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Old October 23, 2019, 07:03 PM   #1
Dan-O
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Academy

Not sure if anyone has seen or heard of this yet?

https://gatdaily.com/federal-governm...rland-springs/

As a Colorado resident, the 15 round mag limit is kinda funny and not a thing. The sheriff in my county refuses to enforce the mag ban. They sell full cap mags at most lgs.
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Old October 23, 2019, 08:14 PM   #2
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Pretty flimsy claim, as they cannot sell a firearm that is banned in the buyer's state if residence, but a magazine is not a firearm...so...
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Old October 23, 2019, 08:45 PM   #3
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I had two ARs shipped to CO and the sellers had probably forgotten to take out the standard magazines, either that or they sent me a pile of magazine parts to replace the worn out body, spring and follower in my existing grandfathered magazines. Never received a completed magazine though.
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Old October 23, 2019, 08:50 PM   #4
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If you are thinking, “Wow, that means every gun dealer has to know every law of their state and every other state when it comes to firearms.” you would be correct. A licensee is not solely responsible for assuring the legality of the sale for their own states [sic] rules, but those of the home state from the ID.
I believe this issue was raised and discussed very shortly after the shooting. It has been the law for a good many years.
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Old October 24, 2019, 02:10 AM   #5
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This argument brings up a point I can't answer, perhaps someone else can, IF, a state prohibits the sale of an item to residents of said state, IN THAT STATE, does that law ALSO prohibit possession of that item by a state resident when they are NOT in their state of residence???

The argument is being made, that since the magazine was not legal to be sold in CO, that the sale of the rifle, which included a non CO legal magazine to a CO resident was not legal.

BUT, they weren't in CO at the time of the sale they were in Texas, so here's my question, if your home state prohibits "high capacity" magazines, and the state you are physically in, at the time, does not, are you breaking another states law possessing the magazine when you are not physically in the state that prohibits it???

I can see where buying a prohibited mag outside of the prohibiting state and THEN brining it into the prohibiting state would be a crime. But is having it outside your home, (prohibiting) state borders a crime???

Does that mean that if your home state bans something, that you, as a resident of that state cannot possess it anywhere in the world???

SO, ok, the gun shop is required to know what is legal in TX, where they are, and they're required to know what is legal in the home state of an out of state resident, I get that. Here's my question, since the mag was legal in TX, (and NEVER went to CO, where it would be illegal) is it illegal for an out of state resident to buy/possess such an item in Texas??

Please correct me if I'm looking at this wrong, but it seems to me that the magazine possession was entirely legal in Texas, and a CO resident possessing it in Texas is not breaking CO law, while he is in Texas. And, therefore, IF the guy is not breaking CO law in Texas, and not breaking Texas law in Texas, then he's not breaking Federal law, while in Texas.

But if he left Texas and took the magazine to CO, then, he would be breaking CO law, and perhaps??? Fed law as well?? Or would it just be breaking only the CO law??
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Old October 24, 2019, 09:10 AM   #6
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Originally Posted by 44 AMP
This argument brings up a point I can't answer, perhaps someone else can, IF, a state prohibits the sale of an item to residents of said state, IN THAT STATE, does that law ALSO prohibit possession of that item by a state resident when they are NOT in their state of residence???
I am not a lawyer, but I'm pretty certain the answer to that is a resounding "No." No political entity can enforce its laws outside of its jurisdiction.

So it's a technicality. The Sutherland Springs shooter's purchase of that particular rifle was unlawful for the reason that it was sold with a 30-round magazine, which was illegal in his "home" state of Colorado. If he had purchased the exact same rifle under a SKU that included a 10-round magazine, the sale of the firearm would have been legal (aside for the "minor" technicality that he should have been on the NICS prohibited list but wasn't, of course). And if he had then subsequently driven down the road and purchased a carton of 30-round magazines in Texas, that also would not have been unlawful.

This is a legalistic prosecution that has a valid legal basis, but which is absolutely meaningless in terms of whether it could in any way have prevented the incident. Better would have been if the USAF had done its job and reported him to NICS, as they were required (but failed) to do.
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Old October 24, 2019, 11:01 AM   #7
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I was in Colorado last week. They have 30 round magazines on the shelf in LGS's but they do not appear new.

