone from "Y" who came with me for that matter?)
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Old October 31, 2017, 12:16 AM   #14
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Quote:
Originally Posted by MTT TL
....So say I buy a firearm in State "X", I then move to State "Y" and become a resident there.

I go back to visit family in State "X" bringing back said firearm. Can I then let someone possess it that is a resident of State "X"? ......
In general, no -- at least not without doing a transfer through an FFL. There is, however, a narrow exception.
  • You may transfer it to someone in State "X" as a temporary loan for a lawful sporting purpose. See 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; except that this paragraph shall not apply to
    (A) the transfer, transportation, or delivery of a firearm made to carry out a bequest ..., and

    (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;
    ...
  • So under federal law a resident of one State may loan a gun to a resident of another State, but only temporarily and only for a lawful sporting purpose.

    • Temporary means:
      Quote:

      : continuing for a limited amount of time : not permanent

      : intended to be used for a limited amount of time
    • Sporting means (in this context):
      Quote:
      ...of, relating to, used, or suitable for sport...
    • Purpose means (in this context):
      Quote:
      : the reason why something is done or used : the aim or intention of something

  • So a court is likely to look at the "temporary loan for a lawful sporting purpose" exception to the prohibition on interstate transfers to apply when a gun is loaned so that the person it's been loaned to can engage in a specific sporting activity (i. e., a hunt, a competition, etc.) of limited duration. "Temporary" would refer to the duration of that activity. Such an interpretation would be consistent with the common meanings of the words used in the statutes and the underlying purpose (controlling interstate transfers of firearms) of GCA68......

Quote:
Originally Posted by MTT TL
...or someone from "Y" who came with me for that matter?...
Under GCA68 you may (but you must also consider the laws of State "X"). But he can't then bring it back to State "Y" without violating 18 USC 922(a)(3) (see post 8).

It's possible to construct bizarre hypotheticals around GCA68. However, the statutes say what they say, and courts will apply the statutes as written and as I've outlined unless there is legal authority leading to a different conclusion.
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Old October 31, 2017, 01:13 AM   #15
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Thanks. It's really not that bizarre. We go visit family all the time and often bring our new toys out to play with when we get there. I did not think we were breaking the law but you can never be too sure.
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Old October 31, 2017, 01:20 AM   #16
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By bizzare I was really thinking in terms of convoluted situations that could lead to strange or apparently unreasonable results.
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Old October 31, 2017, 06:17 AM   #17
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Quote:
Originally Posted by MTT TL
Thanks. It's really not that bizarre. We go visit family all the time and often bring our new toys out to play with when we get there. I did not think we were breaking the law but you can never be too sure.
Just don't forget to take state law into account.
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Old October 31, 2017, 10:58 PM   #18
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At the federal level, things have been covered. You might need to check state laws though. For example, WA state defines "transfer" VERY broadly, and requires a background check for each one (with potentially ridiculous results for innocent activities)...which is one reason so many of us object to "universal background checks"--sounds decent, but potentially criminalizes handing a gun to a friend to look at.
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Old November 3, 2017, 02:14 PM   #19
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Quote:
So a court is likely to look at the "temporary loan for a lawful sporting purpose" exception to the prohibition on interstate transfers to apply when a gun is loaned so that the person it's been loaned to can engage in a specific sporting activity (i. e., a hunt, a competition, etc.) of limited duration. "Temporary" would refer to the duration of that activity. Such an interpretation would be consistent with the common meanings of the words used in the statutes and the underlying purpose (controlling interstate transfers of firearms) of GCA68......
Suppose a person transfers a gun for exactly that reason - but subsequently, attitudes change and they decide they don't want it back etc. Is that legal?
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Old November 3, 2017, 04:16 PM   #20
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Quote:
Originally Posted by divil
Quote:
So a court is likely to look at the "temporary loan for a lawful sporting purpose" exception to the prohibition on interstate transfers to apply when a gun is loaned so that the person it's been loaned to can engage in a specific sporting activity (i. e., a hunt, a competition, etc.) of limited duration. "Temporary" would refer to the duration of that activity. Such an interpretation would be consistent with the common meanings of the words used in the statutes and the underlying purpose (controlling interstate transfers of firearms) of GCA68......
Suppose a person transfers a gun for exactly that reason - but subsequently, attitudes change and they decide they don't want it back etc. Is that legal?
Looks like federal prison for you and your buddy, plus the lifetime loss of gun rights. What might have started as a lawful temporary loan (if anyone believes you about your intent) becomes just a garden variety, unlawful transfer from a resident of one State to a resident of another.
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Old November 3, 2017, 04:18 PM   #21
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^^^Concur
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Old November 3, 2017, 04:34 PM   #22
divil
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Quote:
Looks like federal prison for you and your buddy, plus the lifetime loss of gun rights. What might have started as a lawful temporary loan (if anyone believes you about your intent) becomes just a garden variety, unlawful transfer from a resident of one State to a resident of another.
Not me - it's a hypothetical question

At what point would the crime have been committed though? It can't have been at the time the firearm was transferred, since that was a temporary loan. Can something I did in the past - that was legal at the time I did it - become a crime later? That doesn't sound right!
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Old November 3, 2017, 04:47 PM   #23
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Seems like it would be the moment the transfer ceased to be for "temporary use for lawful sporting purposes." So, the first time someone says, "Nah, just keep it" would likely be the point a law is clearly broken.
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Old November 3, 2017, 05:54 PM   #24
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Quote:
Originally Posted by divil
...Can something I did in the past - that was legal at the time I did it - become a crime later?....
But that's not what's happening here.
  1. Was handing the guy the gun in the first place legal?

    Well, you say it was a qualifying temporary loan. But considering what happened later, that might be a tough story for the U. S. Attorney/federal grand jury/judge/jury at your trial to swallow. Is there any evidence corroborating the spin you're trying to put on the deal?

    Bottom line is that no one has to believe you. People being investigated for criminal conduct make up all kinds of exculpating stories

  2. But taking the most charitable possible view of the story, there are really two acts.

    The first act was when you first handed your buddy your gun for what you now say was a loan satisfying the criteria necessary to make it legal.

    The second act was when the purpose for which the loan was made was fulfilled and you didn't take the gun back. This second act would be the crime.

    Let's say that there was no purpose for the loan, the fulfillment of which would be an identifiable event. In that case your prospects of selling the lawful loan story look pretty bleak.
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Old November 4, 2017, 09:16 AM   #25
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Sometime soon after the sporting event was over is probably when the law is broken. Maybe they would have to have the gun back to its original owner within a few days. Just my guess
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