Is is legal to buy handguns out of state?
- Thread starter BTR
- Start date
You can buy from a private party, but that private party has to give his gun to an FFL in his state, and the FFL in his state sends it to the FFL in your state. Both you and the seller will likely pay some fees to your respective FFLs for the service. Customarily, the seller pays his FFL and the buyer pays his own FFL. I've purchased two guns this way, having found the sellers on Internet auction/classified sale sites.
I once read something somewhere about the rules being relaxed for buying guns from states bordering on one's own, but I don't know any details about that.
I once read something somewhere about the rules being relaxed for buying guns from states bordering on one's own, but I don't know any details about that.
EOD,
Be careful with that one. It depends on who is interpreting the law at the time. Technically the law states that a private party can ship to an FFL (or the manufacturer) to have work done on a gun that is returned to him. It doesn't ever directly address selling the gun to the out of state FFL. Different rulings have been applied, and it is not particularly consistent. Get the wrong ATF office and you could find yourself in trouble.
Be careful with that one. It depends on who is interpreting the law at the time. Technically the law states that a private party can ship to an FFL (or the manufacturer) to have work done on a gun that is returned to him. It doesn't ever directly address selling the gun to the out of state FFL. Different rulings have been applied, and it is not particularly consistent. Get the wrong ATF office and you could find yourself in trouble.
There is nothing in the ATF reg book that says you must ship a gun from an FFL in your state. You can ship a handgun or long gun directly to a FFL in another state. I went thru this 18 months ago in detail as far as laws are concerned. It is done all the time on auctionarms also and is legal. You cannot purchase a handgun from a FFL or private party in a state that is not your residence. You may purchase a longgun from a state other than your residence from a FFL unless LOCAL laws prevent it. To be a resident you must have proof that you have lived in a state for at least 90 days. Even a non citizen of the US can purchase after being a resident for 90 days even though the yellow form asks if you are a US citizen. I was a witness to this being done at a gunstore. The clerk wouldn't sell a handgun to a Brit but the manager intervened and clarified the law. Afterward I did some checking and found out that this was indeed true.
Tom,
I agree with your analysis. However the law is unclear in that it doesn't say that you CAN do this either. The only place it specifically addresses private shipment out of state is for repair or modification. I have seen this interpreted (by the ATF) both ways. Just depends on the office involved. I suspect one could win the court case if it got that far, but is it worth the cost and time?
I agree with your analysis. However the law is unclear in that it doesn't say that you CAN do this either. The only place it specifically addresses private shipment out of state is for repair or modification. I have seen this interpreted (by the ATF) both ways. Just depends on the office involved. I suspect one could win the court case if it got that far, but is it worth the cost and time?
Caeca Invidia Es
Staff Alumnus
If someone has the funds and time to dedicate to the case then it is worth it, how else can we force clarification/dismissal of the law?
TheBluesMan
Moderator Emeritus
As I understand the federal law under the Gun Control Act of 1968 U.S.C. Title 18, Part I, Chapter 44, Section 922, yes, it is illegal.
Check this site for yourself if you want: http://www4.law.cornell.edu/uscode/18/ch44.html#PC44
Check this site for yourself if you want: http://www4.law.cornell.edu/uscode/18/ch44.html#PC44
Tom B,
"You cannot purchase a handgun from a FFL or private
party in a state that is not your residence"
So, all those dealers in Shotgun News selling handguns to people and shipping them out of state (via an FFL holder) are breaking the law? Shouldn't somebody tell them that? I think that if you purchase any firearm (handgun, shotgun, rifle - not class III) from one FFL dealer, who ships it to your local FFL dealer and then you pass the background check, you have broken no FEDERAL laws. State laws will be another story.
Besides, there would be very little LEGAL difference between that and the FFL holder himself (herself) purchasing the (insert type of handgun here) from an out of state FFL dealer and then selling it to me or someone else. Happens all day, every day, and it's called interstate commerce (intra state? - I always get those two confused). Not every FFL purchases their stock directly from manufacturers. Lew Horton is an ideal example. He sells short run, performance center produced S&W revolvers and autos. He does business all over the US. And I had no problems ordering a particular revolver from him and had it shipped to my FFL holder.
So, you might want to rethink this a little. According to the way you put forward your interpretation of this law, NO HANDGUN could be sold outside the manufacturers state, and I KNOW that's hooey.
If you are talking about NOT using FFL holders and trying to avoid any type of registration, then yes, it MAY be illegal, depending on the state you are talking about. UPS has made it more expensive (not illegal) to ship handguns, that's why I don't use them any more, as their excuse was extremely poor (they couldn't adequately keep track of handguns if THEY WEREN'T shipped overnight - so all those pills, cameras, jewelery, etc, THEY CAN keep track of without using overnight express, it's only HANDGUNS they can't keep track of - so I'm supposed to pay more because they can't control their employee theft problems - yeah right!).