More disturbing was flying out.

When I flew in from my home state to check my gun it was normal where I tell the bag checker at the counter that I have gun, they look at the case to make sure it is TSA compliant then slap a TSA sticker on it and call it good.

On the way back I got hauled off to a special room where they Xrayed my bags and then opened up the case and inspected everything. It wasn't just me either. There was a line of people because they were doing everyone.
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Old October 24, 2019, 11:13 AM   #8
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I live in Colorado and have purchased rifles when traveling to visit relatives in Nevada. Never had an issue. Ive also bought lots of full size AR mags when in Nevada. Those just stay at my folks house for when i come train there.

No problems. The illegal part is bringing those mags (not the rifle) into Colorado
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Old October 24, 2019, 01:09 PM   #9
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So it's a technicality. The Sutherland Springs shooter's purchase of that particular rifle was unlawful for the reason that it was sold with a 30-round magazine, which was illegal in his "home" state of Colorado.
This is the point I am trying to understand. HOW is it unlawful in Texas if it is unlawful in Colorado, and you aren't in Colorado?

Leaving aside the other particulars in the case, for now, just looking at an "otherwise" completely legal purchase by anyone meeting the legal requirements to purchase.

If a 30 rnd mag is not legal to possess in Colorado, and you don't possess said 30rnd mag in Colorado, what Colorado law has been broken??

It seems the argument being made that the sale of the rifle, including the 30 rnd mag, in TEXAS was not legal because the buyer COULD take said rifle magazine to Colorado?

How is this not (at best) a Catch-22??

"We can't sell you X because while its legal here, its not legal in your home state" ??? You might take it to your home state where its not legal, so we can't sell it to you in our state where it is legal???

But, if they don't sell it to you, then you CAN'T take it to you home state (as you don't have it, because they wouldn't sell it to you), and if you don't take it to your home state, its not illegal.

This is more than slightly confusing to me.
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Old October 24, 2019, 01:38 PM   #10
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Originally Posted by 44 AMP
This is the point I am trying to understand. HOW is it unlawful in Texas if it is unlawful in Colorado, and you aren't in Colorado?

Leaving aside the other particulars in the case, for now, just looking at an "otherwise" completely legal purchase by anyone meeting the legal requirements to purchase.

If a 30 rnd mag is not legal to possess in Colorado, and you don't possess said 30rnd mag in Colorado, what Colorado law has been broken??

It seems the argument being made that the sale of the rifle, including the 30 rnd mag, in TEXAS was not legal because the buyer COULD take said rifle magazine to Colorado?
The following is my understanding of the answer to your question, but I am not an expert in arms regs.

The short answer is that this is a federal regulation, not an independently operating principle of state law. Since it is a fed reg, it doesn't have to make sense to you, or me, or anyone. It looks to me as if there were a state objection to the fed reg that an FFL can sell a long gun to a resident of a different state. The federal solution to that was the imposition of the restrictions of the buyer on transactions through any of its licensees.

In principle, a state's laws wouldn't apply to a residet's conduct while outside the state's borders. I would expect that child molestation is a crime in every state, but a disturbed fellow takes a vacation to Thailand and the same conduct isn't a crime prosecutable in his home state because that state has geographically limited jurisdiction.
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Old October 24, 2019, 01:54 PM   #11
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Originally Posted by 44 AMP
This is the point I am trying to understand. HOW is it unlawful in Texas if it is unlawful in Colorado, and you aren't in Colorado?
This is why I said it's a legality -- a seemingly very technical fine point of the law. But remember, I am not a lawyer.

As Zukiphile pointed out, it's the federal law that's in play here. Colorado law does not (usually) apply outside of Colorado. BUT ... federal law pertaining to firearms sales says that we can buy long guns in states other than our state of residence IF the sale complies with BOTH the laws of the state where the sale takes place, AND the laws of the buyer's state of residence.

So the sale had to comply with Colorado law.

Colorado law doesn't allow magazines with a capacity greater than 15 rounds. If the shooter had bought an AR-15 with a ten-round magazine, there would have been no violation. However, as I understand it, the rifle he bought came with a 20-round or 30-round magazine, and the SKU (product code) said so. So the problem wasn't the gun -- he could have bought the gun by itself without violating the law. And the problem wasn't the magazine -- as I posted above, in Texas he could have bought all the 30-round magazines in the world, as long as he didn't take them back to Colorado.

