Guns to California

[Librarian]

I know. It seems ridiculous. I don't question Frank's cites of the law and they do point to possession as the relevant factor rather than ownership.

Yet, I have never heard of a single instance, nor could I imagine a person relinquishing ownership (or rights to possess) his/her own firearms merely because they were temporarily and lawfully stored at another location. It just can't be. Certainly the intent of the law cannot be to deprive someone of the rights to their lawfully owned property without due process.

How does one distinguish what the OP says his brother did -

My brother recently moved to California from Wyoming and because he was unsure of the gun laws out there, he left everything with me.

from a presumably legal instate transfer from one brother to another?

The answer is, on first approach, there is no observable difference.

To avoid the appearance of a transfer, the locked storage place, or even possibly the locked trunk path might have sufficed.

 

[Frank Ettin]

...Why are these guns considered to have been transferred from brother #1, the guy who moved to Cali, to brother #2, who still lives in Wyoming?...

Brother #2 had access to, actual physical possession and control of, and the opportunity to beneficially use the guns.

Note also that AFAIK under Wyoming law one resident may transfer a gun to another resident without formalities.

I know. It seems ridiculous. I don't question Frank's cites of the law and they do point to possession as the relevant factor rather than ownership....

I agree that it seems ridiculous. But without a solid judicial opinion ruling that the words of the statutes don't mean what seems to be their plain meaning, there's no good reason to believe that they not be understood by a court according to their plain meaning.

...Yet, I have never heard of a single instance, nor could I imagine a person relinquishing ownership (or rights to possess) his/her own firearms merely because they were temporarily and lawfully stored at another location. It just can't be....

Do you have any evidence of Congressional intent? And sometimes the application of a law has an effect not fully anticipated when the law was enacted.

...It just can't be....

Why not, based on controlling legal authority?

...Certainly the intent of the law cannot be to deprive someone of the rights to their lawfully owned property without due process.

Brother #1 is not being deprived of his property without due process. He transferred his property to someone else. He may get it back, but due to certain changed circumstances he must jump through some hoops.

 

[Aguila Blanca]

...So if he came and got them and brought them himself to his new home, he'd be fine?...

Not really. It's still a transfer from a resident of one State to a resident of another.

Frank, just to close the loop on this:

I understand your point: The OP now has "possession" of the guns, in Wyoming, so to in any way return them to his brother in California is a "transfer."

But they are still the California brother's property. Yes, I understand that you made a distinction between "ownership" and "possession." My question is -- have they already broken the law by transferring possession to the OP? Or was that okay because they were then both residents of the same state? (Or were they?)

 

[Frank Ettin]

...My question is -- have they already broken the law by transferring possession to the OP? Or was that okay because they were then both residents of the same state? (Or were they?)

It's my impression from the OP that Brother #1 was still a resident of Wyoming at the time.

 

[62coltnavy]

Since when does residence have anything to do with "possession"? He left his firearms with his brother for safekeeping, and his brother has possession merely as an agent, not as an owner. There is no law that states that if I lend you a firearm the transfer has to occur through an FFL, or that another ffl transfer has to occur when the firearm is returned. I read "transfer" as meaning transfer of ownership, and that has not occurred under the scenario presented--brother still claims to own the weapons. And Frank's literal interpretation would mean that if I move from state A, where I own firearms, I cannot take them with me when I mover to state B, and that is NOT the law. Nor is there anything in the law that says that merely because I move from state A to State B I have to take all of my property with me at the same time or forfeit my right to "possession" unless I make a "transfer" from myself to myself through an FFL.

 

[62coltnavy]

It is also notable that the examples cited by Frank recognize that an owner of a firearm may have multiple residences. It is lawful to transport firearms between your vacation home and your regular residence. Residence would thus seem to carry the same meaning as your current abode, without the legal requirements of "domicile." Also notable is that 922 does not apply to loans of firearms. Hence, if brother "loaned" his firearms to his brother for use and safe keeping, he may recover then on his return to Wyoming and transport them wherever he wishes. He may also, in my view, give possession of the firearms to a a common carrier (e.g. moving company) for transport from Wyoming to California, again without contravening 922.

 

[Frank Ettin]

Since when does residence have anything to do with "possession"?...

???????????

Who said that it did?

...He left his firearms with his brother for safekeeping, and his brother has possession merely as an agent, not as an owner...

It doesn't matter why Brother #2 had possession. But he did have possession.

...There is no law that states that if I lend you a firearm the transfer has to occur through an FFL, or that another ffl transfer has to occur when the firearm is returned...

Actually the lending of firearms is specifically addressed in the federal law.

Let's look at the applicable statutes:

1. 18 USC 922(a)(3), which provides in pertinent part (emphasis added) as follows:

   (a) It shall be unlawful—
   ...
   
