Question about selling a gun...

S

Steven_Seagal

New member
I know if you are selling in state (I'm in Texas), you can simply hand your gun over to a buyer and receive cash for it, and that's that.

But what about the whole background check step? How does a civilian without the proper tools at his disposal, know if the person he is selling a gun to is not a felon, or someone with domestic abuse history? Is this situation simply a judgment call on the part of the seller?
 
When I lived in AZ, I was in a similar situation. I was going to be moving back to NY, and didnt have a permit, so I wasnt able to take the gun with me. I called the local police department in AZ and asked the proper way to sell the gun.

Turns out, a face to face sale between non FFL people is just as you described. You give him the gun, he give you the cash. Non FFL private sales do not require a background check in that state. It only becomes illegal if you sell to someone that you know (or have resonable suspicion) is not allowed to own one.

Being from NY, that idea was VERY foreign to me, so I required the person I sold the gun to to provide a bill of sale with their drivers license information and a signature, also containing the serial number of the gun. He looked at me as if I was crazy, but it made me feel a lot better and safer with the whole situation.

-George
 
It's my understanding that in-state person to person sales are not regulated and therefore do not require background checks. That's the basis behind the so-called "gun show loophole" that gets the anti's into such a state. If you're concerned then ask around, maybe you can find a gun dealer or pawn shop owner who can act as intermediary. Of course, then the buyer will have to pay an FFL transfer fee, but that's a small price to pay for a good night's sleep.
 
Where I live, private sales are ok, so long as the seller is the legal owner of the gun in the first place and the buyer is legally able to buy. For a handgun, that means a purchase or concealed carry permit. For the 1 handgun I did sell privately, made it clear ahead of time they'd need to show me one before I sell.

For rifle or handgun, I also write up 2 bills of sale which include the buyer & seller name & town/state, gun description & serial #, date, and, if it's a handgun, a statement by me that the buyer has a valid permit. I also include the permit # and the county that issued the permit. We both sign each, and we each keep a copy.

The gentleman that I sold a handgun to had a CC permit. He also made photocopies of it and his DL ahead of time for me. Purchase permit issued by our county are for single purchases only, in which case, I believe I'm required to take it and file it with my (sellers) receipt.
 
Several things:

[1] Even if your state allows private, face-to-face sales, under federal law that would be permissible only if you are both residents of the same state. Any transfer to a resident of another state must, under federal law, go through an FFL. In the case of a handgun, it must be an FFL in the transferee's state of residence. In the case of a long gun, it may be any FFL as long as: (1) the long gun is legal in the transferee's state of residence; and (2) the transfer complies with the laws of both the transferee's state of residence and the state in which the transfer takes place. (Some FFLs will not, for business reasons, transfer a long gun to a resident of another state.)

[2] If your state allows private, face-to-face sales, you can have liability only if you knew, or had reason to know, that the transferee was a prohibited person or there was some reason why the transfer would be improper. Of course, this is a rather vague standard.

[3] Some sellers, to better protect themselves, like to get identification from the buyer and may even ask to see a local concealed weapons permit. That gives the seller reason to believe that the transferee is a resident of the state and is not a prohibited person. Some buyers will balk and want to preserve their privacy.

[4] I tend to recommend that sellers document any transaction in writing including the time, date, place, transferees name, address and ID. There is the chance that a gun you sell may subsequently be used in a crime. It can often be traced back to you, even in the absence of registration. In such a case, you would find it helpful to have documentation showing that you sold the gun. (And if you're buying, it might help to have documentation of your purchase, if the gun had previously been reported stolen.) Some buyers (or sellers) balk at leaving a paper trail.

[5] It's up to you to decide on what terms you will sell (or buy) a gun. Documenting the deal could be a deal breaker for some folks. Not documenting the deal would be a deal breaker for others. You need to decide how you want to handle it and what risks you're willing, or unwilling, to take.

[6] You can always insist on going through an FFL, but that would add cost and might kill a potential deal.

[7] Some states regulate, in some way, private party gun transactions between residents. California, Michigan, New York and Massachusetts come immediately to mind, but there may be others.
 
