Retired LEO and off list handgun clarification

[yzErnie]

I have a recently retired LEO who wants to purchase an off-list handgun. When I told him that once he retires he is no longer exempt from the list he insists he can still purchase an off-list hand gun based upon the Title 18 comments on the back of his retired ID card. I called CaDoJ this afternoon and the lady there was not really much help.

I just want to confirm my opinion is correct...that a retired LEO has no exemption to the safe handgun list any longer.

[hk-p2000]

thats kind of interesting, just to know if they still qualify.

[Blademan21]

Hey Ernie
I asked the same question at ProForce for a retired CHP friend of mine. I was told he no longer is able to purchase off list handguns since he is retired. Might call and ask to double check.

[code33]

12125. (a) Commencing January 1, 2001, any person in this state who manufactures or causes to be manufactured, imports into the state for sale, keeps for sale, offers or exposes for sale, gives, or lends any unsafe handgun shall be punished by imprisonment in a county jail not exceeding one year.
(b) This section shall not apply to any of the following:
(4) The sale or purchase of any pistol, revolver or other firearm capable of being concealed upon the person, if the pistol, revolver, or other firearm is sold to, or purchased by, the Department of Justice, any police department, any sheriff's official, any marshal's office, the Youth and Adult Correctional Agency, the California Highway Patrol, any district attorney's office, or the military or naval forces of this state or of the United States for use in the discharge of their official duties. Nor shall anything in this section prohibit the sale to, or purchase by, sworn members of these agencies of any pistol, revolver, or other firearm capable of being concealed upon the person.

[Librarian]

I have a recently retired LEO who wants to purchase an off-list handgun. When I told him that once he retires he is no longer exempt from the list he insists he can still purchase an off-list hand gun based upon the Title 18 comments on the back of his retired ID card. I called CaDoJ this afternoon and the lady there was not really much help.

I just want to confirm my opinion is correct...that a retired LEO has no exemption to the safe handgun list any longer.

You have that right. Retired LEO are no longer exempt as LEO. It's possible that an individual might be exempt under some other reason, but retired LEO is no longer sworn, no longer a member of an agency.

[jtmkinsd]

I have a recently retired LEO who wants to purchase an off-list handgun. When I told him that once he retires he is no longer exempt from the list he insists he can still purchase an off-list hand gun based upon the Title 18 comments on the back of his retired ID card. I called CaDoJ this afternoon and the lady there was not really much help.

I just want to confirm my opinion is correct...that a retired LEO has no exemption to the safe handgun list any longer.

I believe the reason you got no help from DOJ is because Title 18 supersedes state law

Here is my take on it:

Title 18 is a Federal law which does supersede any state law:

(a) Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified retired law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b).

Being a Federal law superseding state law, we must take the Federal definition of a "firearm" (concealable in this case). So the list would not apply to retired LE. I do DROS off list handguns for retired LE under this premise. I'm NOT saying it is 100% the way it is, just an interpretation which I believe to be sound. And I haven't run into any problems in the past over this.

[SVT-40]

Where does Title 18 mention anything about "purchasing"?

The federal law does supersede state laws regarding "carrying".

But it is mute to anything about superseding state laws regarding the purchase of a concealable firearm.

Using the same logic would then a retired or active LEO have to wait the required ten days to pick up his hand gun? Or would the state of California be forced to preform a telephonic NICS and allow the retired or active LEO have the firearm without waiting the ten days?

I don't think so.

[jtmkinsd]

Where does Title 18 mention anything about "purchasing"?

The federal law does supersede state laws regarding "carrying".

But it is mute to anything about superseding state laws regarding the purchase of a concealable firearm.

Using the same logic would then a retired or active LEO have to wait the required ten days to pick up his hand gun? Or would the state of California be forced to preform a telephonic NICS and allow the retired or active LEO have the firearm without waiting the ten days?

I don't think so.

(d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b).

The law states LE can carry when retired...and what they can carry. There is no mention of waiting periods and such so the state law for that portion does apply. As well as the 1 in 30 day rule, high cap mag law, yadda yadda ya.

[Ron-Solo]

I think Ernie is right, that's why I just DROS'd another LCP today and I'm collecting all the hicaps I think I might need because I'm retiring in March.

My local LE Gun Store agrees with Ernie and ProForce on this one. Carry and purchase are not the same thing.

jtmkinsd, while I like your way of thinking, I think you may be treading on dangerous ground.

[jtmkinsd]

I think Ernie is right, that's why I just DROS'd another LCP today and I'm collecting all the hicaps I think I might need because I'm retiring in March.

My local LE Gun Store agrees with Ernie and ProForce on this one. Carry and purchase are not the same thing.

jtmkinsd, while I like your way of thinking, I think you may be treading on dangerous ground.

I understand the hesitancy on this issue...but the key is in what I got from DOJ. Just like Ernie I called many moons ago, and got the run around...A call to ATF got me a little more information (I think both agencies are scared of the other...lol) but the way the conversations ended up, Title 18 was the overriding authority and the language is fairly clear...I understand the risk...but I believe this one to be very defensible

[tenpercentfirearms]

Title 18 is a Federal law which does supersede any state law:

(a) Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified retired law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b).

Being a Federal law superseding state law, we must take the Federal definition of a "firearm" (concealable in this case). So the list would not apply to retired LE. I do DROS off list handguns for retired LE under this premise. I'm NOT saying it is 100% the way it is, just an interpretation which I believe to be sound. And I haven't run into any problems in the past over this.

