Difference between revisions of "Buying and selling firearms in California"
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=== One handgun per month ===
=== One handgun per month ===
With some exceptions for some licensed individuals (link later), one may purchase only one
With some exceptions for some licensed individuals (link later), one may purchase only one within any 30-day period.(Penal Code 12072(a)(9)(A))
=== Lock required ===
=== Lock required ===
Revision as of 04:17, 22 July 2008
- 1 Buying Firearms - Federal Law
- 2 Buying handguns from a California FFL
- 3 Buying rifles and shotguns from a California FFL
- 4 Buying from a Private Party - PPT
- 5 Locks, Safes, and Laws
Buying Firearms - Federal Law
All Federal Firearms Licensees - FFLs - are subject to Federal law as well as state and local laws.
Reference: The Law
Federal law governing firearms transfer and sales is primarily contained in Title 18 of United States Code, sections 921 through 930. (921-Definitions, 922-Unlawful Acts, 923-Licensing, 924-Penalties, especially 922, are generally the more important sections for individuals.)
Federal Law - 18 USC 922(d) and (g) - specifies acts which will disqualify a person from legally buying, owning or possessing a gun or ammunition. BATFE has a clear summary:
... a person who – (1) Has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year; (2) Is a fugitive from justice; (3) Is an unlawful user of or addicted to any controlled substance; (4) Has been adjudicated as a mental defective or has been committed to a mental institution; (5) Is an alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa; (6) Has been discharged from the Armed Forces under dishonorable conditions; (7) Having been a citizen of the United States, has renounced his or her citizenship; (8) Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner; or (9) Has been convicted of a misdemeanor crime of domestic violence cannot lawfully receive, possess, ship, or transport a firearm. A person who is under indictment or information for a crime punishable by imprisonment for a term exceeding 1 year cannot lawfully receive a firearm.
The disqualifying conditions are all in the questions asked on the Federal form 4473, Firearm Transaction Record. (A scanned image of the 2005 version of the 4473 is here).
Completing the form 4473 is the specified method for the dealer to obey 18 USC 923(g) record keeping requirements for firearms transfers.
Restoration of rights to own firearms is beyond the scope of this article.
Restrictions on Dealers
18 USC 922(b)
(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver— (1) any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age, and, if the firearm, or ammunition is other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age;
An FFL must not deliver a handgun to anyone younger than 21, nor a long gun to anyone under 18.
(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;
An FFL must also obey state laws.
(3) any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in ... the State in which the licensee’s place of business is located,...
An FFL must not deliver to unlicensed individuals who do not live in the same state as the FFL's business.
Buying handguns from a California FFL
California FFLs must obey Federal laws, such as documenting their sales with a Federal form 4473.
California FFLs must also obey California laws.
In addition to the Federal buyer disqualifications and age limits (21 years old for handguns and handgun ammunition), California has its own list of disqualifying acts in Penal Code 12021.
Dealer's Record of Sale (DROS)
FFLs must enter much of the same information required by the Federal 4473 into the California Dealer's Record of Sale system. Submission of the DROS information 'starts the clock' on the 10-day wait and initiates the buyer background check process.
California requires that dealers sell handguns on the Roster of Handguns Certified for Sale (Safe Handgun List article) unless the buyer qualifies for one of the exemptions. The DROS system enforces use of the Roster or allows entry of the exemptions.
Buyer documentation and gun handling
Satisfactory documentation shall include a utility bill from within the last three months, a residential lease, a property deed, or military permanent duty station orders indicating assignment within this state, or other evidence of residency as permitted by the Department of Justice.
