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FABIO GETS GOOSED!!!
10-21-2010, 2:28 PM
What is the authority that a firearm must be physically present at a gun show (e.g., for inspection by the seller and buyer to insure correct documentation of the serial number, make, model, and caliber) in order to be sold? I bought a revolver recently at Turners and looked at a display model, but the revolver I actually purchased was not physically present when I made the purchase. Is it different when you purchase a firearm at a gunshow?

ke6guj
10-21-2010, 2:32 PM
I don't see why the actual firearm you want to purchase must be physically there, as long as they have the serial number so that they can start the DROS. And if they don't have the serial number, I think they could probably even do a delayed DROS where they enter your info and then when they get back to the shop and have the serial number handy, they enter that into the system and start the DROS then.

the_quark
10-21-2010, 2:42 PM
I believe it's a Federal requirement, and not limited to gun shows, but lemme look around.

trashman
10-21-2010, 2:44 PM
Chances are Turners was able to obtain the serial # for DROS from the distributor.

I don't have the statutes handy, but I think it's a California requirement to have the serial number present for DROS.

--Neill

the_quark
10-21-2010, 2:47 PM
At the very least the Federal Form 4473 requires the make, model, serial number and caliber of the firearm(s) being purchased, and is signed by both parties (I think under penalty of perjury). So, it would be...unwise to fill that document out without physically inspecting the firearms, first.

bwiese
10-21-2010, 2:49 PM
I admit I'm a little uncomfortable if FFLs DROS/4473 a gun while it's "in flight". I'd also hate to see what happens in the midst of an audit with a transcription error.

If Turner's/Reseda has a gun in its back room that a customer at Turner's/Signal Hill wants to buy, seeing only worn exemplar in the display case, I don't see any issue there.

ke6guj
10-21-2010, 2:51 PM
Chances are Turners was able to obtain the serial # for DROS from the distributor.

I don't have the statutes handy, but I think it's a California requirement to have the serial number present for DROS.

--Neill
Turners often has backstock inventory in the central warehouse (or a stock transfer from one of the other stores) that they can start the DROS on once they have the serial number,.



At the very least the Federal Form 4473 requires the make, model, serial number and caliber of the firearm(s) being purchased, and is signed by both parties (I think under penalty of perjury). So, it would be...unwise to fill that document out without physically inspecting the firearms, first.

Correct, but when you initially sign the 4473, the firearm's info isn't required at that point to be on the 4473. Usually when I come back after 10-days is when that info is filled in. When you do the final signature is when that info needs to be there AFAIK.

FABIO GETS GOOSED!!!
10-21-2010, 3:00 PM
Thanks for the responses eveyone.

At the very least the Federal Form 4473 requires the make, model, serial number and caliber of the firearm(s) being purchased, and is signed by both parties (I think under penalty of perjury). So, it would be...unwise to fill that document out without physically inspecting the firearms, first.

Looks like the make, model, serial number and caliber info is in Section D, which the seller fills out and signs under penalty of perjury. The buyer's signature is signed under penalty of perjury only as to the truth, correctness, etc. of Section A of the form, which doesn't include the descriptive info on the firearm. The form assumes Section D is completed by the seller after the transfer of the firearm to the buyer.

Anyways so far I'm not seeing a legal requirement that a firearm be physically present when it's sold at a gun show...wondering if there is any statute or regulation that is definitive on this.

ke6guj
10-21-2010, 3:04 PM
Thanks for the responses eveyone.



Looks like the make, model, serial number and caliber info is in Section D, which the seller fills out and signs under penalty of perjury. The buyer's signature is signed under penalty of perjury only as to the truth, correctness, etc. of Section A of the form, which doesn't include the descriptive info on the firearm. The form assumes Section D is completed by the seller after the transfer of the firearm to the buyer.exactly, the 4473 is not finally signed until after the transfer is done.

Anyways so far I'm not seeing a legal requirement that a firearm be physically present when it's sold at a gun show...wondering if there is any statute or regulation that is definitive on this.where are you coming up with the idea that it must be physically present when sold at a gun show? does this have to do with the Nordyke case?

FABIO GETS GOOSED!!!
10-21-2010, 3:21 PM
where are you coming up with the idea that it must be physically present when sold at a gun show? does this have to do with the Nordyke case?

Yes, it's from the "record" in the Nordyke case i.e. the joint statement of undisputed facts submitted in the district court in connection with Alameda County's summary judgment motion on the non-2A claims. It's listed as an "undisputed fact," subject to Alameda's "question of law" objection. I'm remembering some mention in some brief or decision or argument somewhere in Nordyke that the plaintiffs didn't or wouldn't take the county up on a request to submit a plan for a gun show that did not involve the physical presence of guns, but I may be totally off on that. Also, in their August '10 brief the plaintiffs emphasized the county's supposed "concession" about guns needing to be physically present to be sold at gun shows then trashed the county for "cognitive dissonance" and for making the "fantastic claim" that guns could still be sold at gunshows at the fairgrounds even if guns are not physically present. If there isn't some law specifically on point it's looking like Alameda has the better argument here.

Peter.Steele
10-21-2010, 4:12 PM
Also, in their August '10 brief the plaintiffs emphasized the county's supposed "concession" about guns needing to be physically present to be sold at gun shows then trashed the county for "cognitive dissonance" and for making the "fantastic claim" that guns could still be sold at gunshows at the fairgrounds even if guns are not physically present. If there isn't some law specifically on point it's looking like Alameda has the better argument here.


It's somewhat akin to the "fantastic claim" that you can effectively run a car dealership, selling cars, without having examples for customers to look at and test drive!

My god! The audacity of shopkeepers, wanting to have wares available for customers to handle and examine before laying out a large chunk of their hard-earned money! Can you believe it?!?!?!!

I think that every business should have to run this way! I don't want to actually examine and hand-select each piece of lumber that I buy at Lowes! I want to look at pictures of a stack of 2x4's and say YES! THAT'S WHAT I WANT! I want to go to Wal Mart and see a picture of a pair of shoes and say YES! THAT'S THE PAIR I WANT!

Alameda County doesn't go far enough! They should require that ALL businesses operate that way! Especially those damned car dealerships! Do you know how many people cars kill each year?!?!?!?!
:sleeping:

Lex Arma
10-21-2010, 4:20 PM
Yes, it's from the "record" in the Nordyke case i.e. the joint statement of undisputed facts submitted in the district court in connection with Alameda County's summary judgment motion on the non-2A claims. It's listed as an "undisputed fact," subject to Alameda's "question of law" objection. I'm remembering some mention in some brief or decision or argument somewhere in Nordyke that the plaintiffs didn't or wouldn't take the county up on a request to submit a plan for a gun show that did not involve the physical presence of guns, but I may be totally off on that. Also, in their August '10 brief the plaintiffs emphasized the county's supposed "concession" about guns needing to be physically present to be sold at gun shows then trashed the county for "cognitive dissonance" and for making the "fantastic claim" that guns could still be sold at gunshows at the fairgrounds even if guns are not physically present. If there isn't some law specifically on point it's looking like Alameda has the better argument here.

Penal Code s 12072(a)(8)(A)& (B) requires that hand gun transfers, to be lawful, must bear the manufacturer, make, model and serial number of the firearm. How are you going to do that without looking at the gun at the time of sale?

See also 12094 making it a crime to purchase, sell or possess firearm with altered or removed serial number. How can you comply if the gun is not present for the initial sale?

These inspections must occur at the time of sale as defined by the statute, waiting for delivery is too late.

Nor is it possible to complete a sale of a handgun (i.e., deliver the gun) unless the dealer and the buyer comply with 12071(b)(8)(A) - (J), which means using the gun that is being purchased to demonstrate competence with the firearm.

FABIO GETS GOOSED!!!
10-21-2010, 5:46 PM
Penal Code s 12072(a)(8)(A)& (B) requires that hand gun transfers, to be lawful, must bear the manufacturer, make, model and serial number of the firearm. How are you going to do that without looking at the gun at the time of sale?

Sections 12072(a)(8)(A) and (B) are not gun show specific, right? In other words these are the same requirements that apply to storefront FFLs.

I think the the question has been answered in the responses above. You can go to a gun store and purchase a gun without seeing or handling the actual gun you are purchasing. You wait ten days, and then you pick up the gun, do the gun handling test, etc.