#4 -Yes I would only document carefully or no sale ! I knew a guy who didn't and he spent a day being educated by the FBI and ATF - he had sold a gun to a criminal and it was used in a crime !! You don't really want to sell to a criminal do you ??
 
CYA seems the rule here.
Even if you aren't breaking any laws as such. I would broker the deal through a FFL dealer for non CCP holders (at my expense if needed) or request to see & possibly photocopy CCP holders ID/permit. That's just me, YMMV.
I would be worried about potential Civil suit if Murphy involves himself in the process, i.e. little Johnny is dead/crippled because I didn't take that extra step. Civil proceedings are too unpredictable for my liking. Due diligence prior to/during the sale is cheaper than a lawyer after the sale.
Maybe I worry too much.
But then I'm a "buy & hold" kinda guy, and I have the clutter to prove it ;)
 
maybe you can find a gun dealer or pawn shop owner who can act as intermediary. Of course, then the buyer will have to pay an FFL transfer fee, but that's a small price to pay for a good night's sleep.
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I have to disagree with this and most of the thread I guess! The way you guys lay it down, it sounds like a perfectly reasonable CYA to document everything you can and broker the deal through a ffl. Incidently, did you know that you can pull a background check on them yourself? It costs about 50 bucks. After all, a small price to pay for a good nights sleep, right? Why stop there? What if the ffl is corrupt? It might be a good idea to call the police in to witness the transfer at the pawn shop and double check all serial numbers and such. If the ffl wrote down a number wrong well, who knows what could happen?

All this is totally ridiculous because it discounts personal judgement. It is a judgement call and if you do not have common sense or judgement then you shouldn't be dabbling in big boy toys. Face to face, look them in the eye, trust your judgement. Cultivate judgement if you have none. What's the vibe? Working man, family man, crackhead, alchoholic? How do they talk? What's thier posture? What do they chat about? It's as easy as that.

Uh-oh, maybe they are a serial killer and have you fooled into thinking they are a nice guy...No one is that clean, so if they are "too nice" that sets the hinky meter off as well. There is a tendancy to overcompensate for the degree of evil they hold in thier heart. You can see it if you look.

If you are blind, broker the deal. but it seems to me that only a short sighted individual would use a broker for fear of making a mistake so attempt to buy a guarentee of no liability from his government that is there to help. Oh my God, the world is dangerous, stand up and be a man and cultivate and use your brain for once. Judgement can be developed! If you sit your brain aside and let the authorities handle the details that you should have...you lose some more judgement. Soon, there you will be unable to think for yourself and have to be codependant on your government, which is what they want. You can be safe and let them handle it, but then they call the shots!

But it does sound so good and responsible to document everything and use the system huh?
 
No matter what , when you sell your gun you should always see the other persons ID, write down their name and particulars and keep that with the bill of sale. That is common sense.
 
But what about the whole background check step? How does a civilian without the proper tools at his disposal, know if the person he is selling a gun to is not a felon, or someone with domestic abuse history? Is this situation simply a judgment call on the part of the seller?
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Ask if they have a permit to purchase pistols and revolvers as we are issued in Iowa and Nebraska, have been for years. If they have one, they might just be ok. If not, well I wont sell to them.
 
Section § 46.06. UNLAWFUL TRANSFER OF CERTAIN WEAPONS. (of the Texas Revised Statutes)

A person commits an offense if the person:
  • (1) sells, rents, leases, loans, or gives a handgun to any person knowing that the person to whom the handgun is to be delivered intends to use it unlawfully or in the commission of an unlawful act;
  • (2) intentionally or knowingly sells, rents, leases, or gives or offers to sell, rent, lease, or give to any child younger than 18 years any firearm, club, or illegal knife;
  • (3) intentionally, knowingly, or recklessly sells a firearm or ammunition for a firearm to any person who is intoxicated;
  • (4) knowingly sells a firearm or ammunition for a firearm to any person who has been convicted of a felony before the fifth anniversary of the later of the following dates:
    (A) the person's release from confinement following conviction of the felony; or
    (B) the person's release from supervision under community supervision, parole, or mandatory supervision following conviction of the felony;
  • (5) sells, rents, leases, loans, or gives a handgun to any person knowing that an active protective order is directed to the person to whom the handgun is to be delivered; or
  • (6) knowingly purchases, rents, leases, or receives as a loan or gift from another a handgun while an active protective order is directed to the actor.