Am I the only one who is not following the logic here? First, the very first sentence is "Notwithstanding any other provision of the law of any state". The State of California says they are not exempt from the list, so that there is your withstanding any other provision of the law.

Second, this authorizes them to carry a concealed firearm that has been shipped or transported in interstate commerce. I am not following how this authorizes them to purchase an handgun that is not on the approved list of handguns for sale. If you are implying that the language about being shipped or transported in interstate commerce authorizes them to conduct interstate commerce in firearms, I believe you are 100% wrong. The only reason that language is in there is Congress has no authority to tell the states what to do. However, Congress can regulate interstate commerce. So if a firearm is transported or shipped across state lines, then Congress very loosely believes it is now their business. So they are saying that federally speaking, such firearms are legal to carry concealed. If you purchase and keep a handgun that was manufactured, bought, and is kept in your home state of California, then this section does not apply because the handgun was never involved in interstate commerce. As soon as you take it to Nevada with you, then it is legal for retired LEO to carry it concealed.

Seriously, you are going to have to do a much better job of explaining your "soundness" on this one as it doesn't make any sense to me at all. If it were me, I would want to have a much clearer argument than this. You might even want to bounce it off your lawyer.

[glockman19]

I have a recently retired LEO who wants to purchase an off-list handgun. When I told him that once he retires he is no longer exempt from the list he insists he can still purchase an off-list hand gun based upon the Title 18 comments on the back of his retired ID card. I called CaDoJ this afternoon and the lady there was not really much help.

I just want to confirm my opinion is correct...that a retired LEO has no exemption to the safe handgun list any longer.

YES you are correct. He is no longer a Sworn Officer. No Exemption. Now if he were to continue as a reserve he might still be sworn.

I think Ernie is right, that's why I just DROS'd another LCP today and I'm collecting all the hicaps I think I might need because I'm retiring in March.

My local LE Gun Store agrees with Ernie and ProForce on this one. Carry and purchase are not the same thing.

jtmkinsd, while I like your way of thinking, I think you may be treading on dangerous ground.

Thank you.

[yzErnie]

Thanks fellas. I was confident I was correct but needed to get the opinions of some of the experts here.

Cali State rules do in many ways and forms trump the federal rules. In any other state than this one it wouldn't even be an issue but we have to deal with what we have here.

[Librarian]

I believe the reason you got no help from DOJ is because Title 18 supersedes state law

Here is my take on it:

Title 18 is a Federal law which does supersede any state law:

(a) Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified retired law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b).

Being a Federal law superseding state law, we must take the Federal definition of a "firearm" (concealable in this case). So the list would not apply to retired LE. I do DROS off list handguns for retired LE under this premise. I'm NOT saying it is 100% the way it is, just an interpretation which I believe to be sound. And I haven't run into any problems in the past over this.

18 USC 926B is, on its face, only about carry.

Before acting on any different interpretation, I think I would consult my attorney. A real legal opinion you pay for is the one most likely to be safe.

[jtmkinsd]

Am I the only one who is not following the logic here? First, the very first sentence is "Notwithstanding any other provision of the law of any state". The State of California says they are not exempt from the list, so that there is your withstanding any other provision of the law.

Second, this authorizes them to carry a concealed firearm that has been shipped or transported in interstate commerce. I am not following how this authorizes them to purchase an handgun that is not on the approved list of handguns for sale. If you are implying that the language about being shipped or transported in interstate commerce authorizes them to conduct interstate commerce in firearms, I believe you are 100% wrong. The only reason that language is in there is Congress has no authority to tell the states what to do. However, Congress can regulate interstate commerce. So if a firearm is transported or shipped across state lines, then Congress very loosely believes it is now their business. So they are saying that federally speaking, such firearms are legal to carry concealed. If you purchase and keep a handgun that was manufactured, bought, and is kept in your home state of California, then this section does not apply because the handgun was never involved in interstate commerce. As soon as you take it to Nevada with you, then it is legal for retired LEO to carry it concealed.

Seriously, you are going to have to do a much better job of explaining your "soundness" on this one as it doesn't make any sense to me at all. If it were me, I would want to have a much clearer argument than this. You might even want to bounce it off your lawyer.

Notwithstanding = In spite of, or regardless of any other state law. If it's so clear cut, just give a call to DOJ and see how clear it is. I've had face to face discussions with both ATF and DOJ agents when they've been to the shop. From those discussions I've come to the conclusions I have on this issue. As I've explained, I've been transferring off-roster concealeable firearms to retired LE since the law passed in 2004, and haven't had a problem in that time. Your interpretation gives CA the abilitity to control what a CA resident buys in another state...which is a little far reaching IMHO. Nowhere in CA law does it say it is illegal for anyone to purchase an off-list handgun outside California...I don't need California's permission to buy anything outside CA. The provision allows the interstate shipping of firearms for concealable carry in CA for retired LE...and as I said, Federal law, superseding state law, I use the Federal definition of a firearm. In 18 USC 926B there is clear language of what a "firearm" is not...so what is a firearm is equally clear.

Hopefully, none of this is going to matter in the near future. But as I said, although I'm comfortable enough with my interpretation to process these transactions, as with any part of gun law, it's up to everyone individually as to what they want to do. Legal "opinions" from attorneys are a waste of money for the most part. If something were to happen where I needed an attorney, I'd be paying for a defense in any case.

As an aside, one of the retired LE I've transfered off-list carry guns to is also a criminal defense attorney.