In my case, in the Turners handgun transaction I mentioned (and in at least two other handgun transactions I remember, one at Turners, one at a dealer in Torrance), I paid for a gun and filled out "Section A" of form 4473. Ten days or more later I picked up a gun. It was the make, model, caliber that I had purchased but had not seen or handled before, and it bore all the required markings. When I picked it up, I signed "Part C" of form 4473, which applies when the transfer of the gun happens later than than the signing of Section A by the buyer. Then, presumably, the seller filled out Section D with the make, model, caliber, and serial number of the particular gun I picked up.

This was not an unlawful transaction. There was no purchase, sale, or possession of a firearm with an altered or removed serial number. The handgun bore the manufacturer, make, model and serial number. No crime was committed.

The critical point here is that, unless there is a special rule that nobody has mentioned, handguns do not need to be physically present to be sold at a gun show. You can buy a gun at a gun show without seeing or handling it, then go to the dealer 10 days later somewhere else to pick it up, sign Section C, do the gun handling demonstration with the specific gun you have purchased (which only needs to be done prior to delivery, not necessarily at the same time you pay for it).

uyoga
10-21-2010, 6:05 PM
While "in theory" a new gun purchase could conceivably be effected without seeing or "touching" the gun, in practice, I think most, if not all of the members of this forum would have a hard time purchasing a used gun without first "fondling" it.

I do not have "hard" statistics on the ratio of used to new guns sold at gun shows, but even at a 50 - 50 split, would there be a lot of used guns purchased before "fondling"? I don't think so.

Lex Arma
10-21-2010, 6:32 PM
Sections 12072(a)(8)(A) and (B) are not gun show specific, right? In other words these are the same requirements that apply to storefront FFLs.

I think the the question has been answered in the responses above. You can go to a gun store and purchase a gun without seeing or handling the actual gun you are purchasing. You wait ten days, and then you pick up the gun, do the gun handling test, etc.

In my case, in the Turners handgun transaction I mentioned (and in at least two other handgun transactions I remember, one at Turners, one at a dealer in Torrance), I paid for a gun and filled out "Section A" of form 4473. Ten days or more later I picked up a gun. It was the make, model, caliber that I had purchased but had not seen or handled before, and it bore all the required markings. When I picked it up, I signed "Part C" of form 4473, which applies when the transfer of the gun happens later than than the signing of Section A by the buyer. Then, presumably, the seller filled out Section D with the make, model, caliber, and serial number of the particular gun I picked up.

This was not an unlawful transaction. There was no purchase, sale, or possession of a firearm with an altered or removed serial number. The handgun bore the manufacturer, make, model and serial number. No crime was committed.

The critical point here is that, unless there is a special rule that nobody has mentioned, handguns do not need to be physically present to be sold at a gun show. You can buy a gun at a gun show without seeing or handling it, then go to the dealer 10 days later somewhere else to pick it up, sign Section C, do the gun handling demonstration with the specific gun you have purchased (which only needs to be done prior to delivery, not necessarily at the same time you pay for it).

There is no exception to the law of gun sales for gun shows. In fact there are additional regulations for gun shows - mostly addressing the nature of the forum. In my legal opinion (and apparently in the opinion of the County's lawyers as they stipulated to this mixed question of fact/law): Guns (at least handguns) must be present for a lawful sale.

According to the law of summary judgment, the County is stuck with that conclusion for the motion and the appeal. Furthmore, they would have a hard time trying to retract the stipulation at any subsequent trial.

So what's your point?

You claim your own gun-less gun sale was lawful. I would assert that it is, at best, an open question.

FABIO GETS GOOSED!!!
10-21-2010, 6:37 PM
While "in theory" a new gun purchase could conceivably be effected without seeing or "touching" the gun, in practice, I think most, if not all of the members of this forum would have a hard time purchasing a used gun without first "fondling" it.

I've bought used guns lots of times on internet auctions, usually there is a picture and that is enough for me.

FABIO GETS GOOSED!!!
10-21-2010, 6:44 PM
In my legal opinion (and apparently in the opinion of the County's lawyers as they stipulated to this mixed question of fact/law): Guns (at least handguns) must be present for a lawful sale.

Actually no, its stipulation was subject to a "question of law" objection which is well-taken because the statement was not an evidentiary fact, it was a legal conclusion, an incorrect legal conclusion in my opinion for the reasons stated above.

Some of the most savvy firearm law experts in CA have posted in this thread and they're not disagreeing with me.

You claim your own gun-less gun sale was lawful. I would assert that it is, at best, an open question.

What crime did I or the gun dealer commit? Which specific Penal Code section was violated by me or by the gun dealer? Has anyone in the state of California ever been arrested or prosecuted for purchasing a firearm without seeing or handling the firearm until it was delivered?

CSACANNONEER
10-21-2010, 6:51 PM
While "in theory" a new gun purchase could conceivably be effected without seeing or "touching" the gun, in practice, I think most, if not all of the members of this forum would have a hard time purchasing a used gun without first "fondling" it.

I do not have "hard" statistics on the ratio of used to new guns sold at gun shows, but even at a 50 - 50 split, would there be a lot of used guns purchased before "fondling"? I don't think so.

I have purchased sevral guns off this forum with seeing and fondling them first.

hoffmang
10-21-2010, 7:28 PM
What is the authority that a firearm must be physically present at a gun show (e.g., for inspection by the seller and buyer to insure correct documentation of the serial number, make, model, and caliber) in order to be sold?

It's, at least, an undue burden on commerce in arms.

Do you think the county could pass an ordinance that didn't allow porn magazines at adult bookstores but still let you buy them for delivery later?

-Gene

Lex Arma
10-21-2010, 7:28 PM
Actually no, its stipulation was subject to a "question of law" objection which is well-taken because the statement was not an evidentiary fact, it was a legal conclusion, an incorrect legal conclusion in my opinion for the reasons stated above.

And your expertise in the Federal Rules of Civil Procedure (esp. Rule 56) is based on what?

Some of the most savvy firearm law experts in CA have posted in this thread and they're not disagreeing with me.

And this is supposed to impress me? Experts disagree all the time.


What crime did I or the gun dealer commit? Which specific Penal Code section was violated by me or by the gun dealer? Has anyone in the state of California ever been arrested or prosecuted for purchasing a firearm without seeing or handling the firearm until it was delivered?

My hourly rate is $360 an hour.

For you, one hour minimum. Payment up front.

the_quark
10-21-2010, 7:36 PM
Some of the most savvy firearm law experts in CA have posted in this thread and they're not disagreeing with me.


Just curious - not actually trying to make an argument from authority, here - did you notice who Lex Arma is? :)

Blackhawk556
10-21-2010, 7:51 PM
when i read this thread i got the feeling he was saying this to make a point about the nordyke case

FABIO GETS GOOSED!!!
10-21-2010, 8:07 PM
And your expertise in the Federal Rules of Civil Procedure (esp. Rule 56) is based on what?

Why won't you concede the "stipulated fact" was subject to an objection?

And this is supposed to impress me? Experts disagree all the time.

My hourly rate is $360 an hour.

For you, one hour minimum. Payment up front.

You can't identify any penal code section that I violated, can you? Nobody else here can either.

Assuming that I would hire you, I can afford a $360 hourly rate.

wildhawker
10-21-2010, 8:11 PM
My hourly rate is $360 an hour.

For you, one hour minimum. Payment up front.

:rofl2: :rofl2:

Lex Arma
10-21-2010, 8:43 PM
Why won't you concede the "stipulated fact" was subject to an objection?

Why don't you concede that you don't know what you are talking about. Every fact is "subject to an objection." For the objection to mean anything, it has to be sustained by a judge. Have you found any order by any judge sustaining any of the objections made by the Defendants in the Joint Statement of Undisputed Facts? No. Objections that are not sustained are deemed overruled.

So again..... What is your point?


You can't identify any penal code section that I violated, can you? Nobody else here can either.

I already cited the relevant code sections on the general gun show question.

As for any laws you may have violated, I don't give specific personal legal advice over a public website. You know, attorney/client privilege, the right against self-incrimination and all that. ....

Assuming that I would hire you, I can afford a $360 hourly rate.

Save your money. I wasn't offering to represent you.

FABIO GETS GOOSED!!!
10-21-2010, 9:22 PM
I may be wrong since I don't have the expertise that you do, but I think an appellate court that doesn't agree with a trial judge's ruling on an objection, i.e., because the trial judge was wrong on the law, has the power to do something about it.

