PDA

View Full Version : Can a CA resident sell a gun on a FTF transfer at an AZ gun show?


steel
12-30-2012, 9:52 AM
Can a CA resident go to an AZ gun show and sell a gun FTF, over a handshake, with no exchange of paperwork and no FFL?

CSACANNONEER
12-30-2012, 9:55 AM
Federal law says that any transfer between residents of different states must go through a ffl in the buyer's state.

steel
12-30-2012, 9:58 AM
I understand this. However, federal law appears to place the onus on the buyer to follow the law to DROS it in his state; not the seller. Am I missing something?

Further, since a criminal act essentially requires scienter, if the buyer is under the belief that he is buying from an AZ resident, then the buyer is not committing a criminal act, correct? Or do the feds apply strict liability?

HowardW56
12-30-2012, 10:03 AM
I understand this. However, federal law appears to place the onus on the buyer to follow the law to DROS it in his state; not the seller. Am I missing something?

Further, since a criminal act essentially requires scienter, if the buyer is under the belief that he is buying from an AZ resident, then the buyer is not committing a criminal act, correct? Or do the feds apply strict liability?

Why would anyone want to risk it?

CSACANNONEER
12-30-2012, 10:05 AM
You're missing the fact that you will be party to a federal crime. How long will you get in prision for illegal gun trafficing?

BTW, the only state that has a DROS system is CA. But, CA law is not the issue here. ILLEGAL INTERSTATE ARMS TRAFFICING IS!

steel
12-30-2012, 10:05 AM
Why would anyone want to risk it?

That's an entirely separate issue.

I just want to know if anyone can point me to law that states that the CA seller would be breaking federal law by undertaking such action.

steel
12-30-2012, 10:07 AM
You're missing the fact that you will be party to a federal crime. How long will you get in prision for illegal gun trafficing?

Is that indeed trafficking? Can someone point me to the relevant law? I had an FFL tell me several years ago that the seller in this scenario would not be breaking any law whatsoever. That the burden entirely rests upon the buyer.

CSACANNONEER
12-30-2012, 10:10 AM
The FFL in question was a moron!

steel
12-30-2012, 10:11 AM
The FFL in question was a moron!

I'm not so sure about that. Again, what does the law specifically say? All I want to know is: Is the seller breaking the law?

I talked to the CA DOJ about this issue, and they couldn't give me an answer. I realize it's a federal law, but the DOJ couldn't tell me the answer.

lorax3
12-30-2012, 10:17 AM
federal law appears to place the onus on the buyer to follow the law to DROS it in his state; not the seller.

Incorrect. Federal law prohibits sellers, known as the "transferor" from selling firearms to someone who does not live in the same state in a FTF transaction.

18 U.S.C. 922(a)(5)
It shall be unlawful— 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

The transferor is the seller, the transferee is the buyer.

steel
12-30-2012, 10:19 AM
Thanks. That's exactly what I was looking for. :thumbsup:

CSACANNONEER
12-30-2012, 10:22 AM
Fine, 10 seconds on google gave me this:

http://wiki.calgunsfoundation.org/Transferring_firearms_Interstate

Note #5

It is illegal

(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;


Again, the FFL in question was a complete MORON.

Calling CA DOJ with legal questions is a waste of time.

Edit:

Thanks Lorax3. My internet connection is too slow.

dave1947
12-30-2012, 10:50 AM
can one califorian sell to another californian ftf in AZ ?

ke6guj
12-30-2012, 10:53 AM
can one califorian sell to another californian ftf in AZ ?

I beleive that federal law would allow the seller to sell it to the buyer in that case, but that federal law would not allow the buyer to bring it back to CA.


And I'm not sure what CA law says in that case either.

fizux
12-30-2012, 10:56 AM
can one califorian sell to another californian ftf in AZ ?

Only if the transfer complies with CA law. The general answer is no.

CSACANNONEER
12-30-2012, 10:57 AM
can one califorian sell to another californian ftf in AZ ?

As long as the laws of CA and AZ are both met. In other words, if you can sell it FTF in CA, you should be able to sell it FTF to another CA resident while in another state. Of course, that would limit FTF sales to +50 year old long guns and, even that will change 1-1-14.

fizux
12-30-2012, 11:01 AM
I beleive that federal law would allow the seller to sell it to the buyer in that case, but that federal law would not allow the buyer to bring it back to CA.


And I'm not sure what CA law says in that case either.