The problem was that he bought a specific rifle/magazine combination that was unlawful in Colorado, and which he could not have bought in Colorado.

Quote:
It seems the argument being made that the sale of the rifle, including the 30 rnd mag, in TEXAS was not legal because the buyer COULD take said rifle magazine to Colorado?
No. I think the issue is that he could not have bought that particular product SKU in Colorado, so the sale was therefore not legal in Texas. It had nothing to do with whether or not he could subsequently take the magazine to Colorado.
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Old October 24, 2019, 03:32 PM   #12
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Originally Posted by AB
The problem was that he bought a specific rifle/magazine combination that was unlawful in Colorado, and which he could not have bought in Colorado.
I disagree with the none of your explanation pertaining to the magazine and the product code.

There is a larger problem here pertaining to regulations as law. When the volume of the body of regulations that have the force of law exceeds the ability of normal people to comprehend them and a specialist is required to give the right answer, it no longer has the character of law. Ideally, the character of law should be a rule we all know about and with which we can comply without a lot of study. Laws against murdering people and against speeding have that character.

Here we have several people of above average intelligence who are generally interested in the topic, yet none of us address it with certainty. That is not ideal.
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Old October 25, 2019, 06:19 AM   #13
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Not a lawyer, but I would argue that the law says nothing about the accessories sold with the serialized firearm (the thing the law is regulating). The AR-15 (the firearm) is legal in both states.
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Old October 25, 2019, 06:29 AM   #14
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Not a lawyer, but I would argue that the law says nothing about the accessories sold with the serialized firearm (the thing the law is regulating). The AR-15 (the firearm) is legal in both states.
For the purpose of AB's analysis, a specific magazine is part of the SKU involved.

For a more broad analysis, I don't think any of us would consider our rights intact if we could have AR15, but no magazines. I wouldn't think of a magazine as a mere accessory, but a part of the rifle necessary to its correct function.
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Old October 25, 2019, 09:34 AM   #15
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Not a lawyer, but I would argue that the law says nothing about the accessories sold with the serialized firearm (the thing the law is regulating). The AR-15 (the firearm) is legal in both states.
As I have acknowledged, I am not a lawyer, either. I am passing along my layman's understanding of the technical/legalistic reason for the case against Academy. Since I live in one of the benighted states that has a magazine capacity limit, I can attest that firearms manufacturers do have "California-compliant" or "Massachusetts-compliant" models of some firearms for sale in states where normal capacity magazines are outlawed. Until this came up, it had not occurred to me that a double stack pistol shipping with a 10-round magazine instead of a 15- or 16- or 18-round magazine would probably have a separate SKU, but it makes perfect sense once you think about it. Inventories at the manufacturers (and probably at the distributors) are almost certainly computerized. The warehouse stock pickers aren't going to open each box to see if the magazine only holds 10 rounds when they fill an order for a mag-limited state. Those guns must have a separate SKU and bar code -- just as a stainless steel pistol will have a different SKU from the same pistol in blue or Cerrakote.

So that's the argument. How it will play out in court remains to be seen, and is worth watching. The fundamental fact, though, is that the federal law says what it says. The fact that some sheriffs in Colorado aren't enforcing the state law, and that some gun shops in Colorado are ignoring the law, doesn't invalidate the law. If the Colorado law is on the books, then that's what applies when viewing the federal law that out-of-home-state sales on long guns must comply with the laws of the state of sale AND the laws of the buyer's state of residence.

Would it have made a difference? Of course not. The shooter clearly had multiple magazines, but only one came with the firearm. As I posted previously, if he had bought the rifle with a 10-round magazine (and matching SKU), the federal law would not have been violated. If he had then gone down the road (or come back to the same Academy store the next day) and bought a case of 30-round magazines ... he was in Texas, and no laws would have been violated. So the legality of the sale of the gun is a very technical point that has no real world importance ... except that it may give the families of the victims access to Academy's insurance company.
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Old October 25, 2019, 07:22 PM   #16
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So the government can make a simple mistake such as not entering this guy's felony conviction, bad conduct or dishonorable discharge and his time served in jail in some database and that is ok... the government can admit to it, but it's not like they care. But some guy who sells a rifle with a 30rd mag instead of the CO compliant, and it is ok to pin all the murders on the guy behind the counter? I hope they have a reasonable jury in this case.
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Old October 25, 2019, 08:15 PM   #17
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^^^ Pretty much. The way courts work these days (and have for several decades) is to allow plaintiffs to sue everybody, hoping to hit at least one defendant with deep pockets.

