Guns as gifts

[ATN082268]

I saw a recent YouTube video from the Gun Collective. They seemed to imply that giving guns as gifts was illegal but maybe that was under their state law of Pennsylvania. I always thought giving guns was legal, at least Federally so long as the person was not prohibited and money wasn't exchanged for it. And of course some circumstances may require an FFL for transfer.

 

[ligonierbill]

In Pennsylvania, handguns must be transferred through a FFL. I researched that to gift my brother a revolver a few years back. I believe that long guns are OK in state (check with the AG website). Of course, federal law requires any transfer across state lines must go through a FFL.

 

[Pahoo]

When in the doubt, go through "your" local FFL.

I saw a recent YouTube video from the Gun Collective. They seemed to imply that giving guns as gifts was illegal but maybe that was under their state law of Pennsylvania.

On questions like this, my default is when in the doubt, go through "your" local FFL. I have read that the only exception, might be a close relative. I often refer folks to their FFL. .......

Aguilla Blanca will be here, shortly, to elaborate ...

Be Safe !!!

 

[BornFighting88]

My parents gave me a Ruger 10/22 as a Christmas gift about 20 years ago, it was by far one of the best Christmas gifts of all time. I was a teenager at the time, unable to legally purchase one myself, and it was a gift. Form 4473 even asks if the gun is for you or a gift (in legal-ese terms of course, insofar as to state something along the lines of “is the transferee legally allowed to own the firearm”).

When you purchase the gun, at least in the great state of PA, you are not required to register them, so once you go through the federal hoops, it is a common commodity with value and can be traded or given as such. That is as far as I have been informed. I could be wrong.

 

[raimius]

It depends.
Are they prohibited persons?
Are they residents of the same state as you?
Does your state have specific laws on transfers?

 

[Eight_is_enough]

I can see them prosecuting, saying that when you buy planning to give away you are not the "actual transferee."

You'd be okay unless the person you gave the gun to flips out and shoots up his school, as seems to happening every week or so now.

 

[Aguila Blanca]

I can see them prosecuting, saying that when you buy planning to give away you are not the "actual transferee."

From the instruction on the BATFE Form 4473, question 21.a:

Question 21.a. Actual Transferee/Buyer: For purposes of this form, a person is the actual transferee/buyer if he/she is purchasing the firearm for him/herself or
otherwise acquiring the firearm for him/herself. (e.g., redeeming the firearm from pawn, retrieving it from consignment, firearm raffle winner). A person is also the actual transferee/buyer if he/she is legitimately purchasing the firearm as a bona fide gift for a third party. A gift is not bona fide if another person offered or gave the person completing this form money, service(s), or item(s) of value to acquire the firearm for him/her, or if the other person is prohibited by law from receiving or possessing the firearm.

 

[Spats McGee]

^^^ This.

 

[Eight_is_enough]

Yup, but you better hope that after the kid shoots up the school he doesn't then tell the cops, in answer to that question:

"Well, Dad did promise me he'd get me the shotgun if I did all my summer chores without complaining."

See what I'm getting at?

Probably 99% of all gifted guns are gifts between immediate family members -- parent(s) to offspring or vice-versa constituting the great majority of those. I think the law should be that transfers between immediate family members are exempt so long as the transferee is not prohibited by federal law from possessing the firearm.

I also think that regardless of what transpired before, if the transferee in the (first 4473) planned to, and did, go thru an FFL (second 4473) before making the transfer, that should not be considered a violation of the NFA.

Four of the 9 members of the SCOTUS agreed that WAS the law in the Abramski case, but were out-voted, thanks to the anti-gun members appointed.

 

[Aguila Blanca]

I also think that regardless of what transpired before, if the transferee in the (first 4473) planned to, and did, go thru an FFL (second 4473) before making the transfer, that should not be considered a violation of the NFA.

Four of the 9 members of the SCOTUS agreed that WAS the law in the Abramski case, but were out-voted, thanks to the anti-gun members appointed.