You're supporting your client's central argument that the ordinance burdens a "core right" to acquire firearms for self defense with a purported "concession" from the summary judgment motion on the non-2A claims (which your client lost by the way just like every other motion and appeal in this decade long litigation). But on the real issue of whether guns must be physically present to be sold at a gun show, the best you can come up with is some weasely cop-out that it's an "open question" and this nonsense:

As for any laws you may have violated, I don't give specific personal legal advice over a public website. You know, attorney/client privilege, the right against self-incrimination and all that. ....

I didn't violate any law by purchasing a handgun without seeing or handling it before delivery and you know it! lol

hoffmang
10-21-2010, 9:34 PM
I may be wrong since I don't have the expertise that you do, but I think an appellate court that doesn't agree with a trial judge's ruling on an objection, i.e., because the trial judge was wrong on the law, has the power to do something about it.
And the attorney who doesn't actually practice speaks again. Remember the actual procedural posture of this case? Nope.

Denial of leave to ammend means that all factual inferences must be in favor of the appellants. Even if the objection is sustainable, it isn't sustainable in this case at this time. Also, the objection was about the relevance to the 1A and EP claims, not the 2A. Think about it. Well, it may be hard for you to understand.

You're supporting your client's central argument that the ordinance burdens a "core right" to acquire firearms for self defense with a purported "concession" from the summary judgment motion on the non-2A claims (which your client lost by the way just like every other motion and appeal in this decade long litigation). But on the real issue of whether guns must be physically present to be sold at a gun show, the best you can come up with is some weasely cop-out that it's an "open question" and this nonsense:
You conveniently skipped my "at least undue burden" point. Want to address that?

I didn't violate any law by purchasing a handgun without seeing or handling it before delivery and you know it! lol
Did you start your DROS without the Serial Number?

Fabio: You've been wrong on bullet buttons and most everything else I've engaged with you on. The only place I'll tip my hat to you is showing that FFL's can't sell large capacity magazines. I suggest you temper your disparaging comments with the fact that two and only two lawyers have ever incorporated the Second Amendment. You're not one of them, and the guy you're arguing with is.

-Gene

FABIO GETS GOOSED!!!
10-21-2010, 9:44 PM
Whether guns may be sold at gun shows without the gun being physically present is a legal question, not a factual inference.

What law prevents guns from being sold at gun shows without being physically present? Do you have an answer to that one? This might have some bearing on "burden" lol.

Re bullet buttons: how about I give Mr. Moody some arguments to make and see how that plays out? Care to wager on that?

Lex Arma
10-21-2010, 9:44 PM
I may be wrong since I don't have the expertise that you do,

You should have stopped while you were ahead.

but I think an appellate court that doesn't agree with a trial judge's ruling on an objection, i.e., because the trial judge was wrong on the law, has the power to do something about it.

Not on an issue of fact that was stipulated to in a summary judgment motion. And not when the county has not filed a cross-appeal to challenge that ruling. And, based on the law of summary judgment, my clients as the non-moving party, is entitled to have inferences from facts drawn in their favor.

You're supporting your client's central argument that the ordinance burdens a "core right" to acquire firearms for self defense with a purported "concession" from the summary judgment motion on the non-2A claims (which your client lost by the way just like every other motion and appeal in this decade long litigation).

This idea that a gun needs to be present for a firearm transaction is only part of my argument that that right to acquire firearms is part of the core 2A right. You are wrong about losing every other motion. I beat back a motion to dismiss that let me conduct discovery before we got to the summary judgment.

But on the real issue of whether guns must be physically present to be sold at a gun show, the best you can come up with is some weasely cop-out that it's an "open question" and this nonsense:

No. I said your hypothetical was an open question.

I didn't violate any law by purchasing a handgun without seeing or handling it before delivery and you know it! lol

See my earlier post about not giving specific personal legal advice on a pubic website.

hoffmang
10-21-2010, 9:53 PM
Whether guns may be sold at gun shows without the gun being physically present is a legal question, not a factual inference.

What law prevents guns from being sold at gun shows without being physically present? Do you have an answer to that one? This might have some bearing on "burden" lol.

Re bullet buttons: how about I give Mr. Moody some arguments to make and see how that plays out? Care to wager on that?

Could the county ban sales at book stores because book stores are only for storing books, not selling them?

I'll happily bet you $1000.00 to the charity of your choice on Bullet Buttons for the reverse. Call him up. But be careful - you might not have all the facts!

Mind answering my question if you DROSed a handgun you don't have the serial number for?

-Gene

FABIO GETS GOOSED!!!
10-21-2010, 9:53 PM
This idea that a gun needs to be present for a firearm transaction is only part of my argument that that right to acquire firearms is part of the core 2A right. You are wrong about losing every other motion. I beat back a motion to dismiss that let me conduct discovery before we got to the summary judgment.

Good for you!

No. I said your hypothetical was an open question.

The law you cited is the same for purchases at gun shows and purchases from storefront FFLs. And it does not require the gun to be physically present in order to be sold.

hoffmang
10-21-2010, 10:00 PM
Fabio,

How about just posting your BB screed in a thread here and then forwarding it to Mr. Moody. You'll save me time and be very helpful to the cause.

Also, please answer some of my questions you're ducking.

-Gene

FABIO GETS GOOSED!!!
10-21-2010, 10:01 PM
Could the county ban sales at book stores because book stores are only for storing books, not selling them?

Apples, oranges. The Nordyke panel seems to like Alameda County's "public safety" arguments, if the Nordykes are lucky enough to get intermediate scrutiny those should be enough to uphold the ordinance.

I'll happily bet you $1000.00 to the charity of your choice on Bullet Buttons for the reverse. Call him up. But be careful - you might not have all the facts!

I seem to remember you saying that before on some other topic lol.

Mind answering my question if you DROSed a handgun you don't have the serial number for?

I'm pretty sure Turners had the serial number of the revolver when I bought it without seeing and handling it.

-Gene[/QUOTE]

FABIO GETS GOOSED!!!
10-21-2010, 10:04 PM
How about just posting your BB screed in a thread here and then forwarding it to Mr. Moody. You'll save me time and be very helpful to the cause.

If DoJ is actually litigating this maybe I will. Why don't you fill me in on what is happening?

Also, please answer some of my questions you're ducking.

Please answer mine, the one this thread is about.

hoffmang
10-21-2010, 10:05 PM
The DROS for a handgun can't start until the serial number is known. I hope that you can read the penal code for that basic concept. What day are you picking up this illegally DROSed without a serial number firearm? I can narrow down the Turners in question to have some of my favorite DOJ agents there to get them for not having enough 24 hour periods...

Enough playing hide the salami. What is your devastating anti-bullet button legal reasoning. Out with it.

-Gene

hoffmang
10-21-2010, 10:10 PM
Please answer mine, the one this thread is about.

You miss that the county can't, under state stare decisis, ban the sale of firearms on county property. As such, it becomes more absurd for the county to claim that it can allow the sale of firearms on county property without firearms. The county can ban the possession of books on county property at the book fair without banning commerce in books or adult magazines? The answer is of course no. The attempt to ban possession of guns was an end run attempt around the state court decision that they couldn't ban commerce. If the county had opposed and said that you could sell firearms without the possession of firearms, their commerce arguments would have been even more absurd. They made the choice to not dispute the fact - just object to its relevance. That's the law of this case and that's the record in front of this court of appeals - regardless of the merely technical argument you're trying to make.

You're probably unaware that all three judges - especially including Alarcon - consider the argument that you can have gunless gunshows relatively frivolous, right?

-Gene

FABIO GETS GOOSED!!!
10-21-2010, 10:19 PM
The DROS for a handgun can't start until the serial number is known. I hope that you can read the penal code for that basic concept. What day are you picking up this illegally DROSed without a serial number firearm? I can narrow down the Turners in question to have some of my favorite DOJ agents there to get them for not having enough 24 hour periods...

Did you read what I said?

Enough playing hide the salami. What is your devastating anti-bullet button legal reasoning. Out with it.

Why do you keep bringing it up? Our bullet button go around was like 2 or 3 years ago lol. I'm happy just watching how the flowchart case plays out but if you want to fill me in on the facts that I don't know then please feel free.

ke6guj
10-21-2010, 10:20 PM
The DROS for a handgun can't start until the serial number is known. I hope that you can read the penal code for that basic concept. What day are you picking up this illegally DROSed without a serial number firearm? I can narrow down the Turners in question to have some of my favorite DOJ agents there to get them for not having enough 24 hour periods...
Gene, just to let you know, Turners does DROS handguns that are not physically in stock at the store. but they do know the serial number before the DROS is started, because they get that info from the central warehouse or from one of the other store locations. So, for instance when Turners had a sale on Sig P6's,they had one demo unit at each store and 100at the warehouse, as each person bought one, the available numbers at the warehouse went down to zero. All 10? stores drew from the same inventory, even though it was not on that stores bound book. The warehouse then transfered those handguns to each store, based on the serial numbers, sometime during the 10-day wait.

