Military member buying gun on leave. Advice appreciated.

[rwilson452]

I lost tract of this thread. But just to confuse it further. If someone in the military gets transferred to another state but maintains his "residency" in his home state they can buy a hand gun in the state he they are station in as a resident on producing their PCS orders. In effect they have dual residence. Yes, 20 years service. Further more at least in most states they can maintain their "out of state" drivers license for the duration of that tour of duty.

 

[Frank Ettin]

I've been out to dinner, so let's tie up some loose ends.

...I DID NOT cite military law, I cited 50 U.S. Code § 4001 - Residence for tax purposes....

Title 50 of the United States Code is entitled "War and National Defense." Chapter 50 of that Title, in which § 4001 is found, is entitled "Servicemembers Civil Relief." That chapter 50 applies only to service members on active duty.

...To understand it, you first must read it....

You should have taken your own advice. If you had read it and understood it, it would have been apparent that the statute addresses residency for tax purposes only, and for no other purpose. Since we're not discussing tax matters in this thread, that statute is irrelevant.

....I cited a Law that CLEARLY states his (Florida) residence HAS NOT changed....

You cited a statute addressing residency for tax purposes only, and for no other purpose. Since we're not discussing tax matters in this thread, that statute is irrelevant.

....But you aren't licensed to practice in Florida, are you?...

• This question is one primarily of federal law, not Florida law.
  
  
• I'm licensed to practice law in more States than you are. You aren't licensed to practice law anywhere.
  
  
  • I have, in fact, handled legal matters for real live clients in most States, associating with local counsel as necessary to satisfy practice rules.
    
    
  • We have lawyers here, including Bartholomew Roberts and Spats McGee who are licensed in other States. I'm confident one of the other lawyers around here will let me know if I've made a misstep.
  
  
• I've had a good deal more formal legal education than you have.
  
  
• I've practiced law for a lot of years more than you have. I've represented the interests of real clients in the real world for real stakes. I've done so under the scrutiny of regulators, judges, colleagues and opposing lawyers.

 

[raimius]

So, are you saying that the OP cannot buy a handgun in Florida, if he no longer maintains a physical address there? ...seems odd to me.

If he intends to make a residence there (when not otherwise ordered to live overseas), is he not still a resident of FL, under GCA definitions?

...and seriously, gentlemen, stop insulting each other! That is not how TFL operates.

 

[gyvel]

I believe the correct course of action would be to change my address on my drivers license to the proper address but I am unsure as to which address to put on the drivers license.

Pretty simple solution: If your mom is going to stay put for a while, use her address on your DL, if you intend to reside in Florida when you get discharged.

 

[gyvel]

How would anyone know your home of record is different than what's on your drivers license?

If he were to put that on a 4473, it would be falsifying a Federal document.

 

[Frank Ettin]

...So, are you saying that the OP cannot buy a handgun in Florida, if he no longer maintains a physical address there? .....

No, that's not what I'm saying. Go back and read post 32. I lay out the law there. The bottom line is that we can't know on the facts in front of us.

The issue is whether the OP is a resident of Florida for the purposes of the GCA. That is a question of fact, viz., are the facts such that they establish that the OP intends Florida to be his home when he is not at his duty station in Japan.

The sorts of facts that have generally been used to establish an intent to make a place one's home, even if it's as a second home, are things like (1) owning or renting property where he lives when present; (2) keeping some portion of his personal property at that property; (3) being present at his property in that State on some sort of regular basis over time. Whether the OP's actual situation is such that it leads to the inference that he intends to make his home in Florida when not at his duty station in Japan, or whether the facts are such that they lead to the inference that he is just visiting his mother in Florida, are things we can't know from the information now available to us.

And that is not a question that is appropriate for the OP to have answered by strangers in cyberspace. So, jnichols2's suggestion in post 35:

...You didn't say where in Florida you are, but the nearest military installation probably isn't far away.

The base Legal Office will have legal professionals who are well qualified to answer your question, at no cost....

is his sole useful contribution to this discussion.

But we also needed to shut down the noise diverting attention from the law that actually applies to the situation. There has been a tremendous amount of persistent misdirection here, making it difficult, if not impossible, to understand the legal principles that actually apply to the the question.