That is what the state law in TEXAS is. Federal law has a few more things such as:

Q: To whom may an unlicensed person transfer firearms under the GCA?

A person may sell a firearm to an unlicensed resident of his State, if he does not know or have reasonable cause to believe the person is prohibited from receiving or possessing firearms under Federal law. A person may loan or rent a firearm to a resident of any State for temporary use for lawful sporting purposes, if he does not know or have reasonable cause to believe the person is prohibited from receiving or possessing firearms under Federal law. A person may sell or transfer a firearm to a licensee in any State. However, a firearm other than a curio or relic may not be transferred interstate to a licensed collector.

[18 U.S.C. 922(a)(3) and (5), 922(d), 27 CFR 478.29 and 478.30]

AND

Q: Are there certain persons who cannot legally receive or possess firearms and/or ammunition?

Yes, a person who —

1. Has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year;
2. Is a fugitive from justice;
3. Is an unlawful user of or addicted to any controlled substance;
4. Has been adjudicated as a mental defective or has been committed to a mental institution;
5. Is an alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa;
6. Has been discharged from the Armed Forces under dishonorable conditions;
7. Having been a citizen of the United States, has renounced his or her citizenship;
8. Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner; or
9. Has been convicted of a misdemeanor crime of domestic violence
10. Cannot lawfully receive, possess, ship, or transport a firearm.

I am not a lawyer, but I can use google.:D YMMV
Joat
 
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I surmise that if you have the ability to do a private transfer and instead go through an ffl that you are helping to speed up the process of our gun rights being taken away.
 
In Texas, there is no legal requirement for you to do any sort of background check. The legal requirement is that you "have no reason to suspect" that the buyer is not eligible to legally possess a handgun.

However (just for me) I am not satisfied with clearing that low bar. In order for me to sleep well at night, I do it this way:

Join the Texas CHL forum. http://www.texaschlforum.com/
Post your handgun for sale there.
Sell to a Texas CHL holder. He is, by definition, a law abiding citizen and a "clean" buyer. He has passed the FBI background check.

Note--you do not have to be a Texas CHL holder to join/post on the forum, but if you aren't...why not?

I have bought and sold several handguns on that board. All buyers and sellers were/are TX CHL holders, as am I.

I sleep quite well at night.

Edited to add:
If you are selling to a non-CHL holder, go through an FFL, and have the buyer fill out a 4473. He will have to pass the "instant check" via phone call to the BATFE. Once again, you are covered. If you are a nice guy (I am), split the cost with the buyer--should be around $15-25 total.

I can afford $7-12. Small price to pay for peace of mind. :)
 
Edward429451 said:
...it discounts personal judgement. It is a judgement call and if you do not have common sense or judgement then you shouldn't be dabbling in big boy toys. Face to face, look them in the eye, trust your judgement. Cultivate judgement if you have none. What's the vibe?...
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That's a fine idea.

I, and more than a few of my colleagues, live in very nice houses (which are paid for), in nice neighborhoods, drive nice cars (which are paid for), and generally lead materially comfortable lives, all financed in large part by contributions of folks who should have known better, but who needed our services to get them out of trouble they could otherwise probably have avoided if they didn't have extravagant estimates of their ability to judge the character of complete strangers and/or if they weren't disinclined to take some fairly simple precautions when conducting business to minimize foreseeable risks.

In my professional life it's been my privilege to meet any number of thoroughly dishonest folks who gave every appearance of being fine, upstanding citizens. Many dishonest folks understand that the only way to survive dishonestly for any length of time is to avoid appearing to be dishonest, and many have gotten very good at that. Not every crook looks like a gangbanger or an outlaw biker or a meth-head.

Edward429451 said:
...stand up and be a man and cultivate and use your brain for once....
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One could say that part of using his brain is taking reasonable steps that may help reduce legal and business risks. And it helps to understand and recognize the nature of the risks.

If you're the seller of a gun, having documentation that on X date you sold this gun (identified by description and serial number) to a person who showed you specified forms of identification like a driver's license and concealed weapons permit will go a long way toward conclusively establishing that (1) you had no reason to believe that he was not a resident of your State; (2) you had no reason to believe that he was a prohibited person; and (3) that after that date you no longer possessed the gun. Even if the ID was forged, you've still established your due diligence. You've also gone a long way toward establishing that if the gun was later used in a crime, you no longer possessed it at the time.