Back in the early 1980s I was an expert witness in a lawsuit that arose out of construction defects in a mid-rise condominium structure. The owners' association sued the architects, the engineers, the developer, the general contractor, and (IIRC) some of the subcontractors. When the case was called in the morning, the first thing the judge did was to poll each defendant to ask if their respective insurance companies were in court. Most said "Yes," and a couple said "No." The judge immediately recessed until 1:00 p.m., with the instruction that ALL the defendants would have their insurance company representatives in court at that time.

The implication is obvious: The judge wasn't interested in determing who was actually at fault, he was only interested in figuring out who was in a position to pay some money to the plaintiffs. That's what will happen here. The shooter -- they only guy really responsible -- is dead and had next to no assets. So the victims and their families sued the government in a civil lawsuit (this isn't a criminal case), and the government is shirking responsibility based on a finely-nuanced legal technicality.

As zukiphile posted:

Quote:
Since it is a fed reg, it doesn't have to make sense to you, or me, or anyone.
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Old October 25, 2019, 09:02 PM   #18
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Originally Posted by Aguila Blanca View Post
^^^ Pretty much. The way courts work these days (and have for several decades) is to allow plaintiffs to sue everybody, hoping to hit at least one defendant with deep pockets.

Back in the early 1980s I was an expert witness in a lawsuit that arose out of construction defects in a mid-rise condominium structure. The owners' association sued the architects, the engineers, the developer, the general contractor, and (IIRC) some of the subcontractors. When the case was called in the morning, the first thing the judge did was to poll each defendant to ask if their respective insurance companies were in court. Most said "Yes," and a couple said "No." The judge immediately recessed until 1:00 p.m., with the instruction that ALL the defendants would have their insurance company representatives in court at that time.

The implication is obvious: The judge wasn't interested in determing who was actually at fault, he was only interested in figuring out who was in a position to pay some money to the plaintiffs. That's what will happen here. The shooter -- they only guy really responsible -- is dead and had next to no assets. So the victims and their families sued the government in a civil lawsuit (this isn't a criminal case), and the government is shirking responsibility based on a finely-nuanced legal technicality.

As zukiphile posted:
Yeah, normally I would not be so shocked, since litigation is like a year round sport in the USA these days. But the failures of the AF or whatever entity is responsible for entering it in the NICS database seems like that should be the sole focus. I could see if the salesperson was just being lazy and I could see it as something that was just innocently overlooked. Hopefully other gun stores learn from Academy's mistake.
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Old October 25, 2019, 11:37 PM   #19
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Pretty much. The way courts work these days (and have for several decades) is to allow plaintiffs to sue everybody, hoping to hit at least one defendant with deep pockets.
And I believe we are worse off, as a nation and a society because of that.

Back in the 80s I remember seeing some show that included an interview with a guy who had a company that made magnetos for light aircraft engines.

He told the interviewer that when ever a plane with one of his parts in it crashes, he gets sued. Doesn't matter WHY the plane crashed, he still gets sued. And he has to have a lawyer respond in court (which costs) even in cases where his part clearly had nothing to do with the cause of the crash.

He then picked up a device from a shelf and said, "see this? this is an improved magneto. We don't make it, our lawyers won't let us, because doing so would be a "de facto" admission in court that our previous product wasn't good enough". or words very close to that...

his point was that making an improved product would actually force him out of business due to lawsuits claiming his previous product was "defective".

Yes, I think the Academy suit is a matter of the govt. cheaping out, and trying to force the seller to pay for the govt's mistake.
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Old October 27, 2019, 01:27 PM   #20
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Reply to 44AMP

44AMP and Fellow Gunners:
I am a lawyer. I also live in a restrictive state (Washington) trying to out-do California and New York for restrictive gun laws. Beware the Bloomburg-funded anti-gun initiative.