Abramski is a terrible case to use as an example of a gift purchase. Abramski made a straw purchase, not a gift. There was never any intention of a gift. Abramski was a police officer. He got police discounts on Glock firearms, and he used his police discount to purchase a Glock for his uncle -- using money that the uncle had sent Abramski in advance.

https://en.wikipedia.org/wiki/Abramski_v._United_States

https://law.justia.com/cases/federal/appellate-courts/ca4/11-4992/11-4992-2013-01-23.html

 

[Eight_is_enough]

Yes, I am well aware of all that. And the fact that the feds announced he was being investigated for bank robbery (though he was never charged).

I didn't say he was a great guy, I said he did not break any federal law.

And 4 of 9 on the SCOTUS agreed with that.

Gift is not an important distinction. You can buy a firearm PLANNING on selling it, and still be the "actual transferee." You just cannot have the resale deal in place, or having gotten money in advance, because then you are a straw-man, in the eyes of the ATF now.

 

[JohnKSa]

Yup, but you better hope that after the kid shoots up the school he doesn't then tell the cops, in answer to that question:

"Well, Dad did promise me he'd get me the shotgun if I did all my summer chores without complaining."

See what I'm getting at?

Probably 99% of all gifted guns are gifts between immediate family members -- parent(s) to offspring or vice-versa constituting the great majority of those. I think the law should be that transfers between immediate family members are exempt so long as the transferee is not prohibited by federal law from possessing the firearm.

I also think that regardless of what transpired before, if the transferee in the (first 4473) planned to, and did, go thru an FFL (second 4473) before making the transfer, that should not be considered a violation of the NFA.

Four of the 9 members of the SCOTUS agreed that WAS the law in the Abramski case, but were out-voted, thanks to the anti-gun members appointed.

The law specifically exempts gifts. Therefore if the firearm is a gift, it is not a straw purchase.

If the firearm is not a gift--if there is quid pro quo going on--then that's another story.

Abramski is irrelevant as no one involved claimed the firearm was a gift.

I didn't say he was a great guy, I said he did not break any federal law.

1. Wrong. His conviction was upheld by SCOTUS. They are the final say on the matter.

2. Irrelevant to this discussion since the gun was not a gift.

Gift is not an important distinction.

It is when that's the topic of discussion.

It is since the law specifically exempts gifts.

 

[Eight_is_enough]

My point was that the "gift exclusion" is a trap for the unwary. The normal parent is not going to believe that telling the teenager he will get that new shotgun he wants if he does all the yard mowing next summer, the way the kid is supposed to, will blow the "gift exclusion" meaning the parent can be sent to prison for 10 years for "lying" on the 4473.

Same thing with the Abramski rule. Say my son, who lives in another state, spots a varmint rifle he knows I have been looking for years, in a LGS there, but they will not ship it. I ask him to buy it and ship it to my FFL and say I will reimburse him for everything.

If he does that, BAM! He can be sent to prison for 10 years.

Sorry, I just think we should be asking for changes, not just saying, "Oh, well, the Supreme Court has ruled." Any thing you buy intending to transfer to someone else ONLY IF they pass a NICS at an FFL should be exempt.

 

[Frank Ettin]

...I think the law should be that transfers between immediate family members are exempt so long as the transferee is not prohibited by federal law from possessing the firearm.....

Who cares what you think the law should be? Why do your wishes on the subject matter?

Here's a clue: For the purposes of this sub-forum no one cares what you think the law should be, and your wishes on the subject don't matter one, tiny wit.

The point of trying to understand what the law really is and how things actually work is to better be able to make choices that further one's interests while avoiding to the extent possible the snares and tripwires of legal entanglements.

No matter what make believe law you might want to be real, it is not real; and things will be done in the real world according to real law.

....I also think that regardless of what transpired before, if the transferee in the (first 4473) planned to, and did, go thru an FFL (second 4473) before making the transfer, that should not be considered a violation of the NFA....

What does the National Firearms Act have to do with this thread? No one is discussing Title II firearms. Transfer of Title II firearms under the NFA is a much more complicated process.

And again, the fact that you think that, "...regardless of what transpired before, if the transferee in the (first 4473) planned to, and did, go thru an FFL (second 4473) before making the transfer, that should not be considered a violation..." is completely irrelevant. That is not what the law is, and your notions about what the law should be won't matter.

