Unworkable (was:Unusual) Interstate transfers

[Librarian]

You are making assumptions which are not correct. If the people involved are residents of different states, then it has to go through a FFL. CA requires that if a FFL does the transaction, a DROS has to be submitted. Non-CA FFLs can't submit the DROS. This means it has to go through a CA FFL (including perhaps a Federal requirement). If it goes through a CA FFL, then a DROS has to be submitted.

The Feds say that it can go through any FFL AS LONG AS IT FOLLOWS THE LAW IN BOTH STATES. It HAS to go through a FFL and HAS to follow the law in both states, which means that a CA DROS has to be submitted. Not using a FFL works under CA law, but NOT under Federal law. You can not separate the Federal requirement that it go through a FFL and following the laws of each state into claiming that it does not have to go through a FFL. BTW, the Federal law is actually talking about a FFL in another state selling a firearm, NOT transfers between people.

But let's backup a bit and stay ONLY in CA. You have two CA residents, a mother and daughter (over 18). The mother wants to give her daughter a firearm (it does not matter the type of firearm in this example). The mother COULD just give a long gun to the daughter and the mother could give a handgun to the daughter, if the daughter fills out the intrafamilial transfer form, BUT for some unknown reason the mother wants to have the transfer go through a CA FFL. The CA FFL explains that the transfer does not have to go through a FFL, but the mother insists that is how she wants to do it. In this case, the FFL has to fill out the 4473 AND submit the DROS because it is going through the FFL. It does not matter that it does not have to be done this way, but if it is, then the FFL has to follow the required procedures.

I have read the first post, several times. Please carefully read what I am saying.

This is on hold because of the letter posted just above, but we seem to have some kind of major disconnect.

You're correct - if someone takes a firearm to transfer through a CA FFL, whether CA law requires it or not, then the CA FFL has to follow CA law. That means DROS, on top of the Federal 3373, the waiting period, all that stuff.

But we're talking about an intrafamilial transfer of long guns.

CA law does NOT require using an FFL for that transfer. If Dad gives to Son a rifle, no paperwork is required by CA - that IS following CA law.

For some small number of appropriately related people, where the receiving party is a CA resident and the firearm transferred is a long gun, it is following CA law to NOT use a CA FFL.

Do you agree? This is the first critical point.
(ETA- let me build this up brick by brick - please do not jump ahead.)

[kemasa]

There is NO intrafamilial transfer of firearms under Federal law.

As I said, while CA law allows for the transfer of intrafamilial firearms without going through a FFL, as you said, Federal law requires the transfer of firearms between residents of different states to go through a FFL. For a FFL, there is NO intrafamilial transfers. The Federal law you are talking about is if the FFL follows the law in both states, but since there is NO intrafamilial transfers as far as FFLs are concerned, that does not apply and has to be ignored.

It is not CA law to NOT use a CA FFL, the law allows for an exemption to the requirement of going through a FFL for intrafamilial transfers.

For some small number of appropriately related people, where the receiving party is a CA resident and the firearm transferred is a long gun, it is following CA law to NOT use a CA FFL.

I do agree with this aspect. You don't want me to jump ahead, but there is a bridge out in your argument due to the Federal requirement. If the firearm goes through a FFL, even out of state, then it is no longer an intrafamilial transfer, so with your next steps you have to keep it out of the hands of a FFL.

[kemasa]

Ok, speaking of bricks, let see if you agree or disagree with the following statements:

1) With respect to FFLs (CA or not), intrafamilial transfers do not exist, with a CA exception related to the certified list.

2) Federal law prohibits the transfer of firearms between residents of different states without going through a FFL (include for this discussion C&R FFL holders).

3) CA law requires a FFL to submit a DROS for firearm transactions.

Do you agree or disagree with the above items?

[Librarian]

It is not CA law to NOT use a CA FFL, the law allows for an exemption to the requirement of going through a FFL for intrafamilial transfers.