Understand also that a very real problem with the GCA is that it difficult for someone to buy a gun if he legitimately has no clear place of residence. This appears to be becoming a problem for persons, such as some retirees, who have chosen to lead a somewhat nomadic life. It's not all that unusual for some retired folks to sell their homes, buy a nice trailer or motorhome, and spend their time traveling -- having no fixed place of residence.

While tha goes beyond the scope of this thread, it is a real issue. And, AFAIK, there is no clear legal answer at present.

 

[gyvel]

As you stated that your Mother's address is the one on your drivers license, you should be just fine. That certainly seems to be your "Current Address". Don't tell the FFL things that will only confuse him/her.

Simply visiting his mom does not make her home his current residence address.

I don't believe he said his mom's address was what was on his DL

My mother lives in Florida and that is who I stay with when in Florida. Her address is not my home of record though.

That FFL is an idiot.

Many FFLs are.

 

[Theohazard]

So, are you saying that the OP cannot buy a handgun in Florida, if he no longer maintains a physical address there? ...seems odd to me.

If he doesn't physically reside in Florida per the requirements of the Gun Control Act, then he can't use Florida as his state of residence for the purpose of buying a firearm. Odd as it may be, that's federal law. I don't agree with it (and I doubt anyone else in this thread does), but that's what we got when Congress passed the 1968 Gun Control Act.

...and seriously, gentlemen, stop insulting each other! That is not how TFL operates.

I'll admit that I've been harsher than normal in my criticisms of Jnichols2's posts. But for good reason; he continues to advocate a position that advises the OP to commit a possible felony, despite all of us repeatedly pointing out how wrong he is and providing plenty of citations to back that up.

Pretty simple solution: If your mom is going to stay put for a while, use her address on your DL.

You still can't use that address on the 4473 unless you actually live there. If he used that address for the purpose of buying a firearm and he didn't actually make a home at that address, then he's committing a felony. Again, see post #23.

 

[jnichols2]

Theohazard,

I hate hypotheticals, but maybe that will help you see through the forest.

Using Frank Ettins post:

Originally Posted by Frank Ettin
For the purpose of the Gun Control Act of 1968, "State of residence" is defined as (27 CFR 478.11, emphasis added):
Quote:
State of residence. The State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State. If an individual is on active duty as a member of the Armed Forces, the individual's State of residence is the State in which his or her permanent duty station is located, as stated in 18 U.S.C. 921(b)....

Frank only included a definition of "State of Residence".

What might be the intent of this law?

The Gun Control Act of 1968 (GCA or GCA68) is a U.S. federal law that regulates the firearms industry and firearms owners. It primarily focuses on regulating interstate commerce in firearms by generally prohibiting interstate firearms transfers except among licensed manufacturers, dealers and importers.

Hypothetical:

OP was born and raised in Florida, and was a Florida resident when he joined the military. They send him to a base in Texas (or Japan).

He intends to return to his home state after his hitch.

He is now home on leave in Florida.

According to Frank, TWO things are required to be a resident of either state:
1. if he or she is present in a State
2. with the intention of making a home in that State

Which state is he a resident of?? You seem to say he is not a resident of either.

Now, also consider the Servicemembers Relief Act:

50 U.S. Code § 4001 - Residence for tax purposes

Current through Pub. L. 114-38. (See Public Laws for the current Congress.)

US Code
Notes
prev | next
(a) Residence or domicile
(1) In general
A servicemember shall neither lose nor acquire a residence or domicile for purposes of taxation with respect to the person, personal property, or income of the servicemember by reason of being absent or present in any tax jurisdiction of the United States solely in compliance with military orders.

According to you, this entire law was written for the purpose of defining the tax code. Let's also consider the stated purpose:

The purposes of this chapter are—
(1) to provide for, strengthen, and expedite the national defense through protection extended by this chapter to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and
(2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.

Considering that bearing arms is a "civil right", that appears to be much broader than where he pays taxes, does it not?

Now, try to take the entire situation in context, considering the text and intent of both laws.

Try very hard to not be myopic, and hold the entire context, and not quibble over a single word or phrase.

Once again:

Can the OP legally purchase a handgun in his "home state" of Florida?
In Texas (Japan)?
Anywhere???

Should he be denied the civil right to purchase a handgun in Florida? If so, where does he have a right to buy one?

I have continued to pursue this because I feel strongly that I am right.