And if you're buying a gun in a private transaction, similar documentation will help establish when and how you came into possession of it. That could be helpful if it turns out that it was previously reported stolen.

But as I mentioned in my first post in this thread, it's finally up to you on what terms and in what way you want to conduct your business (as long as it's legal). And in many cases, even if you're haphazard about it, things will work out. But then again, there's always the chance that you'll wind up helping a colleague of mine buy another fancy new car. (I'm retired now, so it doesn't matter to me.)
 
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CYA is the key here.

If a LE picks up a gun you sold 6 months before, started a trace on it and it was traced to you. It sure would be nice(smart) for you to have a paper trail with info on who you sold it to.
Remember the ATF has NO database for firearms, only the info on the gun to allow a trace to start at whoever manufactured it. Then a bunch of phone calls to trace it thru sales.
 
Being responsible abpout weapons tranfers is a noble and prudent thing to do. I myself have turned people down who wanted to buy a gun. In no way am I saying I do not care, or would not take care to be reasonably sure that I would not be selling my gun to a punk.

That said, all your lawyer talk is simple fear mongering. Everybody wants to do the right thing, and if they know there is a possibility that it could go sour somehow then they will play it safe and take the precautions of the fear mongers.

I know full well that not all crooks look the part, and if one knows what to look for, it is impossible to lie. Take you, a lawyer for example, We know you know how to lie with a straight face and hold your hands palm up, but how do you stop the finger twitch, the eyebrow, the shifting. You can not stop yourself from manifesting the lie with your body language. Ok, maybe 1 in a 1000 people know these things, but if people spent as much energy cultivating judgement and learning body language as they do to ask how to sell it without the police ever being able to mess with them...you wouldn't need an ffl or a lawyer/cop to make your decisions for you. You could confidently make the decision yourself. I will not use an ffl for a private transfer. If the potential buyer is hinky enough to make me want an ffl...no sale. That's all there is to it. So I still wouldn't need an ffl or a lawyer.
 
My solution? Don't :p

"Buy low, sell never!"

I've done countless face-to-face transactions, always as the buyer. Some sellers wanted copies of my DL and CHL, which I had no problem providing; others wanted nothing more than portraits of dead statesmen. Franklin seems to a recurring favorite. Never a problem; I don't commit crimes with guns, and the po-po have never knocked on my door seeking a gun I purchased.
 
I have to disagree that fiddletown's "lawyer talk is simple fearmongering." He (or perhaps she) has simply outlined some very good reasons for documenting your transactions: to reduce legal and business risks. Even if the seller relies on "the vibe" that he or she gets from a potential buyer, documenting the sale remains a good idea. Mind you, I'm not discounting the value of using your judgment. If someone gives you an icky vibe while trying to buy a deadly weapon from you, survey says decline to sell. Judgment and documentation are not mutually exclusive, though.

It's not just about violent felons or liars, either. Hypothetical scenario: Let's say I bought a pistol from an FFL, and after several years, decide to sell it. I run an ad in the paper to sell the pistol and some bullets for it. I am then contacted by Mr. Joe Honest, who shows up to buy my pistol and bullets. For the sake of the scenario, let's assume that Mr. Joe Honest is honest, hard working, and has no violence or felonies on his record. He hands me some cash, I hand him the pistol and bullets, and he leaves. A couple of years later, he's been out at the range, and (perhaps stupidly) leaves the range with the pistol still loaded and goes home. Upon arrival, he discovers his wife in bed with his neighbor. Surely you can see how this drama could get really ugly, really fast. Even if Mr. Honest never once lied to me, and had zero evil intentions when he left my house, I may have to demonstrate to someone later that I no longer owned that pistol at the time when a crime was committed. The easy way to do that is to get the documents on the front end. The hard way is to try to explain it to the prosecuting attorney five years down the road when the pistol is finally recovered and traced back to the last person to purchase through an FFL. Do you have any idea how often prosecuting attorneys hear the line "it wasn't my pistol?"
 
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