No. Fed law doesn't prohibit the buyer from bringing it back; it doesn't specifically authorize it either. CA law generally prohibits the transaction; it also requires that handguns be registered after "importation."

CSACANNONEER
12-30-2012, 11:05 AM
No. Fed law doesn't prohibit the buyer from bringing it back; it doesn't specifically authorize it either. CA law generally prohibits the transaction; it also requires that handguns be registered after "importation."

Actually, I believe that CA law requires handguns to go through a CA FFL and be DROSed. So, it would be illegal to transfer a handgun that without a FFL involved. The same is true of <50 year old long guns.

ke6guj
12-30-2012, 11:17 AM
No. Fed law doesn't prohibit the buyer from bringing it back; it doesn't specifically authorize it either. CA law generally prohibits the transaction; it also requires that handguns be registered after "importation."


umm, yes they do. it says that a CA resident can't transport into CA a firearm that they acquired outside of CA, with certain exceptions. And buying from a non-licensed CA resident is not one of them.

§ 478.29 Out-of-State acquisition of firearms by nonlicensees.
No person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, shall transport into or receive in the State where the person resides (or if a corporation or other business entity, where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State: Provided, That the provisions of this section:

(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 rifle or shotgun obtained from a licensed manufacturer, licensed importer, licensed dealer, or licensed collector in a State other than the transferee's State of residence in an over-the-counter transaction at the licensee's premises obtained in conformity with the provisions of § 478.96(c) and

(c) Shall not apply to the transportation or receipt of a firearm obtained in conformity with the provisions of §§ 478.30 and 478.97.


edit:

and here is the federal regs that would allow the CA-seller to sell to the CA-buyer in AZ,

§ 478.30 Out-of-State disposition of firearms by nonlicensees.
No nonlicensee shall transfer, sell, trade, give, transport, or deliver any firearm to any other nonlicensee, 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: Provided, That the provisions of this section:

(a) shall not apply to the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or any 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) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes.

but you still need to make sure that you aren't violating any CA laws if you do the transfer while you are not in CA.

Mssr. Eleganté
12-30-2012, 12:22 PM
Two unlicensed California residents in Arizona transferring a firearm do not have to follow California law at all. They only have to follow Arizona law and federal law. But as pointed out above, it would be illegal for the buyer to transport the firearm back into California per federal law.

fizux
12-30-2012, 4:01 PM
can one califorian sell to another californian ftf in AZ ?

Only if the transfer complies with CA law. The general answer is no.

Actually, I believe that CA law requires handguns to go through a CA FFL and be DROSed. So, it would be illegal to transfer a handgun that without a FFL involved. The same is true of <50 year old long guns.

That's why I indicated it was generally prohibited by California law; the principal exception is if one of the Californians has a FFL (including C&R, if applicable) and complies with all of California's requirements.

umm, yes they do. it says that a CA resident can't transport into CA a firearm that they acquired outside of CA, with certain exceptions. And buying from a non-licensed CA resident is not one of them.

§ 478.29 Out-of-State acquisition of firearms by nonlicensees.
No person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, shall transport into or receive in the State where the person resides (or if a corporation or other business entity, where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State: Provided, That the provisions of this section:

(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 rifle or shotgun obtained from a licensed manufacturer, licensed importer, licensed dealer, or licensed collector in a State other than the transferee's State of residence in an over-the-counter transaction at the licensee's premises obtained in conformity with the provisions of § 478.96(c) and

(c) Shall not apply to the transportation or receipt of a firearm obtained in conformity with the provisions of §§ 478.30 and 478.97.


edit:

and here is the federal regs that would allow the CA-seller to sell to the CA-buyer in AZ,

§ 478.30 Out-of-State disposition of firearms by nonlicensees.
No nonlicensee shall transfer, sell, trade, give, transport, or deliver any firearm to any other nonlicensee, 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: Provided, That the provisions of this section:

(a) shall not apply to the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or any 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) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes.

but you still need to make sure that you aren't violating any CA laws if you do the transfer while you are not in CA.

You quoted the very exception that renders the emphasized language inapplicable. Take another look at 27 CFR § 478.29(c).

(§ 478.97 imposes the record keeping requirement on dealers for loaned guns)

Two unlicensed California residents in Arizona transferring a firearm do not have to follow California law at all. They only have to follow Arizona law and federal law. But as pointed out above, it would be illegal for the buyer to transport the firearm back into California per federal law.