FABIO GETS GOOSED!!!
10-21-2010, 10:31 PM
Gene, just to let you know, Turners does DROS handguns that are not physically in stock at the store. but they do know the serial number before the DROS is started, because they get that info from the central warehouse or from one of the other store locations. So, for instance when Turners had a sale on Sig P6's,they had one demo unit at each store and 100at the warehouse, as each person bought one, the available numbers at the warehouse went down to zero. All 10? stores drew from the same inventory, even though it was not on that stores bound book. The warehouse then transfered those handguns to each store, based on the serial numbers, sometime during the 10-day wait.

Nothing illegal here. And nothing stopping an FFL from selling at a gun show a handgun that the FFL has in his or her own inventory, but which is not physically present at the gun show. Gun shows aren't as fun though if you can't look at and handle the merchandise.

Just curious, do the Nordykes sell guns themselves at their gun shows?

hoffmang
10-21-2010, 10:40 PM
Did you read what I said?

I did. How does the usual dealer without an inventory start a Dealers Record of Sale without being able to inspect the serial number of the firearm?

Recall that it's state jurisprudence that a County must allow sales of firearms on County property. With that in mind, how can that dealer since it's not a dealers record of future sale.

PC § 12073 (a)As required by the Department of Justice, every dealer shall keep a register or record of electronic or telephonic transfer in which shall be entered the information prescribed in Section 12077.

PC § 12077 (b)(1)For handguns, information contained in the register or record of electronic transfer shall be the date and time of sale, make of firearm, ... manufacturer's name if stamped on the firearm, model name or number, if stamped on the firearm, if applicable, serial number, other number (if more than one serial number is stamped on the firearm), any identification number or mark assigned to the firearm pursuant to Section 12092, caliber, type of firearm, if the firearm is new or used, barrel length, color of the firearm, ...

So if the firearms dealer at the gun show can't comply with 12077, then they can't effect a sale at a gun show which they are obligated to be allowed to complete per state jurisprudence. The counties supposed answer to that was "they can bring pictures..." Since it's a crime to get the information in 12077 wrong, the county has had a very hard factual argument to make that an FFL doesn't need the firearm to complete a sale. That some chain FFLs can do it doesn't mean that most or even many FFLs can do it.

-Gene

hoffmang
10-21-2010, 10:40 PM
Just curious, do the Nordykes sell guns themselves at their gun shows?

No, but the dealer plaintiff does and the buyer plaintiffs buy.

-Gene

hoffmang
10-21-2010, 10:43 PM
Our bullet button go around was like 2 or 3 years ago lol. I'm happy just watching how the flowchart case plays out but if you want to fill me in on the facts that I don't know then please feel free.

Well, you're argument was so underwhelming then that I don't remember it. I seem to recall that it required ignoring Yamaha v. BOE.

Above you played it like you had special knowledge of the super argument against the bullet button but yet you don't care to actually make the supposed argument. I find that laughable.

-Gene

FABIO GETS GOOSED!!!
10-21-2010, 10:44 PM
They made the choice to not dispute the fact - just object to its relevance.

...and "question of law"...why do you keep leaving that objection out?

FABIO GETS GOOSED!!!
10-21-2010, 10:44 PM
Well, you're argument was so underwhelming then that I don't remember it. I seem to recall that it required ignoring Yamaha v. BOE.

You're really hung up on this aren't you? Why do you feel the need to keep insisting that you were right about bullet buttons? This thread isn't remotely about them!

Inoxmark
10-21-2010, 10:59 PM
Don't know about gun shows, but I am fairly sure that for out of state transfers it was perfectly fine to start DROS with just a serial number, without having the actual handgun in physical possession. That changed I think around 2002, at about same time DROS became online only.
I don't think the change came about because of any new law, certainly not a federal law, I vaguely recall reading a DOJ memo to FFLs to that effect at that time on their website.

FABIO GETS GOOSED!!!
10-21-2010, 11:00 PM
How does the usual dealer without an inventory start a Dealers Record of Sale without being able to inspect the serial number of the firearm?

How about a dealer with an inventory who leaves the gun in the safe at his storefront, then sells the gun at the show and starts the DROS using the serial number from the firearm he left back at the store? You know, you can write the serial number down somewhere and bring it with you to the gun show.

hoffmang
10-21-2010, 11:01 PM
...and "question of law"...why do you keep leaving that objection out?
Please show me where the objection was sustained or the undisputed fact is not undisputed. It's in.

But lets say you're right. The objection is out of order as its really a question of fact. Law: County must allow sales of firearms on County property (Nordyke I or Great Western - can't remember which.) Law: Dealers must report serial numbers to create a sale. Question of fact: Is a the presence of a firearm generally required to be able to record the serial number? Just because there are exceptions to the general rule doesn't remove it's factual basis.
You're really hung up on this aren't you? Why do you feel the need to keep insisting that you were right about bullet buttons? This thread isn't remotely about them!

I think it was you who tried to defend yourself from me saying you were wrong on the bullet button. As such, how are you right? Claiming credibility for losing an argument and then choosing to not surface said argument undermines your credibility claims beyond your starting point.

-Gene

hoffmang
10-21-2010, 11:10 PM
Enh... Shoulda looked up Great Western v. County of Los Angeles (http://caselaw.findlaw.com/ca-supreme-court/1196135.html) which points out:

The Legislature has enacted several statutes specifically pertaining to the regulation of gun shows.   Penal Code section 12071, which concerns the licensing of retail firearms dealers and mandates a 10-day waiting period for the purchase of firearms, provides that, with certain exceptions, the firearms retail business “shall be conducted only in the buildings designated in the license.” (§ 12071, subd. (b)(1)(A).)   One of those exceptions, found in subdivision (b)(1)(B), is for gun shows:  “A person licensed pursuant to [this section] may take possession of firearms and commence preparation of registers for the sale, delivery, or transfer of firearms at gun shows or events, ․ if the gun show or event is not conducted from any motorized or towed vehicle.   A person conducting business pursuant to this subparagraph shall be entitled to conduct business as authorized herein at any gun show or event in the state without regard to the jurisdiction within this state that issued the license pursuant to [this section], provided the person complies with (i) all applicable laws, including, but not limited to, the waiting period specified in subparagraph (A) of paragraph (3), and (ii) all applicable local laws, regulations, and fees, if any.”

Handling a firearm to read the serial number to complete the Dealers Record of Sale would be necessary to "conduct business as authorized herein at any gun show." Also, an FFL, "may take possession of firearms and commence preparation of registers for the sale, delivery, or transfer of firearms at gun shows."

So about your credibility argument around bullet buttons?

-Gene

FABIO GETS GOOSED!!!
10-21-2010, 11:12 PM
Question of fact: Is a the presence of a firearm generally required to be able to record the serial number? Just because there are exceptions to the general rule doesn't remove it's factual basis.

This is the best argument you can make? The undisputed "fact" wasn't "the physical presence of a firearm at a gun show is generally but not always required."

On bullet buttons, I don't really care who's wrong or right! I think your SKS and Yamaha arguments are more vulnerable than you seem to but again I don't really care!

hoffmang
10-21-2010, 11:17 PM
On bullet buttons, I don't really care who's wrong or right! I think your SKS and Yamaha arguments are more vulnerable than you seem to but again I don't really care!

If all you have is that the enabling regulations for 12276.1 could be challenged then I'm going to laugh all the way to victory. You've never thought through what the even intermediate scrutiny analysis would be if you're correct that 11 CCR 5469 (a) is incorrectly adopted, have you?

Can you apply for a job at BoF, please? Mrs. Merrilees is gone and an equally amusing replacement would add comedy to my life!

-Gene

FABIO GETS GOOSED!!!
10-21-2010, 11:18 PM
Handling a firearm to read the serial number to complete the Dealers Record of Sale would be necessary to "conduct business as authorized herein at any gun show."

The dealer can read and jot down the serial number at the store then leave the gun in the safe!

So about your credibility argument around bullet buttons?

Just let it go!! lol

FABIO GETS GOOSED!!!
10-21-2010, 11:21 PM
If all you have is that the enabling regulations for 12276.1 could be challenged then I'm going to laugh all the way to victory. You've never thought through what the even intermediate scrutiny analysis would be if you're correct that 11 CCR 5469 (a) is incorrectly adopted, have you?

