Difference between revisions of "Transferring firearms Interstate"

Revision as of 07:41, 13 February 2010

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.

Federal Law

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;

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.

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

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 12070

12070.  (a) No person shall sell, lease, or transfer firearms
unless he or she has been issued a license pursuant to Section
12071. 

and 12072(d)

(d) Where neither party to the transaction holds a dealer's
license issued pursuant to Section 12071, the parties to the
transaction shall complete the sale, loan, or transfer of that
firearm through a licensed firearms dealer pursuant to Section
12082.

Penal Code 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 is an exception for rifles and shotguns over 50 years old in California law - Penal Code 12078(t)(2) allows those purchases to proceed without using a FFL. If that is also the case in the state where one buys such an older gun, Federal Law 18 USC 922 (b)(3)(A) would be satisfied, so a dealer could sell such older long guns to a California buyer.

Interstate inheritance from anyone is exempt from (a)(3) -- California allows only immediate family members - grandparents, parents, children, grandchildren. Penal Code 12078(c)(1) and (c)(2)

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

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.