Another interstate intrafamilial off-roster handgun transfer thread

[Librarian]

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?

Not according to the exceptions in CA Penal Code. But, the DOJ inspectors have been advising FFLs that 1-in-30 does not apply to interstate intrafamilial transfers, and doing what the inspectors tell you to do seems to work out best.

[GunEnthusiast1]

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

It does violate CA law. Running an intra-familial transfer through an FFL violates PC 27875 that specifically exempts these transfers from an FFL.

The common objection I see is that everyone assumes PC 27875 doesn't apply for interstate transfers. But that's not true at all. Nothing in PC 27875 says anything about interstate transfers. Nothing in PC 27875 makes an exception-to-an-exception for interstate transfers.

In fact, it's probably illegal (unconstitutional) for California to make any laws regarding inter-state transfers considering it's the exclusive jurisdiction of the US Congress with the Commerce Clause. So even in principle, PC 27875 cannot have any special interpretations for interstate transfers. The transfer MUST apply equally whether coming from in-state or out-of-state.

[To give an example. CA taxes everything at 7%. This 7% tax MUST apply equally whether the goods are coming from inside the state or outside. CA cannot make a special rule for out-of-state goods -- that would violate the Commerce Clause that only Congress can regulate.]

If we ignored federal law, interstate intra-familial transfers would be exempt from FFLs.

edit: I think the huge confusion is that this process DOES in fact require an FFL (due to the federal laws) so people just assume that PC 27875 has some special inter-state exception or it must be read to exclude inter-state transfers. I mentioned above, that's not true. Federal preemption is the reason PC 27875 doesn't apply.

[GunEnthusiast1]

But, the DOJ inspectors have been advising FFLs that 1-in-30 does not apply to interstate intrafamilial transfers, and doing what the inspectors tell you to do seems to work out best.

If I go to an FFL, how can I communicate this to them? Do I ask them to call the CA DOJ?

[Librarian]

If we ignored federal law, interstate intra-familial transfers would be exempt from FFLs.

... at the cost of 5 years in Federal prison and/or $10,000 fine, for everyone involved.

We don't get to ignore Federal law.

States can add things over and above Federal law - but they can't go lower.

[GunEnthusiast1]

We don't get to ignore Federal law.

Sorry, this is a hugely confusing subject. I'm not saying to ignore Federal law.

I'm saying that there's no exception to PC 27875 for interstate transfers. You are technically violating CA law requiring FFL processing.

The reason that FFLs are required is due to federal law. So you must only follow federal law (BG check and form 4473). But the BG check apparently necessitates DROS.

There's a question of whether CA's process in requiring DROS (at least how their system is implemented) violates their own laws in PC 27545.

[ugimports]

If I go to an FFL, how can I communicate this to them? Do I ask them to call the CA DOJ?

Yes or patronize one that knows how to do this. We get referrals from many bay area FFLs for these types of transactions.

Sent from my SM-G965U using Tapatalk

[Librarian]

Sorry, this is a hugely confusing subject. I'm not saying to ignore Federal law.

I'm saying that there's no exception to PC 27545 for interstate transfers. You are technically violating CA law requiring FFL processing.

The reason that FFLs are required is due to federal law. So you must only follow federal law (BG check and form 4473). But the BG check apparently necessitates DROS.

There's a question of whether CA's process in requiring DROS (at least how their system is implemented) violates their own laws in PC 27545.

You appear to believe their are different 'kinds' of transfer processes - one for interstate and one for in-state. Not so. The CA PC I linked to applies to all transfers through CA FFLs.

And, instate intrafamily transfers are exempt from using the FFL - not forbidden, so it is by no means violating CA law to process such a transfer through a CA FFL. Granted, that wouldn't make a lot of sense, on a number of grounds, but it is not forbidden.

Your real complaint, however, should be addressed to the CA Legislature for creating this mess.