   (3) for any person, ... to transport into or receive in the State where he resides ...any firearm purchased or otherwise obtained by such person outside that State,...

   
   
2. And 18 USC 922(a)(5), which provides in pertinent part (emphasis added) as follows:

   (a) It shall be unlawful—
   ...
   
   (5) for any person ... to transfer, sell, trade, give, transport, or deliver any firearm to any person ...who the transferor knows or has reasonable cause to believe does not reside in ... the State in which the transferor resides; except that this paragraph shall not apply to
   
   

   (A) the transfer, transportation, or delivery of a firearm made to carry out a bequest ..., and
   
   (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;​

   ..

You may go to another State where (under 18 USC 922(a)(5)) a friend may loan you a gun to, for example, go target shooting together, or an outfitter may rent you a gun for a guided hunt. But if you were to take the gun back to your home State with you, you would be violating 18 USC 922(a)(3), which has no "loan" exception, thus becoming eligible for five years in federal prison and a lifetime loss of gun rights. Since there is no loan" exception in 18 USC 922(a)(3), a load of a firearm may not cross state lines to the borrower's State of residence.

...I read "transfer" as meaning transfer of ownership, and that has not occurred under the scenario presented--brother still claims to own the weapons....

How you read it is irrelevant. What matters is how a judge will read it.

And a judge will interpret the statute according to its plain meaning, absent precedent to the contrary. See Perrin v. United States, 444 U.S. 37 (United States Supreme Court, 1979), at 42:

...A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning...

I've provided definitions for "possession" and "transfer." And let's look at the statutes again:

1. 18 USC 922(a)(3), which provides in pertinent part (emphasis added) as follows:

   (a) It shall be unlawful—
   ...
   
   (3) for any person, ... to transport into or receive in the State where he resides ...any firearm purchased or otherwise obtained by such person outside that State,...

   
   
2. And 18 USC 922(a)(5), which provides in pertinent part (emphasis added) as follows:

   (a) It shall be unlawful—
   ...
   
   (5) for any person ... to transfer, sell, trade, give, transport, or deliver any firearm to any person ...who the transferor knows or has reasonable cause to believe does not reside in ... the State in which the transferor resides..;

In 922(a)(3) the statute refers to transporting or receiving a firearm obtained -- words broader than ownership and consistent with possession. In 922(a)(5), the references to "transfer", "sell", "transport" and "deliver" are also consistent with possession and broader than ownership.

...And Frank's literal interpretation would mean that if I move from state A, where I own firearms, I cannot take them with me when I mover to state B, and that is NOT the law...

Nonsense. If you're taking your guns with you you're retaining possession.

...It is lawful to transport firearms between your vacation home and your regular residence....

Again, you're retaining possession.

... Also notable is that 922 does not apply to loans of firearms...

Wrong. See my discussion of loans, above.

...He may also, in my view, give possession of the firearms to a a common carrier (e.g. moving company)....

Actually that's all covered in 18 USC 922(e) and 18 USC 922(f), which read as follows (emphasis added):

(e) It shall be unlawful for any person knowingly to deliver or cause to be delivered to any common or contract carrier for transportation or shipment in interstate or foreign commerce, to persons other than licensed importers, licensed manufacturers, licensed dealers, or licensed collectors, any package or other container in which there is any firearm or ammunition without written notice to the carrier that such firearm or ammunition is being transported or shipped; except that any passenger who owns or legally possesses a firearm or ammunition being transported aboard any common or contract carrier for movement with the passenger in interstate or foreign commerce may deliver said firearm or ammunition into the custody of the pilot, captain, conductor or operator of such common or contract carrier for the duration of the trip without violating any of the provisions of this chapter. No common or contract carrier shall require or cause any label, tag, or other written notice to be placed on the outside of any package, luggage, or other container that such package, luggage, or other container contains a firearm.
(f)

(1) It shall be unlawful for any common or contract carrier to transport or deliver in interstate or foreign commerce any firearm or ammunition with knowledge or reasonable cause to believe that the shipment, transportation, or receipt thereof would be in violation of the provisions of this chapter.

(2) It shall be unlawful for any common or contract carrier to deliver in interstate or foreign commerce any firearm without obtaining written acknowledgement of receipt from the recipient of the package or other container in which there is a firearm.​

....

Note that transportation and delivery by common carrier must still comply wit the other provisions of federal law, which would include 18 USC 922(a)(3) and 18 USC 922(a)(5).

 

[Old Stony]

How about you just pack up the guns, drive to California and deliver them to the rightful owner. Nothing illegal here, you stop off in S.F. and have a nice bowl of clam chowder in a sourdough bread bowl (yummy). You get a nice trip out of it and he gets his guns back and everyone walks away happy.