My point was that the "gift exclusion" is a trap for the unwary. The normal parent is not going to believe that telling the teenager he will get that new shotgun he wants if he does all the yard mowing next summer, the way the kid is supposed to, will blow the "gift exclusion" meaning the parent can be sent to prison for 10 years for "lying" on the 4473....

Which is why it's so important that gun owners have access to solid information about what the law actually is -- and that is a reason the drivel you've posted in this thread about how things should be isn't helpful.

....I said he [Abramski] did not break any federal law.

And 4 of 9 on the SCOTUS agreed with that....

But you're wrong, because Abramski did break federal law. That's what five of the Justices said, so that is what the law is.

In real life in the real world, the the legal system decides, through judicial process, disputes, disagreements, controversies, or legal questions. Law, including constitutions, statutes, regulations, and decisions of courts of appeal, is a tool used by courts to decide the the issues brought to court for resolution. While the parties may argue what the law is that is applicable to the case, it's up to the court, in the exercise of its judicial function to decide what law actually does apply and how it applies to the facts to decide the outcome. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177), "...It is emphatically the province and duty of the judicial department to say what the law is....."

In real life in the real world if courts aren't deciding matters using what you think the law is, your understanding of what the law is is wrong. The opinions of courts on matters of law affect the lives and property of real people in the real world. Your opinions and $2.00 will get you a cup of coffee.

The Founding Fathers well understood how people do disagree and how politics works. They were active, mostly successfully, in the commercial and political world of the time. Almost all were very well educated. They were generally politically savvy. Many were members at various times of their home colonial assemblies or were otherwise active in local government or administration. They were solidly grounded in the real world and knew how to make things work in the real world. That is why they were able to bring our nation into being. Of the 56 signers of the Declaration of Independence, 25 were lawyers. Of the 55 framers of the Constitution, 32 were lawyers. And they left us a system in which we can influence what laws are enacted and how they are administered.

We live in a pluralistic, political society, and not everyone thinks as you do. People have varying beliefs, values, needs, wants and fears. People have differing views on the proper role of government. So while you and those who share your views may use the tools the Constitution, our laws and our system give you to promote your vision of how things should be, others may and will be using those same tools to promote their visions.

The Constitution, our laws, and our system give you resources and remedies. You can associate with others who think as you do and exercise what political power that association gives you to influence legislation. You have the opportunity to try to join with enough other people to enable you to elect legislators and other public officials who you think will be more attuned to your interests. And others who believe differently have the same opportunities.

So if you want things to be different, by all means, use the available processes to try to change things. But until things do change, we will need understand how to live with things as they really are.

 

[Aguila Blanca]

Eight is enough, it seems to me that you have been mkoving the goalposts in this discussion. In post #6 you wrote:

I can see them prosecuting, saying that when you buy planning to give away you are not the "actual transferee."

You'd be okay unless the person you gave the gun to flips out and shoots up his school, as seems to happening every week or so now.

I responded to that by citing the actual language of the instructions for question 21.a on the Form 4473, which specifically says that if you purchase a firearm with the intention of making it a gift to a third party, you ARE the actual transferee/buyer.

Then, in post #9, you stated that you think transfers between immediate family members should be exempt. Many of us probably share that sentiment ... but that's not the law, so what you wish for doesn't change anything with respect to the original question. And then you ended post #9 by mentioning the Abramski case, which had nothing whatsoever to do with gifting a firearm.

When I pointed out that the Abramski case was about a straw purchase rather than a gift, you then responded in post #11 that (1) Abramski did not break any federal law [but he did]; and then (2) that

Gift is not an important distinction. You can buy a firearm PLANNING on selling it, and still be the "actual transferee." You just cannot have the resale deal in place, or having gotten money in advance, because then you are a straw-man, in the eyes of the ATF now.

This last statement moves the discussion completely out of the realm of the legality of giving a firearm as a gift into the realm of engaging in the business of buying and selling firearms. This thread/discussion is about the legality of giving firearms as gifts. It has nothing to do with buying and selling firearms. In fact, it is completely legal to have a resale deal in place when you buy a firearm. I shoot at a small commercial range that has a gunshop. The shop is also small, and doesn't stock many new firearms. I have on several occasions purchased firearms through this shop. The FFL buys the gun from a wholesale distributor knowing that he is going to resell it to me. He does the same thing for many customers. His records are audited periodically by the BATFE; there has never been a problem with this business model.