"You cannot purchase a handgun from a FFL or private
party in a state that is not your residence"
So, all those dealers in Shotgun News selling handguns to people and shipping them out of state (via an FFL holder) are breaking the law? Shouldn't somebody tell them that? I think that if you purchase any firearm (handgun, shotgun, rifle - not class III) from one FFL dealer, who ships it to your local FFL dealer and then you pass the background check, you have broken no FEDERAL laws. State laws will be another story.
Besides, there would be very little LEGAL difference between that and the FFL holder himself (herself) purchasing the (insert type of handgun here) from an out of state FFL dealer and then selling it to me or someone else. Happens all day, every day, and it's called interstate commerce (intra state? - I always get those two confused). Not every FFL purchases their stock directly from manufacturers. Lew Horton is an ideal example. He sells short run, performance center produced S&W revolvers and autos. He does business all over the US. And I had no problems ordering a particular revolver from him and had it shipped to my FFL holder.
So, you might want to rethink this a little. According to the way you put forward your interpretation of this law, NO HANDGUN could be sold outside the manufacturers state, and I KNOW that's hooey.
If you are talking about NOT using FFL holders and trying to avoid any type of registration, then yes, it MAY be illegal, depending on the state you are talking about. UPS has made it more expensive (not illegal) to ship handguns, that's why I don't use them any more, as their excuse was extremely poor (they couldn't adequately keep track of handguns if THEY WEREN'T shipped overnight - so all those pills, cameras, jewelery, etc, THEY CAN keep track of without using overnight express, it's only HANDGUNS they can't keep track of - so I'm supposed to pay more because they can't control their employee theft problems - yeah right!).
Bob C,
27CFR178.147 states: "A person not otherwise prohibited by Federal, State, or local law may ship a firearm to a licensed importer, licensed manufacturer, or licensed dealer for any lawful purpose........"
Also, interpretations by BATF field offices are worthless. The only clarification of the regulations that should be accepted are from BATF HQ, in writing. These are not hard to get. I have had several answered.
Rich
27CFR178.147 states: "A person not otherwise prohibited by Federal, State, or local law may ship a firearm to a licensed importer, licensed manufacturer, or licensed dealer for any lawful purpose........"
Also, interpretations by BATF field offices are worthless. The only clarification of the regulations that should be accepted are from BATF HQ, in writing. These are not hard to get. I have had several answered.
Rich
EOD,
True, but 18 USC Sec.922 (a) (5) also states:
(It shall be illegal)
"for any person (other than a licensed importer, licensed
manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business 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 of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;"
Unfortunately, US Code takes precedence over regulations.
Confusingly, another section of 922 states that a private party CAN mail a gun to a dealer/manufacturer/etc. The whole thing was written (from the looks of it) to give lawyers a chance to make a lot of money arguing different paragraphs. Personally, I don't feel like taking the chance.
True, but 18 USC Sec.922 (a) (5) also states:
(It shall be illegal)
"for any person (other than a licensed importer, licensed
manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business 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 of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;"
Unfortunately, US Code takes precedence over regulations.
Confusingly, another section of 922 states that a private party CAN mail a gun to a dealer/manufacturer/etc. The whole thing was written (from the looks of it) to give lawyers a chance to make a lot of money arguing different paragraphs. Personally, I don't feel like taking the chance.
Bob C,
For all practical purposes, the Code of Federal Regulations is the law. Congress passes a law (the US Code) and directs the Executive Branch (in this case, the Dept of Treasury) to write regulations to administer the law. The agency publishes a proposed regulation in the Federal Register and, after a public comment period, a final rule or an ammended proposed rule will be published. Eventually, a final rule is published in the Federal Register with an effective date. A regulation may be effective in 60 days or it may be phased in over several years, depending on the impact. The section of the USC you quoted is also in 27CFR178.30. It clarifies the USC by saying a non-licensee cannot transfer to another non-licensee in a state other than the one in which they are a resident.
Enforcement personnel do not write violations on the US Code. They write violations on the Code of Federal Regulations. The US Attorney will bring up the US Code in the prosecution process.
For all practical purposes, the Code of Federal Regulations is the law. Congress passes a law (the US Code) and directs the Executive Branch (in this case, the Dept of Treasury) to write regulations to administer the law. The agency publishes a proposed regulation in the Federal Register and, after a public comment period, a final rule or an ammended proposed rule will be published. Eventually, a final rule is published in the Federal Register with an effective date. A regulation may be effective in 60 days or it may be phased in over several years, depending on the impact. The section of the USC you quoted is also in 27CFR178.30. It clarifies the USC by saying a non-licensee cannot transfer to another non-licensee in a state other than the one in which they are a resident.
Enforcement personnel do not write violations on the US Code. They write violations on the Code of Federal Regulations. The US Attorney will bring up the US Code in the prosecution process.
