Firearm as a Gift

N

Nathan

New member
Talking Federal Law and Ohio Revised Code here.

I believe there are several ways to buy a firearm to give as a gift. Please tell me if these are all legal or if I'm missing something here.

The gun would be bought online from FFL.
All buyers and gift receivers are not FFL.
FFL is local(in state) of gift receiver.
None of the 3 actors are forbidden from buying a firearm in their state of residence.


1) Out of state buyer pays for gun online and has it shipped to FFL in state of gift receiver. Gift receiver does transfer at FFL and pays the fee.

2) In state buyer pays for gun online and has it shipped to local FFL. Gift is transferred by FFL to buyer(wife) and given to gift receiver.

3) Out of state buyer pays for gun online and has it shipped to FFL in state of gift receiver and wife. Wife does transfer at FFL and pays the fee. Then wife wraps gun up and gives to the gift receiver as a gift.

By the way, this question is in no way related to a scheme to get around federal or state laws. It is an effort to request this as a gift from family members.
 
Last edited:
2) In state buyer pays for gun online and has it shipped to local FFL. Gift is transferred by FFL to buyer(wife) and given to gift receiver.
Click to expand...
Only this scenario is currently considered lawful under federal law.

In scenarios (1) and (3), the recipient is receiving a firearm that was purchased by someone else, which is considered to be a straw purchase. Question #11.a. on the Form 4473 requires the buyer to certify that he/she is the actual buyer- i.e. he or she is purchasing the firearm using his or her own money. Receiving a firearm purchased by someone else requires falsifying Question #11.a. in violation of 18 U.S.C. § 922(a)(6), which prohibits "...mak[ing] any false or fictitious oral or written statement... intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm..."

Whether or not the recipient is prohibited from possessing the firearm is irrelevant with regards to § 922(a)(6). [Providing a firearm to a prohibited person is a separate crime under § 922(d).]

Legitimate gifts of firearms are allowable under federal law, provided that both parties reside in the same state, and the giver has no reasonable cause to believe that the recipient is a prohibited person. This is explained in the instructions on Form 4473. The issue is that the giver MUST use his/her own money in order to answer 11.a. truthfully.

I am not familiar with OH law and cannot comment regarding the lawfulness of straw purchases and/or gifting firearms in OH.

[Forgot to add disclaimer: I am not an attorney, nor do I play one on TV. ;) This is NOT legal advice. Caveat emptor.]
 
Last edited:
Actually CarguyChris, I believe you are mistaken. A few of the lawyers would have to jump in and verify or contradict me here but if you look at:

ATF Form 4473 On Page 4 of 6, the explaination of Question 11a about a third of the way down on the left hand side:

ATF 4473 Form said:
For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself, or otherwise acquiring this firearm for yourself. (e.g. redeeming the firearm from pawn, retrieving it from consignment, or firearm raffle winner).
Click to expand...

Accepting a gift from an out of state relative via an in-state FFL is most certainly acquiring it for yourself.

Example 2 is on the edge- if I understand the scenario correctly.

A is the guy buying the gun, and giving it away.

B is the guy getting the gun in the end.

C is the wife of the guy getting the gun in the end.

A can not send to C.

If I understand, you're trying to get a gun to someone, but keep the element of surprise, by sending it to his wife to pick up, and wrap for under the tree. That's not going to happen. I don't even think you can give the money to the wife and have her buy it local for local store prices. While I think that's legal, it's too close to a straw purchase to do that to a friend, if a LEO/Prosecutor has a bad day.

The only way you can do it, as I understand, is to ship it to the gun store for the end user to pick up. Again, the lawyers would have to weigh in, and the first thing they will tell you is to hire a lawyer yourself, because you get what you pay for. And a big part of what you pay for is proof you tried to follow the law, and confidentiality if you somehow didn't.
 
JimDandy said:
A few of the lawyers would have to jump in and verify or contradict me here but if you look at:

ATF Form 4473 On Page 4 of 6, the explaination of Question 11a about a third of the way down on the left hand side:

ATF 4473 Form said:
For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself, or otherwise acquiring this firearm for yourself. (e.g. redeeming the firearm from pawn, retrieving it from consignment, or firearm raffle winner).
Click to expand...
...
Click to expand...
You missed the most significant, for our purposes, part of the Question 11a instructions on the 4473:
...You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party. ...
Click to expand...

So I can buy a gun as a gift at an FFL and represent on the 4473 that I am the actual buyer/transferee. Once I have possession of the gun, I can transfer it to the recipient as follows:

  1. If he and I are residents of the same State, I can transfer it to him in accordance with the laws of that State. If the State is one of the many States allowing transfers of guns between residents without formalities, I may just hand the gun to him. I must not know, or have any reason to believe, that he is a prohibited person.

  2. If he and I are residents of different States, under federal law I would need to send it (or have it sent by an FFL) to an FFL in his State of residence for transfer to him.
 
JimDandy said:
Example 2 is on the edge- if I understand the scenario correctly.
Click to expand...
Actually, I agree with you, although I believe it's potentially on the correct side of that edge. :)

In addition to what Frank Ettin wrote... the key is that the "Buyer (Wife)" must...
  • Select a firearm that is lawful to possess in the destination state;
  • Pay the originating out-of-state FFL with her own money;
  • Fill out the 4473 at the receiving in-state FFL, paying the fee (if any) herself;
  • Receive the firearm;
  • Give it to an in-state recipient whom she has no reasonable cause to believe is a prohibited person, following applicable local and state laws governing the transfer;
  • NOT be paid back or otherwise compensated for the purchase, by the end recipient or otherwise.
If any of these qualifications are not followed to the letter, the transaction potentially goes off the rails. :(

FWIW I generally recommend that firearm gifts be given in the form of gift cards, unless the firearm is something unusual that's likely to sell quickly, AND I know that the recipient REALLY wants one just like it.