Please distinguish between the cases - I see them as the same thing, that is

there is an exception in the CA law that requires using an FFL for transfers for intrafamilial transfers, as defined

and

it is CA law that an intrafamilial transfer need not use an FFL

and

it is following CA law to not use an FFL for intrafamilial transfers

all mean the same thing to me.

so with your next steps you have to keep it out of the hands of a FFL.

Not the next step I want to take, but we'll get there. Please let me lead the dance here. I want to find out exactly which step you will not accept, to find out my error.

Next:....

We know that CA allows intrafamilial transfers from out of state givers/sellers.

We know this because intrafamilial transfers of handguns are exempt from the Roster requirement.

We know that from the law that makes the exemption, and from the fact that CA FFLs can enter 'intrafamilial transfer' as the exemption from the Roster. (Or, something like that - not being an FFL, I don't have access to DROS software, so all I "know" is what I have read on Calguns.)

We know THAT because an interstate transfer of handguns is required, by federal law, to go through a FFL in the state of residence of the receiver, and CA FFLs have successfully transferred off-Roster handguns from out of state intrafamilial givers.

So, you already say you accept

"For some small number of appropriately related people, where the receiving party is a CA resident and the firearm transferred is a long gun, it is following CA law to NOT use a CA FFL. "

Do you agree with

"California recognizes intrafamilial transfers from out of state givers."?

[kemasa]

Please distinguish between the cases - I see them as the same thing, that is

there is an exception in the CA law that requires using an FFL for transfers for intrafamilial transfers, as defined

and

it is CA law that an intrafamilial transfer need not use an FFL

and

it is following CA law to not use an FFL for intrafamilial transfers

all mean the same thing to me.

You have to understand the law and the way it is written to see what the difference it. A law was created to make it illegal to transfer a firearm between people without going through a FFL. As part of the law, there are exceptions (quite a few actually). If the law did not exist, then it would be legal to do the transfer without a FFL, like it is in many states. So, you are not actually following the law to not use a FFL for an intrafamilial transfer, you are just not required to go through a FFL.

Not the next step I want to take, but we'll get there. Please let me lead the dance here. I want to find out exactly which step you will not accept, to find out my error.

Next:....

We know that CA allows intrafamilial transfers from out of state givers/sellers.

Not quite accurate. You do want to be accurate, don't you? CA law does not speak of transfers from out of state, only intrafamilial transfers. There is no distingishing between the two with respect to CA law. This means that CA allows for intrafamilial transfers.

We know this because intrafamilial transfers of handguns are exempt from the Roster requirement.

Well, to be accurate, the CA DOJ allows for it, but if you look at the law, there is actually no exemption. The roster requirement applies to FFLs only. The CA DOJ has told FFLs how to do intrafamilial transfers from out of state, but in looking at the CA PC, this is really not supported. The law allows for the exemption of going through a FFL, with the requirement that the proper form be filled out, but this is only a CA exemption. In practice, the only thing it allows is an exemption to the roster requirement.

We know that from the law that makes the exemption, and from the fact that CA FFLs can enter 'intrafamilial transfer' as the exemption from the Roster. (Or, something like that - not being an FFL, I don't have access to DROS software, so all I "know" is what I have read on Calguns.)

That is what FFLs are told they can do, again, not supported by the law, at least not that I can find.

We know THAT because an interstate transfer of handguns is required, by federal law, to go through a FFL in the state of residence of the receiver, and CA FFLs have successfully transferred off-Roster handguns from out of state intrafamilial givers.

That is correct.

So, you already say you accept

"For some small number of appropriately related people, where the receiving party is a CA resident and the firearm transferred is a long gun, it is following CA law to NOT use a CA FFL. "

Do you agree with

"California recognizes intrafamilial transfers from out of state givers."?

No, only that "California recognizes intrafamilial transfers" and with respect to out of state givers only to the roster, not to any of the other requirements, such as the DROS.