 

[Frank Ettin]

How about you just pack up the guns, drive to California and deliver them to the rightful owner. Nothing illegal here,...

Actually, that would still be illegal. It would still be the transfer of a gun from the resident of one State to a resident of another. However, Brother #2 could travel to California with the guns and personally deliver them to an FFL for transfer to Brother #1, if the FFL would be agreeable.

 

[g.willikers]

Did anyone address my question about the original owner putting them in a clearly marked and locked container, and keeping the only key, as a way to retain possession, while leaving them with his brother in Wyoming?

 

[Al Norris]

Did anyone address my question about the original owner putting them in a locked container, and keeping the only key, as a way to retain possession, while leaving them with his brother in Wyoming?

Yes.

To avoid the appearance of a transfer, the locked storage place, or even possibly the locked trunk path might have sufficed.

The law is what it is. In this case, the law doesn't concern itself with ownership in any manner. It only concerns possession - who has control of the item. A transfer doesn't necessarily occur when ownership changes. Outside of a few limited exceptions, a lawful transfer occurs whenever possession changes.

That's the way the law reads. Is this what the Congress actually intended? Barring documentation showing otherwise, I believe the answer to be, yes. Our federal legislators certainly know the difference between owning and possessing. If they wanted to mean ownership, they knew how to word the law in that manner. They didn't.

There is a very old saying; "Possession is nine-tenths of the law." That goes to the heart of what Frank is trying to point out.

This sort of thinking is contrary to the way many (if not most) people think.

I would go so far as to say that many people violate this particular law, everyday. They can, because they have not run afoul of other laws, to be caught with violating this one. The fact remains that the law is/was still violated.

 

[Frank Ettin]

Did anyone address my question about the original owner putting them in a locked container, and keeping the only key, as a way to retain possession, while leaving them with his brother in Wyoming?

Yes.

To avoid the appearance of a transfer, the locked storage place, or even possibly the locked trunk path might have sufficed.

To further support the view that a locked container making the gun accessible only to the "owner" might avoid the transfer problem inherent in having someone store your guns, ATF has advised here that one may ship a firearm to himself in care of another person in another State.

Specifically ATF has said (emphasis added):

6. May I lawfully ship a firearm to myself in a different State?

Any person may ship a firearm to himself or herself in the care of another person in the State where he or she intends to hunt or engage in any other lawful activity. The package should be addressed to the owner “in the care of” the out-of-State resident. Upon reaching its destination, persons other than the owner must not open the package or take possession of the firearm.​

 

[bill-may]

so if i own a (example) 12ga pump shotgun and live in (example) wisconsin, and i move to (example) california and i take it with me during the move,i have to take it to a FFL in california? even if it is over 50 years old? i posses a C&R03FFL.

 

[Evan Thomas]

If you're moving to another state and taking a firearm with you when you move, the firearm remains in your possession, so there's no reason to go to an FFL: no transfer between two people has taken place.

You do, however, have to be sure ahead of time that you'll be complying with the laws of the state you're moving to concerning the types of firearms you're allowed to possess, registration, if that's required, and any permits required by that state.

But those things are off-topic for this thread.

 

[dakota.potts]

It seems to me that when multiple people (at least one of them being a lawyer) are reading federal and state laws and can't agree on an answer, that the costs of simply driving to California and transferring the firearms via FFL has to be much cheaper than the potential risk of breaking laws you don't fully understand.

I do believe you as a private citizen can also mail a gun to an FFL, so you could mail it to an FFL in California if that worked better for you.

There would be a transfer fee, but I'd chalk it up to life experience and the cost of moving. I'd bet you could even find an FFL who would cut you a deal on a bulk transfer.

 

[carguychris]

I do believe you as a private citizen can also mail a gun to an FFL, so you could mail it to an FFL in California if that worked better for you.

Long guns- yes. Handguns- no.

Only FFL 01 Dealers, 02 Pawnbrokers, 07 Manufacturers, and certain types of government agents (i.e. LE and military) may lawfully mail handguns. 03 Collector FFLs- aka C&R licensees- are specifically prohibited from mailing handguns other than legal antiques.

Additionally, there's a caveat regarding firearms that utilize a separate lower receiver that can be assembled into a rifle OR a handgun, e.g. AR's. In order to be considered a rifle under the postal regulations, the entire rifle- or all of the parts required to assemble one- must be in the package. OTOH bringing such a weapon into CA is a whole 'nother can of worms, so this is likely irrelevant here.

I'm aware that the OP specified that no handguns are included in the lot, but I felt obligated to explain this anyway, so nobody misconstrues anything.