[Let me repeat the disclaimer: I am not an attorney, nor do I play one on TV. ;) This is NOT legal advice. Caveat emptor.]
 
Example #2 isn't skirting any edges. It is fact identical to the example of a legitimate gift that's listed on the 4473 instructions for question 11a.


4473 Instructions said:
Question 11.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it from consignment, firearm raflle winner). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party. ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer “NO” to question 11.a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual transferee/buyer of the firearm and should answer “YES” to question 11.a.
Click to expand...
 
Except the wife was going to be making the "legitimate" gift purchase with someone else's money from my understanding. The original poster should probably clarify, but as I understood it option 2 was the gifter sending money to the wife, to buy the gun for the giftee.

Now as for the point Frank raised:

You are the buyer/transferee if buying as a gift for a third party. Are you saying that middle step of the buyer taking possession at an instate FFL only to turn around and re-ship it to the local FFL must happen?

If the gift receiver can be a transferee by otherwise acquiring it for themselves..

A) You bought it, and you're keeping it
B) You are otherwise acquiring it for yourself
C) You're buying it and you're giving it away

If A, B, or C must be true, and B is true... hence legal right?
 
Example #3 may just be confusing. . .

I did read the 3 page SCOTUS ruling post on straw purchases. Like it or not, they were straw at the point A took B's money(and promise to return with gun) to the FFL to buy the G19. The second FFL was just icing on the cake.

Example #2 is different. If A buys a gun online, ships to their local FFL, the local FFL ships to B's local FFL, then B completes the transfer, this sounds legal to me, right? It sounds like a legal online purchase + a legal state to state transfer. All hunky dory, right?

In example #2, I'm stating that A calls online FFL and gives them a card number to buy G19, then gives online FFL B's FFL to ship it to. At this point, the gun is an untransfered gun with a paid invoice. At B's FFL, B answers "yes, I am the actual transferee," because B would be the actual transferee. (No lying is required.) Then B and B's FFL complete the transfer.

In a straw purchase, the reason buyer enters into this so much is because the person filling out a 4473 is neither the actual buyer or the actual transferee. The gun ends up in a 3rd party's hands without the unknown (on 3rd party's part) that is part of the gifting process.

Maybe I need to be calling the ATF about this, but the trouble is even if I get a warm fuzzy, I will really need a letter to move forward.

BTW, #3 is a #2 + a legitimate gift transfer.


To confuse things a bit more. . .
How is this legally different the B tells A, I want a BM 2000? A goes to the gun store an places a BM 2000 on layaway and pays all but $1. Then B comes in pays $1 and completes a 4473. . .

I often hear this given as the gifting "ideal image".
 
There's nothing in scenario #2 that indicates anyone else's money. In fact, it calls the wife "buyer" in sentence two with no indication that the subject of the word "buyer" has changed from sentence one.

The rest of your post is confusing to me and I don't know what you're asking. All 3 of your A, B, C are legal as presented on their own. I don't know what that has to do with the OP.

If the actual purchaser is in another state, the only way to comply with the law, as I understand it, is for the actual purchaser (paying the money) to have it sent to an FFL, do the transfer himself and then send it to an FFL in the giftees state, where the giftee (not his wife) would have to fill out the 4473.

I'm not positive on that point though, if the wife could or could not fill out the form so as to keep the gift "secret" from the husband until some future date when it is presented.
 
I don't think the actual purchaser ever has to take possession from an FFL Brian. I'm saying I think the out of state purchaser could just direct it to an FFL local to the recipient, and he could fill out the form as the actual transferee since he's acquiring it for himself.

Nothing says the raffle organization has to take possession of a rifle to the best of my knowledge, which was one of the examples.

If Joe in Wyoming wants to buy a Nifty XYZ whatever-gun for his brother Tom in Montana:

If it ships to Wyoming, Joe can fill out the 4473 as the actual buyer/transferee because he bought it as a gift. We're all in agreement on that one. He would then have to ship it to an FFL in Montana for Tom to fill out the 4473 form as the actual transferee. We all agree that's legal, I think.

I also think Joe can buy it from Internet House Of Guns, and ship it directly to the FFL near Tom, and Tom would be able to fill out a 4473 form as the actual transferee, without Joe ever having to take possession, saving shipping time and FFL fees. And that, I think is what we're differing on.

Joe using Joe's money to buy a gun for Tom isn't (inherently) illegal.
Tom CAN legally be the actual buyer/transferee - At some point we need to figure out
Joe CAN legally be the actual buyer/transferee up to the point Tom takes possession.

I don't see any point where it says Joe MUST take possession before Tom does- and that's what I'm asking about.
 
I won an M1 Garand from CMP through a T.S.R.A. annual raffle this year. The director contacted me and the CMP with the news. After filling out the required CMP forms and sending them off, the rifle was shipped directly to me.
Don't know if that sheds any light on the subject. But I tried. ;)
 
You must log in or register to reply here.
Back
Top