Another interstate intrafamilial off-roster handgun transfer thread

[GunEnthusiast1]

There seems to be so much confusion over this process.

First, there are two specific laws (one California, one federal) that apply to this particular situation:

• California Penal Code 27875 exempts these transfers from requiring an FFL. California has a form (BOF 4544A) for this process.
• The federal law 18 U.S.C. 921-931 (27 CFR Part 478) governs interstate transfer of firearms. An FFL is required, contrary to CA code. ATF has form 4473 for this (and a background check).

Regardless of what California says, due to federal preemption, the federal code MUST be followed. Federal law overrides state law [when there is a conflict of laws as here].

So the FFL dealer follows the federal rules under 27 CFR Part 478 (federal law) with ATF (federal agency) guidelines. In other words, the dealer conducts a background check consistent with ATF rules and keeps a record of the 4473 form (federal law form). The feds are happy. The process is complete. You send the customer home with their gun(s). There are no more rules.

Why do dealers, on their own initiative, impose CALIFORNIA rules, force submission of DROS (a CA regulation), with the 10-day wait (CA rule), and 1-in-30 day limit (CA rule). We JUST established that federal law preempts state law, so you apply federal law, NOT state law.

If you do want to apply state law, then California Penal Code 27875 is the most applicable, most relevant statute, so (after BG check and form 4473) the dealer tells the customer to go home and fill out BOF 4544A.

Again, the federal law DOES NOT require a 10 day wait period, no 1-in-30 day limit. For this situation, the California law (PC 27875 ) ALSO DOES NOT require a 10 day wait period, no 1-in-30 handgun limit.

Why do FFLs insist on arbitrarily enforcing a 10 day wait period or the 1-in-30 day limit when these do not apply to this transaction under either federal law or California law?

What am I missing; how is my interpretation of the process wrong?

[GunEnthusiast1]

One note about CA DOJ representative discussions with FFL dealers.

Apparently the CA DOJ has told dealers all you need is BOF 4544A. So, the CA DOJ is THE authority on interpretations of the California penal code. They are absolutely right. As far as California and the CA DOJ are concerned, all that's needed for this type of transfer is form BOF 4544A.

The CA DOJ does not enforce or interpret federal code. That's the job of the ATF.

After the dealer meets the federal requirements (that have nothing to do with the CA DOJ or California) of the BG check and ATF form 4473, there are no more California requirements for the FFL dealer. Send the customer home and tell them to fill out form BOF 4544A.

[ugimports]

One note about CA DOJ representative discussions with FFL dealers.

Apparently the CA DOJ has told dealers all you need is BOF 4544A. So, the CA DOJ is THE authority on interpretations of the California penal code. They are absolutely right. As far as California and the CA DOJ are concerned, all that's needed for this type of transfer is form BOF 4544A.

The CA DOJ does not enforce or interpret federal code. That's the job of the ATF.

After the dealer meets the federal requirements (that have nothing to do with the CA DOJ or California) of the BG check and ATF form 4473, there are no more California requirements for the FFL dealer. Send the customer home and tell them to fill out form BOF 4544A.

How does a CA dealer do a background check without a DROS? They can't. I believe that answers the rest of your questions.

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[GunEnthusiast1]

How does a CA dealer do a background check without a DROS? They can't. I believe that answers the rest of your questions.

NICS?

https://www.fbi.gov/services/cjis/nics

NICS Process

When a person tries to buy a firearm, the seller, known as a Federal Firearms Licensee (FFL), contacts NICS electronically or by phone. The prospective buyer fills out the ATF form, and the FFL relays that information to the NICS. The NICS staff performs a background check on the buyer. That background check verifies the buyer does not have a criminal record or isn't otherwise ineligible to purchase or own a firearm. Since launching in 1998, more than 300 million checks have been done, leading to more than 1.5 million denials.

[ugimports]

[QUOTE=GunEnthusiast1;24800595]

How does a CA dealer do a background check without a DROS? They can't. I believe that answers the rest of your questions.



NICS?

https://www.fbi.gov/services/cjis/nics

NICS Process



When a person tries to buy a firearm, the seller, known as a Federal Firearms Licensee (FFL), contacts NICS electronically or by phone. The prospective buyer fills out the ATF form, and the FFL relays that information to the NICS. The NICS staff performs a background check on the buyer. That background check verifies the buyer does not have a criminal record or isn't otherwise ineligible to purchase or own a firearm. Since launching in 1998, more than 300 million checks have been done, leading to more than 1.5 million denials.

We can't use that. We can only use our state system.

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[GunEnthusiast1]

So technical limitations prevent implementation of California state laws.

I feel like there's something really wrong with this situation.

edit: why does the DROS electronic system not have some rule for intra-familial transfers that will implement the laws?

Or why doesn't CA allow instant background checks without the 10-day wait so that PC 27875 can be implemented?

[lmcc0072]

With most things, I believe that Federal law must be followed at a minimum and the individual state laws can go above and not below the Federal standard.

While marijuana is legal in California, dispensaries don’t put their money in banks as the Feds can seize those assets as illegally obtained.

[ugimports]

So technical limitations prevent implementation of California state laws.