Before calling me a crank or idiot, any detractor should also be prepared to answer all my questions.

 

[Spats McGee]

jnichols2, you've cited 50 U.S.C. § 4001 repeatedly. That statute is entirely irrelevant to the issues at hand here. In the quote below, I've emphasized why:

50 U.S. Code § 4001 - Residence for tax purposes

Current through Pub. L. 114-38. (See Public Laws for the current Congress.)

US Code
Notes
prev | next
(a) Residence or domicile
(1) In general
A servicemember shall neither lose nor acquire a residence or domicile for purposes of taxation with respect to the person, personal property, or income of the servicemember by reason of being absent or present in any tax jurisdiction of the United States solely in compliance with military orders.

Repeatedly citing it won't make it relevant.

Try very hard to not be myopic, and hold the entire context, and not quibble over a single word or phrase.

Hogwash. When dealing with the law, "a single word of phrase" can mean the difference between riches and ruin.

The purposes of this chapter are—
(1) to provide for, strengthen, and expedite the national defense through protection extended by this chapter to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and
(2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.

Considering that bearing arms is a "civil right", that appears to be much broader than where he pays taxes, does it not?

Do you know of any caselaw holding that the Soldiers' And Sailors' Relief Act protects any right associated with the acquisition or possession of firearms? If so, please provide us with some citation, or at least enough information that we can at least find the case. I haven't done extensive research, but what I have done has turned up nothing.

 

[jnichols2]

jnichols2, you've cited 50 U.S.C. § 4001 repeatedly. That statute is entirely irrelevant to the issues at hand here. In the quote below, I've emphasized why:

Hogwash. When dealing with the law, "a single word of phrase" can mean the difference between riches and ruin.

So, it's OK for you to repeatedly cite a "single phrase", but you reject my citing the overall intent and purpose of a law that disagrees with your position.

I continue to cite that law because IT IS relevant.

It determines that a serviceman that is sent overseas to defend his country is afforded the protection of not losing his domicile by doing so.

However; I am fully prepared to consider your caselaw holding that the Soldiers' And Sailors' Relief Act DOES NOT protect any right associated with the acquisition or possession of firearms.

 

[Spats McGee]

jnichols2, you've cited 50 U.S.C. § 4001 repeatedly. That statute is entirely irrelevant to the issues at hand here. In the quote below, I've emphasized why:

Hogwash. When dealing with the law, "a single word of phrase" can mean the difference between riches and ruin.

So, it's OK for you to repeatedly cite a "single phrase", but you reject my citing the overall intent and purpose of a law that disagrees with your position.

Yes. I've cited a phrase that's actually in the operative part of the statute. It doesn't say "for tax purposes or civil rights purposes," nor "or for other purposes." It says "for taxation purposes."

Further, it's a basic tenet of statutory construction that when a general statute competes with a specific one, and both cover the conduct at issue, the specific statute applies. " A well established canon of statutory interpretation succinctly captures the problem: 't is a commonplace of statutory construction that the specific governs the general.'” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2070-71 (2012)

Finally, as another basic tenet of statutory construction, the intent of a law is really only important if and when the language of a statute is ambiguous. "Our review of the six claims recognized by the Ninth Circuit requires us to interpret a number of ERISA's provisions. As in any case of statutory construction, our analysis begins with 'the language of the statute.' . . . . And where the statutory language provides a clear answer, it ends there as well." Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999).

Is there some ambiguity in "for taxation purposes" of which I am unaware?

I continue to cite that law because IT IS relevant.

I suspect that you keep citing it because you want it to be relevant. Unless and until an appellate court rules that it is, it isn't.

It determines that a serviceman that is sent overseas to defend his country is afforded the protection of not losing his domicile by doing so.

For tax purposes, that's correct. You have provided no authority for the proposition that it provides anything remotely similar for purposes of purchasing a firearm, though.

However; I am fully prepared to consider your caselaw holding that the Soldiers' And Sailors' Relief Act DOES NOT protect any right associated with the acquisition or possession of firearms.

I have Westlaw and have run a searches for "firearm," "gun," and "pistol." for the entire Servicemembers' Relief Act (which I think used to be called "Soldiers' and Sailors' Relief Act," but am not sure). I have also scanned the notes of decisions on any section that I thought would enlighten us on this issue. I found no appellate cases ruling on the issue of whether the SRA has any impact on a service member's residency status for purposes of the GCA.