The Full Faith and Credit clause of the Constitution requires each state to give "full faith and credit" to the laws of another state. If you are married in Colorado, you are married everywhere in the U.S. Thus, if you buy an extended magazine in Texas, where under Texas law it is legal to sell, buy, and possess the magazine, you are not violating the law of Colorado. Colorado must give full faith and credit to Texas' laws that do not conflict with Colorado's laws.
Colorado's prohibitive law applies in Colorado, but does not extend to a citizen of Colorado who is in Texas at the time. A state's enforcement of it's laws extends to its borders. However, (there is always a "however" in law) if you attempt to bring an illegal magazine into a state which prohibits the magazine, even if legal where purchased, that is not a defense to the laws of the receiving state. You may expect to have the magazine confiscated and perhaps be prosecuted for possession of an illegal magazine.
Thus, under our Republic, each state is free to enact the laws it sees fit to apply within its own state boundaries, and must generally allow other states to do as they see fit. But a state is not required to allow conduct that is legal in another state within the state's borders. Example: Possession and use of recreational amounts of marijuana is legal in Colorado, but not in Texas. So don't take your pot from Colorado to Texas.
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Old October 27, 2019, 02:24 PM   #21
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That's pretty much the way I understood it, thanks GAD.

If I'm getting it right, it seems that the GOVT is saying that since the rifle was sold with a nonCO compliant mag that sale violated the Federal requirement for sales to comply with both the state laws where sold and where the buyer resides. And, therefore was an illegal sale, which therefore makes Academy responsible for what the killer did with the rifle.

That argument completely ignores the fact that the store did the required Fed background check and the government APPROVED THE SALE, to someone who should have been a prohibited person.

As I see it, had the govt not screwed up, and approved the sale, Academy would not, and could not have made the sale, with or without a non-CO compliant magazine as part of the sale.

Seems like the Govt is saying "our screw up telling you it was ok to sell a gun to that guy doesn't matter, YOU have to pay the damages for what he did, because you included a non-CO compliant magazine..."

I think that argument is on pretty thin ice, and one MORE drop of chicken spit would crack it to pieces...

On the other hand, I'm not making the ruling, and I'm not on the jury, so I'm not holding my breath waiting for common sense to prevail.
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Old October 27, 2019, 03:12 PM   #22
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I am also a lawyer and would love to see a case holding that the Full Faith and Credit Clause is implicated where a seller in state A sells a product legal in state A to a resident of state B while physically in state A. That is different than selling a product regulated by federal law. In the Academy case, if 18 U.S.C. 922(b)(3) it is not unlawful under the statue for the resident of state B to buy over the counter in state A. It is unlawful for the buyer to bring it into state B. I have not looked at the reg but would seriously doubt the constitutionality of it if it purports to go beyond the statute.

Note: corrected two posts down.

Last edited by KyJim; October 27, 2019 at 07:05 PM.
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Old October 27, 2019, 03:59 PM   #23
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I think you're overlooking something, KyJim:

Quote:
Originally Posted by 18 U.S.C. 922
(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver—
...
(2) any firearm to any person in any State where the purchase or possession by such person of such firearm would be in violation of any State law or any published ordinance applicable at the place of sale, delivery or other disposition, unless the licensee knows or has reasonable cause to believe that the purchase or possession would not be in violation of such State law or such published ordinance;
(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;
It's not as simple as just the buyer in Texas isn't allowed to take the gun back to Colorado. The law clearly says that the sale must comply with the laws of both states. And what's going to hamstring Academy is that the law also specifically says that the dealer "is presumed" to to have had actual knowledge of the State laws and published ordinances of both States.

This is not a full faith and credit issue, nor is it an issue of Colorado trying to enforce their laws outside of Colorado. This is the federal government, presumably under the authority of the interstate commerce clause, requiring that the Colorado law applies in Texas.
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Old October 27, 2019, 07:04 PM   #24
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AB-- You are absolutely correct. I made a rookie mistake and looked quickly on my iPhone at one section and not the entire statute. That said, it is not illegal because of the Full Faith and Credit Clause. It is illegal under the statute which is authorized under the Commerce Clause.
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