Transferring firearms Interstate
Transferring firearms interstate
Federal law has required interstate transfers to use FFLs since 1968. There are exceptions for Curio and Relic firearms for holders of the C&R FFL, and for inheritance.
Interstate transfer has almost nothing to do with where, geographically, a particular gun may be, and everything to do with the respective states of residence of the buyer and seller. If the buyer and seller live in different states, a gun transaction will be an interstate transfer.
California Intrafamilial Needs FFL
California allows Non-FFL transfers among certain family members, all of whom live within California. Federal law has nothing similar - an intrafamily transfer between residents of different states must use a FFL in the state of residence of the person receiving the gun.
Interstate transfer is governed by a combination of Federal and State laws. 18 USC 922 (a) makes it unlawful
(2) for any importer, manufacturer, dealer, or collector licensed under the provisions of this chapter to ship or transport in interstate or foreign commerce any firearm to any person other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, ... (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)(3) also regulates dealers
(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;
California DOJ is NOT a good source
Since California's Department of Justice is not charged with enforcing Federal law, ordinarily they fail to consider Federal law when discussing firearms transfers. Phone communication to CA-DOJ frequently omits the FFL requirement imposed by Federal law on interstate transfers.
An interstate intrafamilial transfer is NOT legally completed by filing the 'OPLAW' form; interstate transfer requires the CA FFL, by Federal law.
Code of Federal Regulations
A restatement and further interpretation of U S Code in this article is in Title 27, Part 478 of the Code of Federal Regulations:
- Sec. 478.29 Out-of-State acquisition of firearms by nonlicensees
- Sec. 478.29a Acquisition of firearms by nonresidents
- Sec. 478.30 Out-of-State disposition of firearms by nonlicensees
This part of CFR is authorized by USC, and is the law that BATFE uses.
Illegal for the DEALER
(a)(2) tells us a licensed dealer may ship interstate only to another licensed dealer. There is an exception for "returning a firearm or replacement firearm of the same kind and type to a person from whom it was received".
(b)(3) says dealers may not sell to buyers who do not live in the same state as the dealer's business, so in person sales are prohibited, as well as shipment to non-licensed individuals in other states.
Illegal for the private BUYER
(a)(3) tells us that unlicensed individuals may not go to a state where they do not live, buy a gun, take delivery of the gun, and bring it back to the state of residence.
Illegal for the private SELLER
(a)(5) tells us that unlicensed individuals may not sell a gun to unlicensed individuals who do not live in the same state as the seller.
Penalties for violation of (a)(2), (a)(3), and (a)(5) are the 'default' provisions of 18 USC 924 (a)(1)(D):
... whoever— ... (D) willfully violates any other provision of this chapter, shall be fined under this title, imprisoned not more than five years, or both.
Use an FFL
The effect of these: interstate transfers must go through a Federal Firearms Licensee (FFL) in the buyer's state of residence.
The Bureau of Alcohol, Firearms, Tobacco and Explosives (variously BATFE, BATF, ATF) says in its FAQ
A person not licensed under the GCA and not prohibited from acquiring firearms may purchase a firearm from an out-of-State source and obtain the firearm if an arrangement is made with a licensed dealer in the purchaser's State of residence for the purchaser to obtain the firearm from the dealer.
The fee an FFL may charge for an interstate transfer is entirely a business decision - neither Federal nor California law regulate the fee for that transaction.
Federal Exceptions, California complications
As noted above, return of a firearm from a dealer or manufacturer to the individual who sent the firearm is an exception.
BATFE says (restating part of (b)(3))
A person may only acquire a firearm within the person’s own State, except that he or she may purchase or otherwise acquire a rifle or shotgun, in person, at a licensee's premises in any State, provided the sale complies with State laws applicable in the State of sale and the State where the purchaser resides.
California residents are subject to Penal Code 26500 (was 12070)
26500. (a) No person shall sell, lease, or transfer firearms unless the person has been issued a license pursuant to Article 1 (commencing with Section 26700) and Article 2 (commencing with Section 26800) of Chapter 2. (b) Any person violating this article is guilty of a misdemeanor.
and 27545 (was 12072(d))
27545. Where neither party to the transaction holds a dealer's license issued pursuant to Sections 26700 to 26915, inclusive, the parties to the transaction shall complete the sale, loan, or transfer of that firearm through a licensed firearms dealer pursuant to Chapter 5 (commencing with Section 28050).
Penal Code 26700 and following (was 12071) is the California firearms dealer licensing requirement. Complying "with State laws" requires using a properly licensed California FFL.
The CA-DOJ FAQ is clear:
All firearms purchases and transfers, including private party transactions and sales at gun shows, must be made through a licensed dealer under the Dealer Record of Sale (DROS) process.
There was an exception in California law for rifles and shotguns over 50 years old in California law - Penal Code 27965 (was 12078(t)(2)) once allowed those purchases to proceed without using a FFL. The law was changed to eliminate that exception, effective Jan 1, 2014.
For inheritance, see link.
Note that Penal Code 12070(b) has several exceptions to the California FFL transfer requirement, including language as "Sales, deliveries, or transfers of firearms by persons who reside outside this state and are licensed outside this state pursuant to Chapter 44 ... of Title 18 of the United States Code" and none of those exempt unlicensed individuals. The Legislature knows how to make exceptions, and has not made any for unlicensed individuals.
Handguns brought or shipped interstate into California for sale must be on the Roster.
Private Party Transfers
Firearms brought or shipped interstate into California for sale cannot be transferred in a California Private Party Transfer for their first transfer; subsequent sales between California residents will not be interstate transfers. Dealers may charge a transfer fee different from the PPT fee.
Curios and Relics
Holders of a Federal Curio and Relic License ("Collectors" license) have further exemptions; see that article.