and perform the demonstration specified in Penal Code 12071(b)(8)(D):
(D) Commencing January 1, 2003, except as authorized by the department, no firearms dealer may deliver a handgun unless the recipient performs a safe handling demonstration with that handgun. The demonstration shall commence with the handgun unloaded and locked with the firearm safety device with which it is required to be delivered, if applicable. While maintaining muzzle awareness, that is, the firearm is pointed in a safe direction, preferably down at the ground, and trigger discipline, that is, the trigger finger is outside of the trigger guard and along side of the handgun frame, at all times, the handgun recipient shall correctly and safely perform the following: (i) If the handgun is a semiautomatic pistol: (I) Remove the magazine. (II) Lock the slide back. If the model of firearm does not allow the slide to be locked back, pull the slide back, visually and physically check the chamber to ensure that it is clear. (III) Visually and physically inspect the chamber, to ensure that the handgun is unloaded. (IV) Remove the firearm safety device, if applicable. If the firearm safety device prevents any of the previous steps, remove the firearm safety device during the appropriate step. (V) Load one bright orange, red, or other readily identifiable dummy round into the magazine. If no readily identifiable dummy round is available, an empty cartridge casing with an empty primer pocket may be used. (VI) Insert the magazine into the magazine well of the firearm. (VII) Manipulate the slide release or pull back and release the slide. (VIII) Remove the magazine. (IX) Visually inspect the chamber to reveal that a round can be chambered with the magazine removed. (X) Lock the slide back to eject the bright orange, red, or other readily identifiable dummy round. If the handgun is of a model that does not allow the slide to be locked back, pull the slide back and physically check the chamber to ensure that the chamber is clear. If no readily identifiable dummy round is available, an empty cartridge casing with an empty primer pocket may be used. (XI) Apply the safety, if applicable. (XII) Apply the firearm safety device, if applicable. This requirement shall not apply to an Olympic competition pistol if no firearms safety device, other than a cable lock that the department has determined would damage the barrel of the pistol, has been approved for the pistol, and the pistol is either listed in paragraph (2) of subdivision (h) of Section 12132 or is subject to paragraph (3) of subdivision (h) of Section 12132. ... (G) The recipient shall perform the safe handling demonstration for a department-certified instructor.
Similar demonstration requirements exist for revolvers.
California requires that the dealer retain the handgun for 10 days - 10 24-hour periods - before delivery is allowed. (Penal Code 12071(b)(3)(A))
One handgun per month
With some exceptions for some licensed individuals (link later), one may purchase only one handgun within any 30-day period.(Penal Code 12072(a)(9)(A))
See link. Plan to buy a handgun which comes with a California-approved lock, or to buy a separate lock.
Buying rifles and shotguns from a California FFL
Buying from a Private Party - PPT
Private Party Transfers - PPT - are authorized by Penal Code 12082
12082. (a) A person shall complete any sale, loan, or transfer of a firearm through a person licensed pursuant to Section 12071 in accordance with this section in order to comply with subdivision (d) of Section 12072. The seller or transferor or the person loaning the firearm shall deliver the firearm to the dealer who shall retain possession of that firearm. The dealer shall then deliver the firearm to the purchaser or transferee or the person being loaned the firearm, if it is not prohibited, in accordance with subdivision (c) of Section 12072. If the dealer cannot legally deliver the firearm to the purchaser or transferee or the person being loaned the firearm, the dealer shall forthwith, without waiting for the conclusion of the waiting period described in Sections 12071 and 12072, return the firearm to the transferor or seller or the person loaning the firearm. The dealer shall not return the firearm to the seller or transferor or the person loaning the firearm when to do so would constitute a violation of subdivision (a) of Section 12072. If the dealer cannot legally return the firearm to the transferor or seller or the person loaning the firearm, then the dealer shall forthwith deliver the firearm to the sheriff of the county or the chief of police or other head of a municipal police department of any city or city and county who shall then dispose of the firearm in the manner provided by Sections 12028 and 12032. The purchaser or transferee or person being loaned the firearm may be required by the dealer to pay a fee not to exceed ten dollars ($10) per firearm, and no other fee may be charged by the dealer for a sale, loan, or transfer of a firearm conducted pursuant to this section, except for the applicable fee that the Department of Justice may charge pursuant to Section 12076. Nothing in these provisions shall prevent a dealer from charging a smaller fee. The fee that the department may charge is the fee that would be applicable pursuant to Section 12076, if the dealer was selling, transferring, or delivering a firearm to a purchaser or transferee or a person being loaned a firearm, without any other parties being involved in the transaction.
You must use a California FFL
12082 specifies a dealer licensed according to Penal Code 12071.
Both parties must be California residents
There are two reasons for this:
- If one party is not from California, the transfer becomes INTERSTATE and is governed by Federal Law (18 USC 922(a)(3) and (a)5))in addition to California Law and
- The Dealer Record of Sale software (DROS -- see page 40 in the .pdf) will accept only California or military identification documents.
This last would seem to apply only to the buyer - why then would the seller be subject to DROS? The dealer must be prepared for the buyer to fail the background check. If that were to occur, the dealer would have to attempt to convey the gun back to the seller - and that return requires a background check on the seller. To wit: Part of Penal Code 12082(a)
...If the dealer cannot legally deliver the firearm to the purchaser or transferee or the person being loaned the firearm, the dealer shall forthwith, without waiting for the conclusion of the waiting period described in Sections 12071 and 12072, return the firearm to the transferor or seller or the person loaning the firearm. The dealer shall not return the firearm to the seller or transferor or the person loaning the firearm when to do so would constitute a violation of subdivision (a) of Section 12072.