[GunEnthusiast1]

You appear to believe their are different 'kinds' of transfer processes - one for interstate and one for in-state. Not so. The CA PC I linked to applies to all transfers through CA FFLs.

You do not cite to a more general law to trump a more specific, more applicable law. In this case, the most specific, most applicable law is PC 27875.

edit: under CA law, there is only one kind of process for these transfers, which is none (except to fill out the BOF form).
under federal law, there is only a process for inter-state transfers. So in a way, there are two separate processes depending on inter or intra-state.

And, instate intrafamily transfers are exempt from using the FFL - not forbidden, so it is by no means violating CA law to process such a transfer through a CA FFL. Granted, that wouldn't make a lot of sense, on a number of grounds, but it is not forbidden.

So the government bodies can do anything as long as it's not forbidden.

I'm sure we fought against and broke free from this tyranny over 200 hundred years ago.

Especially for enumerated rights (which gun ownership is under 2nd amendment), the government requires authorizing legislation in order to submit someone to process.

For this case, asking in-state intrafamilial transfers to submit to process (do DROS or use an FFL) would be forbidden, illegal, unconstitutional because it runs afoul of the due process clause (among other issues). [There is no authorizing legislation requiring DROS/FFL for in-state transfers.]

For interstate intrafamilial transfers, there is authorizing legislation under federal law 18 U.S.C. 921-931. This code is enacted pursuant to the Commerce Clause (power to regulate commerce between the states). It regulates guns so it also needs to pass constitutional muster -- something like "intermediate scrutiny" or "strict scrutiny" where the law is narrowly tailored or the least restrictive means possible to achieve the compelling government objective of keeping guns away from criminals. I think the BG check (at least the way it's done with NICS) and form 4473 do adhere to these rules.

Your real complaint, however, should be addressed to the CA Legislature for creating this mess.

I'm actually glad there is an exception for intrafamilial transfers. I do have a complaint with the federal background check that requires CA state involvement.

[Librarian]

For this case, asking in-state intrafamilial transfers to submit to process (do DROS or use an FFL) would be forbidden, illegal, unconstitutional because it runs afoul of the due process clause (among other issues). [There is no authorizing legislation requiring DROS/FFL for in-state transfers.]

I seem to have been too opaque.

Current CA law allows some intrafamilial gun transfers to skip using an FFL.

No CA law prohibits similarly related family members from transferring through an FFL, though that would not make a lot of sense.

And CA Legislature could repeal PC 27875.

Federal law requires ALL interstate transfers among unlicensed individuals to use an FFL; CA's special treatment for some in-CA, properly related as specified by law, residents is a nice thing, outside the reach of the Feds, just as CA's requirement that substantially all gun transfers inside CA use a CA FFL is outside the reach of Federal law, and some other states' allowance off gun transfers among their residents without an FFL is of no Federal concern.

CA is permitted to make and enforce laws against its residents and for its state-licensed gun dealers. Those laws may be illogical, unwise, or fattening, but they're part of state police power and not, in general, unconstitutional.

Leaving aside for the moment the current legislative and court behaviors in CA re anything to do with guns, this situation you decry has been in place since 1991. Do you really suppose you have discovered The Key To Everything 29 years later?

[Milsurp1]

Practically speaking it would take a declaratory judgment from a court to resolve the question. Who wants to fund that?

[GunEnthusiast1]

Practically speaking it would take a declaratory judgment from a court to resolve the question. Who wants to fund that?

That is the problem.

Also, are there problems with potentially stirring the hornets' nest, and the legislature could change this law as Librarian suggested.

[mcgill]

The table on page 5 of "California Firearms Laws Summary" 2016, clearly shows One Handgun per 30 Days Limit does NOT apply to Intra-familial Transfers. The table does not stipulate whether they are interstate or intrastate. And I just received correspondence from CA DOJ stating 1-in-30 does not apply to Interstate or Intrastate Intra-familial transfer.