I'm laughing already at your obsession with this! You don't need to challenge the enabling regulations, I'm pretty sure I said that in 2008 or whenever it was.

hoffmang
10-21-2010, 11:23 PM
The dealer can read and jot down the serial number at the store then leave the gun in the safe!
And the bookseller can just take the guy's address and send him the book.

Just let it go!! lol

Nah. It's fun to remind the silent lurkers that you're not a very good lawyer.

-Gene

Cali-Shooter
10-21-2010, 11:26 PM
Nah. It's fun to remind the silent lurkers that you're not a very good lawyer.

-Gene

That's me! Couldn't stop watching this thread after the can of whup was starting to be opened by Gene. :lurk5:

FABIO GETS GOOSED!!!
10-21-2010, 11:30 PM
Nah. It's fun to remind the silent lurkers that you're not a very good lawyer.

Good enough to predict that your Oakland public records lawsuit was going to bomb...not good enough to predict just how hard though! lol

Typical for you to resort to personal attacks by the way.

I'm sorry if I struck a nerve pointing out that guns don't need to be physically present to be sold at gun shows!

hoffmang
10-21-2010, 11:40 PM
Good enough to predict that your Oakland public records lawsuit was going to bomb...not good enough to predict just how hard though! lol

Typical for you to resort to personal attacks by the way.

I'm sorry if I struck a nerve pointing out that guns don't need to be physically present to be sold at gun shows!

You didn't strike a nerve but you asked me to answer your question and I did. You however have chosen not to answer my questions.

Glad I struck the desire to hide.

-Gene

FABIO GETS GOOSED!!!
10-22-2010, 9:54 AM
Glad I struck the desire to hide.

More like the desire to sleep!

No hat tip for my prediction of failure for the Oakland public records act lawsuit? How about Daubert evidence not being required under intermediate scrutiny?

You miss that the county can't, under state stare decisis, ban the sale of firearms on county property.

What was the case again that said this?

Anyway my prediction is that Nordyke will continue its losing streak, the 9th Circuit will tip their hat to the 3rd Circuit and will rule either that there is no burden or that there is no infringement under intermediate scrutiny. We'll just wait and see what happens I guess!

If you want to do a bullet button mini arbitration in front of a retired judge or something that would be fun. We submit briefs concurrently,mine anonymously, split the fee, and the arbitrator decides whether bullet button rifles have the capacity to accept detachable magazines based on the briefs. Loser pays the winner's portion of the arbitrator's fee and kicks in some cash to the charity of the winner's choosing. (The fee needs to be reasonable, loser is not going to be on the hook for much more than $1K everything included.) Otherwise, just let it go!!

wash
10-22-2010, 9:56 AM
Lets say you have 2 FFL dealers and a non-ffl buyer at a gun show.

Dealer #1 has a revolver in his safe but has a picture and the serial number with him at the show.

Dealer #2 buys that revolver sight unseen. Since he's an FFL, no 10 day wait is required, he just puts it in his book.

Non-ffl buyer hears about the transaction and wants to purchase the revolver from dealer #2 at a higher price.

How can dealer #2 legally sell the revolver to non-ffl buyer without it being present?

Sgt Raven
10-22-2010, 4:04 PM
Nah. It's fun to remind the silent lurkers that you're not a very good lawyer.
-Gene

:smilielol5:We need a POWNED smillie. :p

hoffmang
10-22-2010, 9:03 PM
What was the case again that said this?

Nordyke TS v. Santa Clara County (http://caselaw.findlaw.com/us-9th-circuit/1384786.html) won by Don Kilmer.


We agree that the act of exchanging money for a gun is not “speech” within the meaning of the First Amendment.   However, the addendum covers more than the simple exchange of money for a gun.   The addendum purports to prohibit any person from “offering for sale ․ firearms or ammunition to any other person at a gun show at the fairgrounds.”   The Supreme Court has defined commercial speech as speech that “does no more than propose a commercial transaction.”  Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 762, 96 S.Ct. 1817, 1825, 48 L.Ed.2d 346 (1976);  Board of Trustees of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 482, 109 S.Ct. 3028, 3036, 106 L.Ed.2d 388 (1989).   An offer to sell firearms or ammunition is speech that “does no more than propose a commercial transaction.”   Such an offer is, therefore, commercial speech within the meaning of the First Amendment.

...

The lease addendum before us does not meet these criteria.   It curtails commercial speech, rather than attempting to impose by proper legislative acts such restrictions on the sale of guns at gun shows not otherwise provided by, but consistent with, the applicable federal and state law.

...

Therefore, we agree that the addendum to the lease between Santa Clara County and its lessee, SCCFMC, is contrary to the First Amendment.

You did predict that we wouldn't prevail in the Oakland PRA case. Duabert evidence is required with intermediate scrutiny - please see Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-39.

However, my comment on the "desire to hide" wasn't about both of us going to sleep. It was that you wish to keep your bullet button argument and your identity a secret. I find that amusing along the lines of a quack inventor of a perpetual motion machine that will not explain how it works.

Also note this passage in CA law to your original question:
PC 12071 (b)(1)(B)A person licensed pursuant to subdivision (a) may take possession of firearms and commence preparation of registers for the sale, delivery, or transfer of firearms at gun shows or events, as defined in Section 478.100 of Title 27 of the Code of Federal Regulations, or its successor, if the gun show or event is not conducted from any motorized or towed vehicle.

That strongly implies that possession is necessary to commence a DROS though it does use "may."

I'm going to enjoy not hearing from you when the Second Amendment argument prevails in Nordyke.

-Gene

Blackhawk556
10-22-2010, 9:03 PM
didn't you and hoffman make a bet about a year ago?

More like the desire to sleep!

No hat tip for my prediction of failure for the Oakland public records act lawsuit? How about Daubert evidence not being required under intermediate scrutiny?



What was the case again that said this?

Anyway my prediction is that Nordyke will continue its losing streak, the 9th Circuit will tip their hat to the 3rd Circuit and will rule either that there is no burden or that there is no infringement under intermediate scrutiny. We'll just wait and see what happens I guess!

If you want to do a bullet button mini arbitration in front of a retired judge or something that would be fun. We submit briefs concurrently,mine anonymously, split the fee, and the arbitrator decides whether bullet button rifles have the capacity to accept detachable magazines based on the briefs. Loser pays the winner's portion of the arbitrator's fee and kicks in some cash to the charity of the winner's choosing. (The fee needs to be reasonable, loser is not going to be on the hook for much more than $1K everything included.) Otherwise, just let it go!!

FABIO GETS GOOSED!!!
10-23-2010, 7:01 AM
Duabert evidence is required with intermediate scrutiny - please see Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-39.

Not one circuit agrees with you and all of these (http://www.calguns.net/calgunforum/showpost.php?p=3935600&postcount=169) circuits explcitly disagree with you! If I am not a good lawyer, you are a worse "paralawyer" lol.

That strongly implies that possession is necessary to commence a DROS though it does use "may."

As you point out PC 12071(b)(1)(B) is a permissive statute, and moreover requires the dealer to comply with "all applicable local laws, regulations..." which as you are well aware includes the Alameda ordinance at issue.

In any event, the proof is in the pudding what the 9th circuit panel thinks about the argument that Alameda is somehow stuck with the concession about physical presence of firearms being required at gunshows, and they're not exactly buying it:

County officials then exchanged several letters with the Nordykes. The General Manager of the fairgrounds asked the Nordykes to submit a written plan to explain how their next gun show would comply with the Ordinance. As the County Counsel had told the General Manager, the Ordinance did not expressly prohibit gun shows or the sale of firearms. The Nordykes insisted then and maintain now that they cannot hold a gun show without guns; perhaps because they thought it futile, they never submitted a plan.

I'm going to enjoy not hearing from you when the Second Amendment argument prevails in Nordyke.

You won't hear from me when the argument fails, but I will expect a hat tip.

FABIO GETS GOOSED!!!
10-23-2010, 7:16 AM
didn't you and hoffman make a bet about a year ago?

I've proposed putting the bullet button issue before a qualified neutral at least twice, I think it was originally hoffmang's idea. Who's right or wrong doesn't make any difference to me but I'm willing to put up $1k to do it to see what happens. No sense arguing it here with all the personal attacks (from someone who is not always right on the law) and no qualified neutral to decide the merits.

