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Old 02-12-2018, 7:10 AM
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Quote:
Originally Posted by Yaworski View Post
....Can he just take that back and fill out the California paperwork....
Not as I read the applicable laws.

Leaving your gun with someone in another State is highly problematic under federal law.

The federal laws relating to the transfer of a gun from a resident of one State to a resident of another (i. e., the Gun Control Act of 1968 or GCA68) are about physical possession, not ownership. GCA68 was Congress' responding to enormous public pressure after the assassinations by gunfire of three wildly popular public figures -- JFK, RFK and MLK. The law was intended to regulate and control the interstate transfer of firearms. It was structured so that to the extent reasonably possible any transfer of possession of a gun from a resident of one State to a resident of another would have to go through an FFL.

And in the context of the concerns intended to be addressed by Congress through GCA68, it's possession and not ownership that matters. Someone who has a gun in his possession can use it, whether or not he has legal title to it.

Leaving your gun with someone is a transfer. It certainly is under federal law, and would also most likely be also considered a transfer under state laws (and it could also be an illegal transfer under state and/or federal law). That's just what "transfer" means.
  1. In general, any transfer of a firearm from a resident of one State to a resident of another must go through an FFL who will follow all usual formalities (e. g., completion of the 4473). There are a few limited, narrow, specific exceptions: if you have an appropriate federal firearms license; inheritance by will or intestate succession; or a loan (subject to a number of limitations which will be discussed in more detail below).

  2. The applicable federal statutes are: 18 USC 922(a)(3); 18 USC 922(a)(5); and 18 USC 922 (b)(3). The full texts of those statutes may be found here.

  3. The federal laws I've cited are about possession, not necessarily ownership.

    1. Possession means:
      Quote:
      1 a : the act of having or taking into control...
    2. Transfer is about possession, not ownership.

      Some definitions of "transfer" (emphasis added):


    3. Let's look at the statutes:

      1. 18 USC 922(a)(3), which provides in pertinent part (emphasis added) as follows:
        Quote:
        (a) It shall be unlawful—
        ...

        (3) for any person, ... to transport into or receive in the State where he resides ...any firearm purchased or otherwise obtained by such person outside that State,...
      2. And 18 USC 922(a)(5), which provides in pertinent part (emphasis added) as follows:
        Quote:
        (a) It shall be unlawful—
        ...

        (5) for any person ... to transfer, sell, trade, give, transport, or deliver any firearm to any person ...who the transferor knows or has reasonable cause to believe does not reside in ... the State in which the transferor resides..;

    4. Note carefully the words of those statutes. Words, like "transport", "receive", "obtained", "transfer", "give", "transport", and "deliver" do not necessarily imply ownership and include possession. They will be read and applied by a court according to their ordinary meanings. See Perrin v. United States, 444 U.S. 37 (United States Supreme Court, 1979), at 42:
      Quote:
      ...A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning...

  4. With regard to loans under GCA68, let's look at the applicable statutes again:

    1. 18 USC 922(a)(3), which provides in pertinent part (emphasis added) as follows:
      Quote:
      (a) It shall be unlawful—
      ...

      (3) for any person, ... to transport into or receive in the State where he resides ...any firearm purchased or otherwise obtained by such person outside that State,...
    2. And 18 USC 922(a)(5), which provides in pertinent part (emphasis added) as follows:
      Quote:
      (a) It shall be unlawful—
      ...

      (5) for any person ... to transfer, sell, trade, give, transport, or deliver any firearm to any person ...who the transferor knows or has reasonable cause to believe does not reside 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 ..., and

      (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;
      ..
    3. So under federal law a resident of one State may loan a gun to a resident of another State, but only temporarily and only for a lawful sporting purpose.

      1. Temporary means:
        Quote:

        : continuing for a limited amount of time : not permanent

        : intended to be used for a limited amount of time
      2. Sporting means (in this context):
        Quote:
        ...of, relating to, used, or suitable for sport...
      3. Purpose means (in this context):
        Quote:
        : the reason why something is done or used : the aim or intention of something

    4. So a court is likely to look at the "temporary loan for a lawful sporting purpose" exception to the prohibition on interstate transfers to apply when a gun is loaned so that the person it's been loaned to can engage in a specific sporting activity (i. e., a hunt, a competition, etc.) of limited duration. "Temporary" would refer to the duration of that activity. Such an interpretation would be consistent with the common meanings of the words used in the statutes and the underlying purpose (controlling interstate transfers of firearms) of GCA68.

    5. So you may go to another State where (under 18 USC 922(a)(5)), a friend may loan you a gun to, for example, go target shooting together, or an outfitter may rent you a gun for a guided hunt. But since there is no applicable "loan" exception in 18 USC 922(a)(3), a loan of a firearm may not cross state lines to the borrower's State of residence.

  5. Is there no way to store your gun in another State?

    1. Leaving a gun with someone in another State clearly raises interstate transfer problems when that person has access to the gun.

    2. One possible way to avoid the problem would be to secure the gun or guns in a locked case or similar container to which only you have the key or combination.

    3. That might avoid the transfer problem inherent in having someone store your guns, ATF has advised here that one may ship a firearm to himself in care of another person in another State.

      Specifically ATF has said (emphasis added):
      Quote:
      6. May I lawfully ship a firearm to myself in a different State?
      Any person may ship a firearm to himself or herself in the care of another person in the State where he or she intends to hunt or engage in any other lawful activity. The package should be addressed to the owner “in the care of” the out-of-State resident. Upon reaching its destination, persons other than the owner must not open the package or take possession of the firearm.

  6. Note that violations of federal law regarding interstate transfers are punishable by up to five years in federal prison and/or a fine; and since the crime is a felony one will lose his gun rights for the rest of his life.


Quote:
Originally Posted by Yaworski View Post
...Many years ago, I asked my ATF inspector (I was an FFL for 20+ years) about leaving a gun at my father-in-law's house in Florida. His opinion was that unless the intent was to leave the gun for my FIL to use, it wouldn't constitute an illegal transfer. So based on that, my son leaving his gun with me to store wouldn't be an illegal transfer. Of course, a different inspector may have a different opinion as might the AUSA....
Based on the law I"ve reviewed, I think the ATF inspector was wrong. Note that ATF inspectors aren't agency lawyers. Their opinions on legal interpretation can't bind the agency.
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