[Librarian]

Full stop - I'm wrong, doesn't work.

Regardless of other reasoning, here's the deal breaker.

It's 27 CFR 478.29(b)

[Code of Federal Regulations]
[Title 27, Volume 3]
[Revised as of April 1, 2010]
From the U.S. Government Printing Office via GPO Access
[CITE: 27CFR478.29]

[Page 32]

TITLE 27--ALCOHOL, TOBACCO PRODUCTS, AND FIREARMS

CHAPTER II--BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES,
DEPARTMENT OF JUSTICE

PART 478_COMMERCE IN FIREARMS AND AMMUNITION--Table of Contents

Subpart C_Administrative and Miscellaneous Provisions

Sec. 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
Sec. 478.96(c) and
(c) Shall not apply to the transportation or receipt of a firearm
obtained in conformity with the provisions of Sec. Sec. 478.30 and
478.97.

[T.D. ATF-270, 53 FR 10493, Mar. 31, 1988]

The hope had been to allow receipt from a private individual (e.g.'dad') but while the USC law - 18 USC 922 (b)(3) states

(A) shall not
apply to the sale or delivery of any rifle or shotgun to a
resident of a State other than a State in which the licensee's
place of business is located if the transferee meets in person
with the transferor to accomplish the transfer, and the sale,
delivery, and receipt fully comply with the legal conditions of
sale in both such States

the CFR restricts that to transferors who are licensed.

That confirms the conclusion of the BATF letter follow-up call to BATF posted.

Thanks for the exercise, kemasa; I do have one tiny update for your last post.

[Librarian]

You have to understand the law and the way it is written to see what the difference it. A law was created to make it illegal to transfer a firearm between people without going through a FFL. As part of the law, there are exceptions (quite a few actually). If the law did not exist, then it would be legal to do the transfer without a FFL, like it is in many states. So, you are not actually following the law to not use a FFL for an intrafamilial transfer, you are just not required to go through a FFL.

That's a little bit different from, say, 'eating peanut butter'. There's no CA law about that (at least I hope not!) so there is no law to follow.

But if there is a specific exemption, is not using that exemption correctly "following the law"?

Not quite accurate. You do want to be accurate, don't you? CA law does not speak of transfers from out of state, only intrafamilial transfers. There is no distingishing between the two with respect to CA law. This means that CA allows for intrafamilial transfers.

That's true. There is no explicit mention of out of state sellers in the law; being silent on the subject is different from 'allowing' explicitly.

Well, to be accurate, the CA DOJ allows for it, but if you look at the law, there is actually no exemption. The roster requirement applies to FFLs only. The CA DOJ has told FFLs how to do intrafamilial transfers from out of state, but in looking at the CA PC, this is really not supported. The law allows for the exemption of going through a FFL, with the requirement that the proper form be filled out, but this is only a CA exemption. In practice, the only thing it allows is an exemption to the roster requirement.

Ah, there IS an explicit exemption from the Roster for intrafamilial and OPLAW type transfers - it's PC 12132

This chapter [Chapter 1.3: Unsafe Handguns [12125. - 12133.]] shall not apply to any of the following:

...

(b)The sale, loan, or transfer of any firearm that is exempt from the provisions of subdivision (d) of Section 12072 pursuant to any applicable exemption contained in Section 12078, if the sale, loan, or transfer complies with the requirements of that applicable exemption to subdivision (d) of Section 12072.

Maybe they wondered 'if we don't make them go to an FFL, how would the Roster stuff be enforced?' and decided to punt.

Again, thanks.

[kemasa]

Yes, there is an exemption for an intrafamilial transfer, but when it goes through a FFL it is not a intrafamilial transfer.

The law prohibits certain things and sometimes there are exemptions. If it is not illegal, then it is legal, but doing that is not following the law.

CA does not mention Federal law, which creates limits to what would otherwise be allowed in CA.