FABIO GETS GOOSED!!!
10-23-2010, 7:43 AM
There was another bullet button bet (http://www.calguns.net/calgunforum/showpost.php?p=2137031&postcount=205) I proposed at one point. My prediction about what OAL would do with hoffmang's last underground regulation petition was spot on too.

hoffmang
10-23-2010, 8:50 AM
Not one circuit agrees with you and all of these (http://www.calguns.net/calgunforum/showpost.php?p=3935600&postcount=169) circuits explcitly disagree with you! If I am not a good lawyer, you are a worse "paralawyer" lol.


The rejection of Daubert in Annex Books was about the City claiming the reply data from plaintiffs needed to reach that standard. I'd suggest you take a look at the most recent ruling (http://iml.org/files/pages/6056/09-4156.pdf) in Annex Books as I'd love to hear you tell me what standard Easterbrook is applying as it's certainly not deferential to the City under intermediate scrutiny.

Your basic position remains that the incorporated Second Amendment means little more than a gun in your home that you can't acquire in the first place. Thanks for playing from LCAV's bench.

I'm pretty sure I know who you are but your quest for anonymity remains amusing. Because of you and I having a mutual acquaintance, I don't think you're an Irwin Nowick style "pro-gun" but I do seriously have to remind folks that anonymous speech gets a discount as it's motives aren't always clear.

On the BB, your secret squirrel theory is going to be foreclosed far faster than you expect.

-Gene

FABIO GETS GOOSED!!!
10-23-2010, 9:20 AM
I'd suggest you take a look at the most recent ruling (http://iml.org/files/pages/6056/09-4156.pdf) in Annex Books as I'd love to hear you tell me what standard Easterbrook is applying as it's certainly not deferential to the City under intermediate scrutiny.

Easterbrook's standard in the 7th Circuit is more rigorous than anyone else's, I've mentioned that before (http://www.calguns.net/calgunforum/showpost.php?p=3935717&postcount=171). Daubert quality is not requried though, I'm still waiting for the hat tip on that point and your misreading of Alameda Books.

Your basic position remains that the incorporated Second Amendment means little more than a gun in your home that you can't acquire in the first place. Thanks for playing from LCAV's bench.

Actually no, that's not my position. Acquisition is part of the 2A, whether it's as "core" as using a firearm in self defense remains to be seen, and public safety regulations which minimally impact the ability to acquire a firearm either do not burden the right at all, or they do not infringe under intermediate scrutiny. All of the dealers who would be exhibitors at the gun show are free to sell their guns from their storefronts any of the other 360 days of the year, and all of the buyers who would have gone to the gunshow are free to go to the dealer's storefront to buy the gun on any of those 360 days. The buyers have to go to the storefront to pick up the gun anyway!

On the BB, your secret squirrel theory is going to be foreclosed far faster than you expect.

That wouldn't surprise me at all! You would know better than I do how DOJ is or is not litigating the flowchart case. Again, I don't really care! I just think you should get over it and quit bringing it up all the time. Or set something up with a neutral.

trashman
10-23-2010, 10:06 AM
Actually no, that's not my position. Acquisition is part of the 2A, whether it's as "core" as using a firearm in self defense remains to be seen,


I am shocked, shocked that you can't stop yourself from playing both sides of the argument.

Your "..whether it's as "core" " postulation sounds an awful lot like a softer version of the same argument my anti-gun friends have been making for years: that the right in the 2A isn't fundamental, and that anything the voters (through local boards, state legislatures, or Congress) choose to approve restricting that right is not only legal, but ethical, and that the stare decisis that is owed to Miller really sews up the argument once and for all.

Except of course, in this case your argument is just updated to capitulate on the point that the individual right is fundamental, and rather focusses on the ability of local boards, state legislatures, or Congress to impede that right to the extent they (and you) want.

Nobody seems to care that you have an opposing viewpoint (there are plenty on this board!), but I guess I'm baffled that you don't seem to have any constructive strategies to offer CGF -- you're much more interesting in a personal public pissing match with Gene than advancing the RKBA.

--Neill

FABIO GETS GOOSED!!!
10-23-2010, 10:30 AM
In terms of facts I think Nordyke is exceedingly weak on "burden." Same goes for the roster case, and the Chicago Ezell case. Look what's happened there with the lazy plaintiff who just hadn't gotten around to going to the range, and the inability to identify one person who couldn't do what needed to be done before the amnesty deadline. The bad facts and plaintiffs who couldn't show they were burdened sunk the injunction and colored the legal analysis. At the same time we are being told how carefully and intelligently plaintiffs are being selected for these flagship cases. Sorry but I don't agree. I don't think these cases are the best vehicles to argue for heightened scrutiny and I'm hoping we don't get bad law in the process.

As far as a pissing match goes, was I even looking for one? All of a sudden hoffmang appears out of the blue with bullet buttons and personal attacks. WTF is up with that? Don't know why he has this incessant need to do this and keep arguing points he is clearly wrong on, I guess that is part of his personality. He still won't concede that you can buy a handgun without it having to be physically present.

nick
10-23-2010, 10:37 AM
At the very least the Federal Form 4473 requires the make, model, serial number and caliber of the firearm(s) being purchased, and is signed by both parties (I think under penalty of perjury). So, it would be...unwise to fill that document out without physically inspecting the firearms, first.

Federal penalty of perjury might be an issue (although it's rarely used, it's mostly used to make an example of someone whom the prosecutor couldn't get for anything else). There's no such thing in CA though, the penalty for perjury was first limited through legislature, and the remaining provisions were struck down in 2-3 CA Supreme court cases, I have them somewhere. As a result, perjury isn't punishable in CA. I always wondered why some people weren't afraid to openly lie in court (as in they often contradicted themselves even in the declarations they filed, within the same declaration). I found out why a few months ago...

hoffmang
10-23-2010, 10:47 AM
In terms of facts I think Nordyke is exceedingly weak on "burden." You keep missing the county's 1A problem. It's 9th circuit law that they have to allow sales on county property at gun shows under the 1A. It's at least an undue burden on the 2A but that assumes a standard of review below Heller. You continue to think that the rejection of the dissent's position on scrutiny in Heller isn't binding. Many lower courts (but not all - see Mazarella) agree with you but 5 SCOTUS justices do not.

As far as a pissing match goes, was I even looking for one? All of a sudden hoffmang appears out of the blue with bullet buttons and personal attacks. WTF is up with that? Don't know why he has this incessant need to do this and keep arguing points he is clearly wrong on, I guess that is part of his personality. He still won't concede that you can buy a handgun without it having to be physically present.
I was just keeping pace with your personal attacks on Mr. Kilmer.

I know you can buy a title to a firearm without possessing it. I've personally done it before (http://www.hoffmang.com/firearms/milpitas-lowers/2007-07-07-Kilmer_to_DOJ-Letter.pdf). However, the question is whether an FFL can sell it at a gun show in a way that complies with his First Amendment right to offer for sale and sell at a gun show as well as state and federal law. For modern handguns your analysis may be correct but I can tell you that ATF has specifically disagreed with you in certain situations. For Curios, it is next to impossible for the County to say that physical possession of the firearms isn't necessary under a 1A commercial speech analysis. The $500 1875 Colt Peacemaker is not the $5000 1875 Colt Peacemaker. Recall the SUF was mostly as to the 1A and EP claims.

-Gene

dantodd
10-23-2010, 10:49 AM
I love Fabio v. Gene smackdown threads.

nick
10-23-2010, 10:53 AM
Whether guns may be sold at gun shows without the gun being physically present is a legal question, not a factual inference.

What law prevents guns from being sold at gun shows without being physically present? Do you have an answer to that one? This might have some bearing on "burden" lol.

Re bullet buttons: how about I give Mr. Moody some arguments to make and see how that plays out? Care to wager on that?

The burden is that this restricts a common business practice of presenting the goods one sells. You know, the practice humans used ever since they started selling things. If you can't present the goods, you're likely to lose a lot of sales. Loss of sales is a burden.

ke6guj
10-23-2010, 11:40 AM
That wouldn't surprise me at all! You would know better than I do how DOJ is or is not litigating the flowchart case. Again, I don't really care! I just think you should get over it and quit bringing it up all the time. Or set something up with a neutral.

is there any public info on this "flowchart case"?

dantodd
10-23-2010, 11:42 AM
is there any public info on this "flowchart case"?

I believe he using the term "case" colloquially rather than legally.

FABIO GETS GOOSED!!!
10-23-2010, 11:47 AM
You keep missing the county's 1A problem. It's 9th circuit law that they have to allow sales on county property at gun shows under the 1A.