I feel like there's something really wrong with this situation.

edit: why does the DROS electronic system not have some rule for intra-familial transfers that will implement the laws?

Or why doesn't CA allow instant background checks without the 10-day wait so that PC 27875 can be implemented?

Well..its not technical. Feds say you must use state system if it exists. You are a lawyer. Do you really need to ask why CA sucks? Well until someone sues why change? They are a monopoly and have customers that can't go anywhere no matter how much they suck.

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[GunEnthusiast1]

> I believe that Federal law must be followed at a minimum and the individual state laws can go above and not below the Federal standard.

Don't think that's exactly how federal preemption works.

> While marijuana is legal in California, dispensaries don’t put their money in banks as the Feds can seize those assets as illegally obtained.[/QUOTE]

Marijuana was and is illegal at the federal level. Due to federal preemption, what California does in allowing its use is not permissible. If you use/buy/sell, you're still potentially committing federal felonies. It's just the feds not enforcing the laws.

Federal preemption of California's authorization of marijuana has already been tested and decided by the SCOTUS (Gonzales v. Raich in 2005). Federal preemption is so well-established that the states (including CA) will lose every time if the Feds decide to sue.

[GunEnthusiast1]

Well until someone sues why change?

One of these days we'll compel the state to follow the laws.

[ronlglock]

[Librarian]

I'm a lawyer, but my practice is unrelated to gun rights, criminal law, con law, federal preemption, etc.

Anyways, I've looked through all the discussions on this particular issue, and this is my analysis. Feel free to tell me where my analysis is wrong (I very well could be).

There seems to be so much confusion over this process.

First, there are two specific laws (one California, one federal) that apply to this particular situation:

• California Penal Code 27875 exempts these transfers from requiring an FFL. California has a form (BOF 4544A) for this process.
• The federal law 18 U.S.C. 921-931 (27 CFR Part 478) governs interstate transfer of firearms. An FFL is required, contrary to CA code. ATF has form 4473 for this (and a background check).

Regardless of what California says, due to federal preemption, the federal code MUST be followed. Federal law overrides state law [when there is a conflict of laws as here].

So the FFL dealer follows the federal rules under 27 CFR Part 478 (federal law) with ATF (federal agency) guidelines. In other words, the dealer conducts a background check consistent with ATF rules and keeps a record of the 4473 form (federal law form). The feds are happy. The process is complete. You send the customer home with their gun(s). There are no more rules.

Why do dealers, on their own initiative, impose CALIFORNIA rules, force submission of DROS (a CA regulation), with the 10-day wait (CA rule), and 1-in-30 day limit (CA rule). We JUST established that federal law preempts state law, so you apply federal law, NOT state law.

If you do want to apply state law, then California Penal Code 27875 is the most applicable, most relevant statute, so (after BG check and form 4473) the dealer tells the customer to go home and fill out BOF 4544A.

Again, the federal law DOES NOT require a 10 day wait period, no 1-in-30 day limit. For this situation, the California law (PC 27875 ) ALSO DOES NOT require a 10 day wait period, no 1-in-30 handgun limit.

Why do FFLs insist on arbitrarily enforcing a 10 day wait period or the 1-in-30 day limit when these do not apply to this transaction under either federal law or California law?

What am I missing; how is my interpretation of the process wrong?

Principally, once the gun hits the CA FFL, the CA law imposes those obligations on the CA FFL.

Penal Code - PEN

PART 6. CONTROL OF DEADLY WEAPONS [16000 - 34370] ( Part 6 added by Stats. 2010, Ch. 711, Sec. 6. )

TITLE 4. FIREARMS [23500 - 34370] ( Title 4 added by Stats. 2010, Ch. 711, Sec. 6. )

DIVISION 6. SALE, LEASE, OR TRANSFER OF FIREARMS [26500 - 28490] http://leginfo.legislature.ca.gov/fa...r=1.&article=1.

If they do not do those things, they risk loss of license and jail.

[GunEnthusiast1]

Principally, once the gun hits the CA FFL, the CA law imposes those obligations on the CA FFL.

Federal preemption (FP) is a special case, so you wont get the normal operation of law.

Requiring an intra-familial transfer to pass through an FFL is already a violation of California Penal Code 27875, which specifically exempts these transfers from an FFL. So you're breaking California law already. But again, FP mandates this result. You'll be applying federal law that overwrites state law.

There's also a priniciple in FP that says the federal rules should be exercised in the least restrictive means possible.

[GunEnthusiast1]

I've resigned myself to needing the DROS process. But can you at least transfer more than 1 handgun and avoid the 1-in-30 limit?

[Librarian]

Federal preemption (FP) is a special case, so you wont get the normal operation of law.

Requiring an intra-familial transfer to pass through an FFL is already a violation of California Penal Code 27875, which specifically exempts these transfers from an FFL. So you're breaking California law already. But again, FP mandates this result. You'll be applying federal law that overwrites state law.

There's also a priniciple in FP that says the federal rules should be exercised in the least restrictive means possible.

Failure to run an interstate transfer through an FFL is a violation of 18 USC 922; that does not violate CA law.

FFLs must follow both Federal and state laws. Look at 18 USC 922 (b)(3): it's a slightly different question than here, but FedLaw has the concept of also obeying State laws.