Wallew - When I (a non FFL) purchase a handgun from a person or dealer thru shotgun news located out of my state it cannot be sent directly to me. It must be sent to a FFL in my state. The FFL then does the paperwork and gives or sells (depending on how the money trail has gone) the handgun to me. In the eyes of the law I have purchased the handgun from MY FFL not the FFL or seller associated with shotgun news or whoever out of state. I live in GA. I cannot drive to AL and buy a handgun from a FFL dealer or a private party there. I can buy a long gun from a FFL dealer there (because the two states have a mutual agreement regarding that)but I cannot buy a long gun from a private party there. There is no federal law that says I cannot buy a long gun from a dealer (FFL) in another state but I must go there in person to make the purchase and complete the paperwork.
TheBluesMan
Moderator Emeritus
What Tom B said may vary from state to state. It is allowed usually, if there is a mutual agreement in place, like he said. As I understand the laws here in Ohio, I can buy a long gun (in a private transaction or through an FFL) in an adjoining state, and someone in an adjoining state may buy a long gun in Ohio; but not a handgun. Also, it is incumbent upon the seller to be sure that the buyer is lawfully able to take possession of the firearm under the laws of both states as well as under the GCA '68.
One addition to this. There IS a federal law concerning buying a long gun out of state (in person). You have to comply with the laws in BOTH states. Some FFL's are reluctant to do this because THEY are the one liable if the sale doesn't comply with all the STATE laws in YOUR state. Adjacent states normally aren't a big problem, but if you are from Maryland and trying to buy a rifle in Texas the FFL might not be real eager to oblige. (I picked Maryland because they change laws so often the ATF can't even keep up with them 
).
).Tom B,
I agree with MOST of what you said. If you purchased a long gun OR a hand gun from a FFL holder OR a private individual and had it shipped to a FFL in your state, at which point you passed your state background check (or NICS), I don't think you've broken any FEDERAL laws, but you would still have to follow laws of both states. And I don't think where the 'sale' came from is a pertinent question, just whether you have met all laws in your state and the state the firearm comes from. You said you couldn't drive to AL and purchase a handgun there from either a FFL or a private party. Actually, yes you could, BUT you couldn't take possession of it. It would have to be shipped to your FFL and then you would have to pass the background check as usual, but the sale would not be from your FFL. Your FFL is only the generator of the background check. And I can pick up Shotgun News and order any legal firearm from any FFL holder or private party and the only stipulation is that it MUST be shipped to my FFL so they can (again) run the background check. The $$ from sale go to whomever I purchased firearm from, not my local FFL (save the background check processing fee in my case).
I have purchased many handguns and long guns off the web, shipped to my FFL holder (who just charged me the $10 background check fee, so it wasn't 'sold' by my FFL holder to me) and it wasn't illegal. I live in Colorado, and as I said earlier, each state has different laws on the books, but as long as you follow all FEDERAL statutes, you can generally purchase firearms across state lines. SOME FFL holders do get 'uneasy' about shipping firearms to a state where they don't know the laws and don't want to break any laws or be held liable for laws broken by the other FFL holder. It's a pretty grey area, and as EOD Guy said, final decisions come from BATF HQ, not your local BATF office, who could have a different opinion on the same subject. And in some instances, BATF HQ will actually put that decision in writing.
I agree with MOST of what you said. If you purchased a long gun OR a hand gun from a FFL holder OR a private individual and had it shipped to a FFL in your state, at which point you passed your state background check (or NICS), I don't think you've broken any FEDERAL laws, but you would still have to follow laws of both states. And I don't think where the 'sale' came from is a pertinent question, just whether you have met all laws in your state and the state the firearm comes from. You said you couldn't drive to AL and purchase a handgun there from either a FFL or a private party. Actually, yes you could, BUT you couldn't take possession of it. It would have to be shipped to your FFL and then you would have to pass the background check as usual, but the sale would not be from your FFL. Your FFL is only the generator of the background check. And I can pick up Shotgun News and order any legal firearm from any FFL holder or private party and the only stipulation is that it MUST be shipped to my FFL so they can (again) run the background check. The $$ from sale go to whomever I purchased firearm from, not my local FFL (save the background check processing fee in my case).
I have purchased many handguns and long guns off the web, shipped to my FFL holder (who just charged me the $10 background check fee, so it wasn't 'sold' by my FFL holder to me) and it wasn't illegal. I live in Colorado, and as I said earlier, each state has different laws on the books, but as long as you follow all FEDERAL statutes, you can generally purchase firearms across state lines. SOME FFL holders do get 'uneasy' about shipping firearms to a state where they don't know the laws and don't want to break any laws or be held liable for laws broken by the other FFL holder. It's a pretty grey area, and as EOD Guy said, final decisions come from BATF HQ, not your local BATF office, who could have a different opinion on the same subject. And in some instances, BATF HQ will actually put that decision in writing.