Alameda allows sales at gun shows. This panel has demonstrated repeatedly over a decade that it doesn't think there's a 1A problem. Again, the proof is in the pudding.

I was just keeping pace with your personal attacks on Mr. Kilmer.

Now that you remind me, he was the one who got irritable about the physical presence of guns not being required to be sold at gun shows and then started the personal attacking. Sorry for saying you were the one who started it.

I know you can buy a title to a firearm without possessing it. I've personally done it before (http://www.hoffmang.com/firearms/milpitas-lowers/2007-07-07-Kilmer_to_DOJ-Letter.pdf). However, the question is whether an FFL can sell it at a gun show in a way that complies with his First Amendment right to offer for sale and sell at a gun show as well as state and federal law.

The offer is no different than the offer the storefront FFL makes when the actual firearm purchased is not physically present at the time of purchase.

For modern handguns your analysis may be correct but I can tell you that ATF has specifically disagreed with you in certain situations. For Curios, it is next to impossible for the County to say that physical possession of the firearms isn't necessary under a 1A commercial speech analysis. The $500 1875 Colt Peacemaker is not the $5000 1875 Colt Peacemaker. Recall the SUF was mostly as to the 1A and EP claims.

Thank for for your grudging concession that my analysis "may be correct" as to modern handguns. Which ATF rulings are you referring to?

hoffmang
10-23-2010, 12:00 PM
Thank for for your grudging concession that my analysis "may be correct" as to modern handguns. Which ATF rulings are you referring to?

They were ATF actions against FFLs which means they aren't easily linked to. ATF has taken the position in concert with CA DOJ that you can't begin a DROS without possession of the handgun by the FFL.

-Gene

FABIO GETS GOOSED!!!
10-23-2010, 12:08 PM
They were ATF actions against FFLs which means they aren't easily linked to. ATF has taken the position in concert with CA DOJ that you can't begin a DROS without possession of the handgun by the FFL.

An FFL who has a firearm in his inventory, and leaves it in the safe when he sells it, whether at the storefront or at a gunshow, wouldn't run afoul of this. The dealer doesn't need to have the gun physically in his hand when he is filling out the DROS.

dantodd
10-23-2010, 12:12 PM
Wouldn't one of many valid transactions at at gun show be the delivery of previously purchased weapons? Also, wouldn't gunsmithing services be a valid service offered at such shows? It would seem that both of those services related to the exercise of 2A would be unduly burdened when firearms are not permitted at gun shows. Gun shows are also one of the places that new innovations are often showcased and such exercise would also be unduly burdened. Training and orientation for owners purchasing new parts are also an important part of gun shows.

While the greatest emphasis has been on sales it is important to remember that there are many other aspects of gun shows that also require firearms to be present (or their prohibition would, at least be unduly burdensome.)

ontargetrange
10-23-2010, 12:30 PM
The DROS for a handgun can't start until the serial number is known. I hope that you can read the penal code for that basic concept. What day are you picking up this illegally DROSed without a serial number firearm? I can narrow down the Turners in question to have some of my favorite DOJ agents there to get them for not having enough 24 hour periods...

Enough playing hide the salami. What is your devastating anti-bullet button legal reasoning. Out with it.

-Gene

Having had more than one and less than 100 DOJ and ATF audits, I know exactly what they feel is the requirement about having the firearm present when doing the DROS and 4473.

Without physical possession you cannot ASSUME that a serial is this or that number. The Agents have all stated that you are breaking the rules filling out paperwork without the firearm. Each has stated they would be happy to write me up for doing that.

The fact that another FFL holder feels comfortable in taking a chance – go for it. After the last go around from ATF and their 3 week audit, I just don’t want the garbage from their office.

383green
10-23-2010, 2:39 PM
Even assuming that it is entirely legal for a dealer such as Turners to sell firearms which are physically present in their remote warehouse at the time of sale, a "gun show without guns" is still an undue burden.

I may feel quite comfortable buying a new gun from a large, well-known dealer like Turner's after examining an exemplar, knowing that I'll pick up a brand new gun fresh from their warehouse 10 days later, and presuming that their bookkeeping practices allow them to be confident that the correct serial number has been identified. I've been through this process at Turners storefronts, and while I haven't purchased a new gun from them while at a gun show, I'd feel comfortable with this process there, too.

However, it's been my observation that most of the dealers at gun shows I've attended have not been large, well-known sellers like Turners. Not only that, but the guns that I have purchased at gun shows have been old, collectable firearms, not brand new guns which are presumably all identical and all in perfect condition. Even if larger dealers such as Turners can legally and practically sell brand new guns from their inventory which are not physically present at the point of sale, this is not true for used guns, or for the majority of dealers at a gun show.

Thus, the legality of buying a sight-unseen gun at a store like Turners does not deflate the argument that a "gun show without guns" is an absurd and unworkable concept.

hoffmang
10-23-2010, 3:46 PM
The reason Turners is OK in the transaction in the OP is because of two reasons.

1. The gun was physically present when it was logged into the A/D book so the serial number in the A/D book should be trustworthy for the FFL.

2. There is a specific exception for offsite warehousing in the Federal Regulations implementing the GCA. There however is not an exception for other retail storefronts and each needs an FFL. However there is a specific exception in Federal law to the FFL's location restriction allowing an FFL to conduct business at a gun show. Further, there is a specific allowance in California law for the transfer dealer concept. Transfer dealers need physical presence of the firearm to log it into their A/D book. Note that there is no exception in Federal law to sell a firearm back at the office when at a gun show. This is why people keep saying that the SUF is at best a gray area.

The other problem with Fabio's reasoning as to "burden" is that it fails McDonald's reasoning. The City of Chicago argued that the Second Amendment right against the Federal Government was somehow lesser against the states and cities and they were specifically rejected on that argument. That means one can ask, could the Federal Government implement this rule/law?

In Ezell, it would clearly be unconstitutional for the U.S. to ban all gun ranges in the U.S. while requiring live fire range training to possess handguns strictly in the home.

In Nordyke, it would clearly be unconstitutional for the U.S. to ban all firearms on Federal non residential property that are not possessed by Scottish Games participants re-enactors or licensed carry permit holders.

Fabio, Alameda, and Chicago would all like to get around what the right means by claiming you can go somewhere else to exercise it. That's not the right that was incorporated - even ignoring scrutiny. If the 2A analysis were local, then the finding that handguns are common in Heller was wrong as they were particularly uncommon in D.C.

-Gene

FABIO GETS GOOSED!!!
10-23-2010, 6:13 PM
1. The gun was physically present when it was logged into the A/D book so the serial number in the A/D book should be trustworthy for the FFL.

Why would this be any different for the non-Turners FFL?

2. There is a specific exception for offsite warehousing in the Federal Regulations implementing the GCA. There however is not an exception for other retail storefronts and each needs an FFL. However there is a specific exception in Federal law to the FFL's location restriction allowing an FFL to conduct business at a gun show. Further, there is a specific allowance in California law for the transfer dealer concept. Transfer dealers need physical presence of the firearm to log it into their A/D book. Note that there is no exception in Federal law to sell a firearm back at the office when at a gun show. This is why people keep saying that the SUF is at best a gray area.

Cites? A dealer logs a gun into the A/D book with the gun physically present, the gun bears all the right markings, the dealer leaves the gun in the store's safe, goes to the gun show with the necessary and accurate info to DROS the gun (maybe even filling in a DROS form beforehand at the store with the gun physically in his or her hand), sells the gun at the gun show where the buyer completes and signs Section A of Form 4473, delivers it to the buyer at the store after the waiting period is over, the buyer does the safe handling demonstration and signs Section C of form 4473, the dealer completes and signs Section D, and the dealer does whatever else the dealer needs to do to log the transaction in the A/D book. If I have missed any of the paper pushing requirements assume they were done timely and correctly and accurately. What is the specific provision of state or federal law that has been violated by the dealer not physically bringing the gun to the gun show?

FABIO GETS GOOSED!!!
10-23-2010, 6:44 PM
Gene, just to let you know, Turners does DROS handguns that are not physically in stock at the store. but they do know the serial number before the DROS is started, because they get that info from the central warehouse or from one of the other store locations. So, for instance when Turners had a sale on Sig P6's,they had one demo unit at each store and 100at the warehouse, as each person bought one, the available numbers at the warehouse went down to zero. All 10? stores drew from the same inventory, even though it was not on that stores bound book. The warehouse then transfered those handguns to each store, based on the serial numbers, sometime during the 10-day wait.