Of the situations that I can think of where the sale follows California law, the Feds have enumerated exceptions as long as the transferee's state law is complied with, such as:

- sale by/to a licensee (FFL, dealer or C&R if applicable), subject to complying with the law of the transferee's state of residence (California) -- including C&Rs must register handguns after importation.

- Bequest, intestate succession, etc., as long as the recipient is eligible to purchase the firearm pursuant to the laws of the transferee's state of residence (California).

Another one that is somewhat afield of this discussion:
- California resident military members permanently stationed in AZ are more complicated (mainly because there are multiple inconsistent definitions of "resident" for the purposes of gun laws). I've actually been in this category -- same issue as C&Rs for handgun registration.

The upshot is that California's law is so restrictive that the transaction as contemplated is nearly impossible regardless of what state the Californians are in, hence my original reply. The rare exception to California's requirements is also an exception to the interstate transportation rule for the Feds.

Mssr. Eleganté
12-30-2012, 4:12 PM
...The upshot is that California's law is so restrictive that the transaction as contemplated is nearly impossible regardless of what state the Californians are in, hence my original reply. The rare exception to California's requirements is also an exception to the interstate transportation rule for the Feds.

The transaction as contemplated in the original post does not hinge on California law at all. It is illegal under federal law. Even a Nevada resident can't go to an Arizona gun show and transfer a firearm to an Arizona resident without an FFL. It has absolutely nothing to do with the laws of the buyer's or seller's State.

dwtt
12-30-2012, 5:59 PM
It's sad to see gunowners who don't even know about GCA 68, and confused about even the most basic requirements of selling a gun across state lines.

tcrpe
12-30-2012, 7:04 PM
Reading threads like this will give our lawmakers a lot of ideas.

Good job!

hawk1
12-30-2012, 8:02 PM
Reading threads like this will give our lawmakers a lot of ideas.

Good job!

No, they're already aware. They call it the gunshow loophole...

tcrpe
12-30-2012, 8:06 PM
No, they're already aware. They call it the gunshow loophole...

Oh, the idiots in Sacramento will pile on, too.

Remember, California has stricter laws that the Feds.

They will keep it that way.

fizux
12-30-2012, 9:12 PM
The transaction as contemplated in the original post does not hinge on California law at all. It is illegal under federal law. Even a Nevada resident can't go to an Arizona gun show and transfer a firearm to an Arizona resident without an FFL. It has absolutely nothing to do with the laws of the buyer's or seller's State.

Thankfully I was not answering the OP; I was addressing (and quoted) post #13, asked in response to post #10's citation to the operative language that prohibits your hypothetical NV to AZ sale.

Post #13 was focusing on the language prohibiting the sale to "any person ... does not reside in ... the State in which the transferor resides...." 18 USC § 922(a) [heavily edited].

The federal statutes repeatedly require compliance with state laws, including those of the transferee's state of residence. See, by way of example, 18 USC § 922(b)(3).

fizux
12-30-2012, 9:29 PM
Reading threads like this will give our lawmakers a lot of ideas.

Good job!

I can only hope that Sen. Yee and his sidekick mini-Yee get wrapped up in the "Californians at AZ gun show loophole" instead of focusing on an issue where they can do real damage.

saki302
12-31-2012, 12:14 AM
If you are a C&R holder, you can sell C&R guns to any individual in any state if it's legal to do so there.
That's the answer a gun show ATF agent gave a friend of mine.

Another ATF agent told me it's legal to ship a C&R gun to a different address than the one on your license. That was a total surprise to me- my guess would have been no.

-Dave

Mssr. Eleganté
12-31-2012, 12:38 AM
If you are a C&R holder, you can sell C&R guns to any individual in any state if it's legal to do so there.
That's the answer a gun show ATF agent gave a friend of mine.

That ATF agent didn't know what he was talking about.

If you are a C&R FFL you can't dispose of any firearms while you are out of state unless you are disposing of them to another FFL.

You can dispose of C&R rifles and shotguns to unlicensed out of states residents only if the transaction takes place at your licensed premises and only if the transaction follows the laws of both States.

skibuff
12-31-2012, 12:52 AM
Is it legal to take a fire arm from CA to another state and do a FTF transfer thru a FFL from the receiving partys state? (stipulating the receiving party can legally purchase the fire arm)

dieselpower
12-31-2012, 12:58 AM
Is it legal to take a fire arm from CA to another state and do a FTF transfer thru a FFL from the receiving partys state? (stipulating the receiving party can legally purchase the fire arm)

Yes, you can go to any State and sell your firearm to another person as long as a FFL conducts the transfer.