 

[Frank Ettin]

And here's a more detailed outlined regarding "straw purchase" law"

...Note: The Supreme Court has issued its ruling in the "straw purchase" case, Abramski v. U. S.. Based on that ruling the following explanation of what constitute a straw purchase under the ATF interpretation reflects current law. See here for a discussion of the Abramski ruling.


The actual offense is violation of 18 USC 922(a)(6), making a false statement on the 4473 (specifically about who is the actual buyer), and has nothing to do with the ultimate recipient being a prohibited person.

See the ATF publication Federal Firearms Regulation Reference Guide, 2005, at page 165 (emphasis added):

15. STRAW PURCHASES

Questions have arisen concerning the lawfulness of firearms purchases from licensees by persons who use a "straw purchaser" (another person) to acquire the firearms. Specifically, the actual buyer uses the straw purchaser to execute the Form 4473 purporting to show that the straw purchaser is the actual purchaser of the firearm. In some instances, a straw purchaser is used because the actual purchaser is prohibited from acquiring the firearm. That is to say, the actual purchaser is a felon or is within one of the other prohibited categories of persons who may not lawfully acquire firearms or is a resident of a State other than that in which the licensee's business premises is located. Because of his or her disability, the person uses a straw purchaser who is not prohibited from purchasing a firearm from the licensee. In other instances, neither the straw purchaser nor the actual purchaser is prohibited from acquiring the firearm.

In both instances, the straw purchaser violates Federal law by making false statements on Form 4473 to the licensee with respect to the identity of the actual purchaser of the firearm, as well as the actual purchaser's residence address and date of birth. The actual purchaser who utilized the straw purchaser to acquire a firearm has unlawfully aided and abetted or caused the making of the false statements. The licensee selling the firearm under these circumstances also violates Federal law if the licensee is aware of the false statements on the form. It is immaterial that the actual purchaser and the straw purchaser are residents of the State in which the licensee's business premises is located, are not prohibited from receiving or possessing firearms, and could have lawfully purchased firearms...

So, if --

1. X says to Y, "Here's the money; buy that gun and then we'll do the transfer to me [when I get back to town, or whenever else].", or
   
   
2. X says to Y, "Buy that gun and hold it for me; I'll buy from you when I get my next paycheck."

or anything similar, if Y then buys the gun, he is not the actual buyer. He is buying the gun as the agent of X, on his behalf; and X is legally the actual buyer. If Y claims on the 4473 that he is the actual buyer, he has lied and violated 18 USC 922(a)(6). His subsequently transferring the gun to X in full compliance with the law, does not erase his prior criminal act of lying on the 4473.

Some more examples --

• If X takes his own money, buys the gun and gives the gun to someone else as a gift, free and clear without reimbursement of any kind, X is the actual purchaser; and it is not a straw purchase.
  
  
• If X takes his money and buys the gun honestly intending to keep it for himself and later sells it to another person, X is the actual purchaser; and it is not a straw purchase.
  
  
• If X takes his money and buys the gun intending to take it to the gun show next week to see if he might be able to sell it to someone at a profit, X is the actual purchaser; and it's not a straw purchase. He may, however have other problems if he manages to sell the gun at the gun show, and the transfer there isn't handled properly. He might also have problems if he does this sort of thing too frequently, and the ATF decides he's acting as a dealer without the necessary license.
  
  
• If X takes his money and buys the gun with the understanding that he is going to transfer the gun to Y and that Y is going to reimburse him for it, X is not the actual purchaser. He is advancing X the money and buying the gun for and on behalf of Y, as Y's agent. So this would be an illegal straw purchase.

Whether or not a transaction is an unlawful straw purpose will often be a question of intent. But prosecutors in various situations can convince juries of intent, often from circumstantial evidence. A slip of the tongue, posting something on the Internet, tracks left by money transfers have all, in one way or another, and in various contexts, helped convince a jury of intent.