Each Turner's location has its own FFL license, right? For the firearms in the central warehouse, on which license's bound book would the firearm initially be logged? Does the central warehouse have its own license or does the exception mentioned by hoffmang apply? Just trying to understand the mechanics of all this, thanks.

wildhawker
10-23-2010, 6:50 PM
Fabio, when are you going to sponsor CCW reform in your county? We do have an anonymous option.

FABIO GETS GOOSED!!!
10-23-2010, 6:53 PM
Do you have a link to the details? Thanks.

ke6guj
10-23-2010, 6:55 PM
Each Turner's location has its own FFL license, right? For the firearms in the central warehouse, on which license's bound book would the firearm initially be logged? Does the central warehouse have its own license or does the exception mentioned by hoffmang apply? Just trying to understand the mechanics of all this, thanks.

yes, each Turner's does have its own FFL.

They also have 2 01 FFLs at the Rancho Cucamonga Location, perhaps one of those is for the retail store there (Suite B) and one fore the central warehouse (Suite A).

ke6guj
10-23-2010, 6:56 PM
Do you have a link to the details? Thanks.

http://www.cgfstore.org/

hoffmang
10-23-2010, 7:02 PM
Why would this be any different for the non-Turners FFL?
Any FFL can use the specific exception for offsite storage. TITLE 27 CFR CHAPTER II § 478.50: "(a) No license is required to cover a separate warehouse used by the licensee solely for storage of firearms or ammuni- tion if the records required by this part are maintained at the licensed premises served by such warehouse."



Cites? A dealer logs a gun into the A/D book with the gun physically present, the gun bears all the right markings, the dealer leaves the gun in the store's safe IN SAN DEIGO, goes to the gun show IN SACRAMENTO with the necessary and accurate info to DROS the gun (maybe even filling in a DROS form beforehand at the store with the gun physically in his or her hand), sells the gun at the gun show where the buyer completes and signs Section A of Form 4473, delivers it to the buyer at the store after the waiting period is over BUT THE BUYER LIVES IN SACRAMENTO, the buyer does the safe handling demonstration and signs Section C of form 4473, the dealer completes and signs Section D, and the dealer does whatever else the dealer needs to do to log the transaction in the A/D book. If I have missed any of the paper pushing requirements assume they were done timely and correctly and accurately. What is the specific provision of state or federal law that has been violated by the dealer not physically bringing the gun to the gun show?

How does it work when the dealer isn't in the county the gun show is in? How does the remote dealer sell at the Alameda gun show without physical possession of the firearm to transfer it to the "transfer dealer?" It's now at least a significant burden that he has to ship the firearm.

No reply on the burden issues I pointed out above of course.

-Gene

hoffmang
10-23-2010, 7:05 PM
To add - it's specifically illegal to do the transfer in the parking lot so don't try to weasel out that way.

-Gene

ke6guj
10-23-2010, 7:14 PM
yes, each Turner's does have its own FFL.

They also have 2 01 FFLs at the Rancho Cucamonga Location, perhaps one of those is for the retail store there (Suite B) and one fore the central warehouse (Suite A).

now, since I don't know the exact procedure that Turner's uses when they pull stock from the central warehouse, it may be that when it is pulled for a specific sale, it is logged out of the central warehouse's bound book and logged into the selling store's bound book before they DROS it out to the seller. So, even though it is not physically at the store when DROSed, it does "belong" to that store.

FABIO GETS GOOSED!!!
10-23-2010, 7:29 PM
Any FFL can use the specific exception for offsite storage.

I was referring to 1. Doesn't look like the warehouse exception has anything to do with anything anyway as far as Turner's is concerned if the warehouse has its own license and is used by multiple Turner's locations each with its own license.

How does it work when the dealer isn't in the county the gun show is in? How does the remote dealer sell at the Alameda gun show without physical possession of the firearm to transfer it to the "transfer dealer?" It's now at least a significant burden that he has to ship the firearm.

The transaction in my hypothetical is legal even with your out-of-county modifications in bold. Again, what is the specific provision of federal or state law that has been violated by the dealer not physically bringing the gun to the gun show?

And let me get this straight, you're talking about the "significant burden" on a dealer who is happy to incur the time and expense of driving or flying from San Diego to Sacramento and back to sell a gun at a gun show, and he's going to whine about his constitutional rights being violated because he has to pay UPS $10 bucks to ship the firearm to a transfer dealer in Sacramento? I can't think of a more compelling example of a second amendment infringement lol.

Meanwhile anyone who wants to go to the Sacramento gun show and buy a gun can do that, legally, whether or not the gun is physically present. Assuming the buyer is a non-prohibited CA resident etc.

No reply on the burden issues I pointed out above of course.

The courts will find a way that the 2A can happily co-exist with local public safety/zoning/police power regulations.

FABIO GETS GOOSED!!!
10-23-2010, 7:30 PM
now, since I don't know the exact procedure that Turner's uses when they pull stock from the central warehouse, it may be that when it is pulled for a specific sale, it is logged out of the central warehouse's bound book and logged into the selling store's bound book before they DROS it out to the seller. So, even though it is not physically at the store when DROSed, it does "belong" to that store.

That makes sense. The warehouse exception is a non-issue on the question the thread is about.

FABIO GETS GOOSED!!!
10-23-2010, 7:34 PM
3 pages now and no specific provision of state or federal law that says guns must be physically present to be sold at a gun show. Isn't it time to put this issue to rest?

hoffmang
10-23-2010, 9:25 PM
3 pages now and no specific provision of state or federal law that says guns must be physically present to be sold at a gun show. Isn't it time to put this issue to rest?

Since you believe rational basis is the standard for the second amendment it's time to ignore you.

Please get your FFL for one location and then start selling guns including filling out 4473's at the local mall (that isn't your licensed location) and tell me how ATF and CA DOJ treat you.

And yes - the FFL is happy to fly or drive up once with his collection to sell them at a gun show, but he's not willing to have the price of his stock artificially driven up by Alameda's requirements that he ship every gun he sells to a local transfer dealer after he returns home.

Let's take your hypothetical to it's conclusion. Alameda county can ban the presence of guns at gun stores in Alameda county since they aren't physically required to sell guns and people can just drive to some other county.

Have a nice weekend Fabio. The Second Amendment is a real fundamental right and you don't care to be serious about its application.

-Gene

emcon5
10-23-2010, 9:51 PM
Even if ATF and DOJ carved a statement in granite that it was perfectly legal to have a gun show with no guns, it doesn't matter.

The Nordykes, or anyone else with more than 2 brain cells to rub together cannot have a "Gun Show" with no guns, because the whole idea is mind-numbingly stupid.

Nobody would come.
No dealers would rent space.
No customers would show up.

There would be 3 tables of pissed off guys selling beef jerky and T shirts, and a couple dozen angry customers who didn't know, who stop to pay the entry fee, swear, then turn around and leave.

It would make more sense to make a nice pile of cash in the middle of the parking lot and set it on fire, you would still be out the money, but you wouldn't piss off any customers.

dantodd
10-23-2010, 11:37 PM
If you couldn't have guns at a gun show wouldn't it just be a gun talk?

ETRA: stupid phone auto-speller.

FABIO GETS GOOSED!!!
10-24-2010, 7:23 AM
Please get your FFL for one location and then start selling guns including filling out 4473's at the local mall (that isn't your licensed location) and tell me how ATF and CA DOJ treat you.

That would be a problem since there are actually laws prohibiting you from doing that. Unlike with gun shows.

Let's take this hypothetical to its logical conclusion. All federal and state gun commerce regulations pose an "undue burden" on the 2A. I should be able to sell as many guns as I want to whoever I want (except prohibited persons in the presumptively lawful categories) wherever I want whenever I want. Good luck with that one!

Let's take your hypothetical to it's conclusion. Alameda county can ban the presence of guns at gun stores in Alameda county since they aren't physically required to sell guns and people can just drive to some other county.

Another bad example, other regulatory requirements would be implicated that are not implicated by the current ban on possession at the county fairgrounds.

You really should think about adding graceful concession to your repertoire. You've tried name calling, changing the topic, misrepresenting my position (e.g., "rational basis"), and the ultimate hissy fit, threatening to ignore me, and none of it changes the fact that you are unable to find any specific provision of federal or state law that requires guns to be physically present to be sold at a gun show. It's funny when the shoe is on the other foot and you are the FUD spreader instead of the FUD fighter!