Do you know of anything contrary to that, other than your bald assertions? A case? A law review article?

Last, but not least, you cited this:

The purposes of this chapter are--
(1) to provide for, strengthen, and expedite the national defense through protection extended by this chapter to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and
(2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.

(emphasis by jnichols2)

Note the language "to provide for temporary suspension of judicial and administrative proceedings and transactions."

(1) Since when is the purchase of a firearm a "judicial or administrative proceeding or transaction?" It's a transaction, but it's neither judicial or administrative.

(2) It is "to provide for temporary suspension" of the affected activities. Even if a firearm purchase were covered (& I don't think it is), the SRA does not appear intended to allow them to go through, but only to suspend the affected activities.

 

[Frank Ettin]

...Hypothetical:

OP was born and raised in Florida, and was a Florida resident when he joined the military. They send him to a base in Texas (or Japan).

He intends to return to his home state after his hitch.

He is now home on leave in Florida.

According to Frank, TWO things are required to be a resident of either state:
1. if he or she is present in a State
2. with the intention of making a home in that State

Which state is he a resident of?? You seem to say he is not a resident of either.
....

According to 27 CFR 478.11, he is a resident of wherever his permanent duty station is. According to ATF Rul. 2010-6 he might also be considered a resident of a State in which he is present and which he intends to make his home. With regard to the OP's question, we don't have sufficient information to establish that he intends to make his home in Florida.

With regard to the OP's circumstances, he needs to consult with a lawyer who can review all relevant facts and offer a professional opinion as to whether those facts would support the OP's claim that Florida is his home when present there. That is beyond the scope of an Internet gun forum.

...According to you, this entire law was written for the purpose of defining the tax code....

No, the entire law, Chapter 50 of Title 50 of the United States Code is broader. But the sole purpose of Section 4001 of Title 50, the statute you keep referring to, is to address a service member's residency for tax purpose, and for nothing else.

...Considering that bearing arms is a "civil right", that appears to be much broader than where he pays taxes, does it not?

Now, try to take the entire situation in context, considering the text and intent of both laws.

Try very hard to not be myopic, and hold the entire context, and not quibble over a single word or phrase....

Phooey! The statutes say what they say. If you contend that 50 USC 4001 has broader application to the question of residency for the purposes of buying a gun, it's your burden to support that contention with reference to controlling court decisions.

...I have continued to pursue this because I feel strongly that I am right....

You might feel strongly that you're right. But two real life lawyers (Spats McGee and I) have been explaining why the law does not support you. If you believe that the law should be different or should be applied differently, you need to address yourself to Congress and the courts, not an Internet gun forum.

 

[jnichols2]

I was hoping you would be kind enough to answer the two questions I posed.


1:

OP was born and raised in Florida, and was a Florida resident when he joined the military. They send him to a base in Japan.

He intends to return to his home state after his hitch.
He is now home on leave in Florida.
According to the Servicemans Relief Act, his "domicile" remains in Florida.

According to Frank, TWO things are required to be a resident of either state:
1. "if he or she is present in a State"
2. "with the intention of making a home in that State"

Which state is he a resident of?? You seem to say he is not a resident of either.


2:
Considering that bearing arms is a "civil right", that appears to be much broader than where he pays taxes, does it not?

Can the OP legally purchase a handgun in his "home state" of Florida?
In Texas (Japan)?
Anywhere???

Should he be denied the civil right to purchase a handgun in Florida? If not, where does he have a right to buy one?


Surely, your expertise can answer those questions from a simple man?

The answers to those questions are sufficient.

 

[Frank Ettin]

...I was hoping you would be kind enough to answer the two questions I posed....

Those questions have been answered.

 

[Tactical Jackalope]

You need to be a Florida resident in order to purchase a firearm here. I've worked for many gun shops. And I've dealt with situations like this before as well. And as for the license, if the address that he wrote down on the 4473 is different from his license he needs to show a utility bill from the address written of at least 3 months.

 

[Al Norris]

Considering the only information we have, as it concerns this thread, is what the OP has stated in his 2 posts; the actual legalities, as it regards purchasing firearms, have been cited. Anything else is pure speculation.

Therefore, asked and answered.

Closed.