12072. (a) (1) No person, corporation, or firm shall knowingly supply, deliver, sell, or give possession or control of a firearm to any person within any of the classes prohibited by Section 12021 or 12021.1. (2) No person, corporation, or dealer shall sell, supply, deliver, or give possession or control of a firearm to any person whom he or she has cause to believe to be within any of the classes prohibited by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code.
To determine eligibility under 12072, the background check, initiated through the DROS system, must occur.
Standard dealer requirements apply
The buyer must submit all the necessary DROS information and wait the mandatory ten days before picking up the gun.
The buyer must have a firearms safety device for each gun. Penal Code 12088.1
12088.1. (a) All firearms sold or transferred in this state by a licensed firearms dealer, including private transfers through a dealer, and all firearms manufactured in this state, shall include or be accompanied by a firearms safety device that is listed on the Department of Justice's roster of approved firearms safety devices...
Standard handgun requirements apply
The buyer must have the Handgun Safety Certificate (Penal Code 12071(a)(8)(B))and perform the safe handling demonstration required by Penal Code 12071(a)(8)(D)
Handguns transferred through PPT are exempt from the Roster.
Locks, Safes, and Laws
There are two sets of laws to satisfy.
California law requires a firearms safety device with each gun delivered (Penal Code 12088.1). California law will accept many items to satisfy this requirement, and maintains a list, the Roster of Firearm Safety Devices Certified for Sale.
California will accept a gun lock, with conditions:
(e) The sale or transfer of a firearm shall be exempt from subdivision (a) if all of the following apply: (1) The purchaser or transferee purchases an approved safety device no more than 30 days prior to the day the purchaser or transferee takes possession of the firearm. (2) The purchaser or transferee presents the approved safety device to the firearms dealer when picking up the firearm. (3) The purchaser or transferee presents an original receipt to the firearms dealer which shows the date of purchase, the name, and the model number of the safety device. (4) The firearms dealer verifies that the requirements in (1) to (3), inclusive, have been satisfied. (5) The firearms dealer maintains a copy of the receipt along with the dealers' record of sales of firearms.
California will accept a gun safe as a firearms safety device (Penal Code 12088.1)
(d) The sale or transfer of a firearm shall be exempt from subdivision (a) if both of the following apply: (1) The purchaser or transferee owns a gun safe that meets the standards set forth in Section 12088.2. Gun safes shall not be required to be tested, and therefore may meet the standards without appearing on the Department of Justice roster. (2) The purchaser or transferee presents an original receipt for purchase of the gun safe, or other proof of purchase or ownership of the gun safe as authorized by the Attorney General, to the firearms dealer. The dealer shall maintain a copy of this receipt or proof of purchase with the dealers' record of sales of firearms.
HOWEVER, Federal Law has introduced a complication with handgun purchases.
18 USC 922(z) requires
(z) Secure Gun Storage or Safety Device.— (1) In general.— Except as provided under paragraph (2), it shall be unlawful for any licensed importer, licensed manufacturer, or licensed dealer to sell, deliver, or transfer any handgun to any person other than any person licensed under this chapter, unless the transferee is provided with a secure gun storage or safety device (as defined in section 921 (a)(34)) for that handgun.
and 18 USC 921(a)(34) has the definition
(34) The term “secure gun storage or safety device” means— (A) a device that, when installed on a firearm, is designed to prevent the firearm from being operated without first deactivating the device; (B) a device incorporated into the design of the firearm that is designed to prevent the operation of the firearm by anyone not having access to the device; or (C) a safe, gun safe, gun case, lock box, or other device that is designed to be or can be used to store a firearm and that is designed to be unlocked only by means of a key, a combination, or other similar means.
The Bureau of Alcohol, Tobacco, Firearms and Explosives has yet to issue a regulation which recognizes 18 USC 921(a)(34)(C).
In practice, that means that California and Federal law are different on what is acceptable -- and safe for dealers to accept. For long guns, California FFLs may accept the safe affidavit; for handguns, because BATFE has not yet ruled, the safe affidavit is usually NOT acceptable, and buyers may expect to purchase a gun lock with each handgun.