Selling handguns to an individual

[Aguila Blanca]

Except that there is no legal requirement for "reasonable knowledge" with the sale of knives, axes, or chain saws.

Nor is there any legal requirement (except in a few states) for "reasonable knowledge" for the sale of a firearm. The federal law is that you cannot transfer a firearm to a person IF you know or have a reasonable suspicion that the prospective buyer is a prohibited person. If you know nothing at all about the buyer, then you DON'T know he's prohibited, and the law does not require that you take extraordinary measures to find out.

 

[Spats McGee]

Hiding behind minimal person-to-person transfer requirements while claiming privacy reasons and shouting "thou shall not infringe" shows poor stewardship of our firearms and our right to keep them.

I was mostly in agreement with you until I got to this paragraph. It's your right to decline to sell to anyone you choose, but accusing people who wish to maintain a modicum of privacy and anonymity of poor stewardship is a cheap shot. I know several very respectable people who prefer (when possible) to buy in private, face-to-face transactions specifically to avoid creating a paper trail. I understand that and I respect it.

I overlooked Dashunde's statement earlier and I have to say that I'm with AB on this one. I understand the pros and cons of a paper trail. I understand why someone would want one, and I understand why someone wouldn't. The latter should not necessarily be chalked up to shady activities.

 

[Doyle]

Nor is there any legal requirement (except in a few states) for "reasonable knowledge" for the sale of a firearm. The federal law is that you cannot transfer a firearm to a person IF you know or have a reasonable suspicion that the prospective buyer is a prohibited person. If you know nothing at all about the buyer, then you DON'T know he's prohibited, and the law does not require that you take extraordinary measures to find out.

I would argue that a buyer who states he does not have a government document showing proof of residence provides reasonable knowledge that his is in fact not a resident.

 

[FITASC]

Whether you think they should be is irrelevant. The fact is that they are not.

Quote:
Originally Posted by FITASC
..."reasonable" can be as simple as asking if he is prohibited or is a resident. There are no requirements (in most states at least) to actually provide proof....
You might not have the final word on what is or is not reasonable. If things go sour, it might well be up to a jury to decide what would have been reasonable under the circumstances.

And the FACT is that asking for photo ID is irrelevant in most scenarios.

I would argue that a buyer who states he does not have a government document showing proof of residence provides reasonable knowledge that his is in fact not a resident

And he/she could be a legal alien who does not have a local ID

I was mostly in agreement with you until I got to this paragraph. It's your right to decline to sell to anyone you choose, but accusing people who wish to maintain a modicum of privacy and anonymity of poor stewardship is a cheap shot. I know several very respectable people who prefer (when possible) to buy in private, face-to-face transactions specifically to avoid creating a paper trail. I understand that and I respect it.

Exactly, and anyone who wants my personal info from a license like address or DL number lost a sale - not required where I live and will not be given.

 

[Tom Servo]

And he/she could be a legal alien who does not have a local ID

Actually, aliens are required to carry ID at all times. The lack of ID would be a definite red flag.

At what point does blissful ignorance become negligence? I wouldn't want to be in a situation in which that line gets drawn by a prosecutor or a grand jury.

 

[Frank Ettin]

...At what point does blissful ignorance become negligence? I wouldn't want to be in a situation in which that line gets drawn by a prosecutor or a grand jury.

And if it reaches that point at all, you'll be in for a lawyer's bill of at least several thousand dollars. If it becomes a question for a trial jury, you'll have legal bills on the order of $50,000 plus.

Is there enough upside in the sale of any gun you own to warrant that sort of exposure?

 

[FITASC]

Never said they didn't have to have an ID, said "local" ID; foreign student comes to mind, an international worker who is here for a year or so, etc.

 

[Frank Ettin]

Never said they didn't have to have an ID, said "local" ID; foreign student comes to mind, an international worker who is here for a year or so, etc.

In most cases an alien here on any sort of nonimmigrant visa is prohibited under federal law from having a gun [or ammunition] in his possession -- let alone buying one.

 

[FITASC]

I have seen threads on various forums (and I thought here as well) where this was asked and answered that students could indeed own and buy guns, as well as those here on work assignment.......

 

[Frank Ettin]

I have seen threads on various forums (and I thought here as well) where this was asked and answered that students could indeed own and buy guns, as well as those here on work assignment....

A lot of people, especially on other forums, are very poorly informed about firearms law.

We recently went into the issue here in this thread. So let's look at federal law.

• 18 USC 922(g), emphasis added:

  (g) It shall be unlawful for any person—
  
  

  (1) ...
  
  (2) ...
  
  (3) ...
  
  (4) ...
  
  (5) who, being an alien—
  
  

  (A) is illegally or unlawfully in the United States; or
  
  (B) except as provided in subsection (2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
  ​

  (6) ...
  
  (7) ...
  
  (8) ...
  
  (9) ...​

  
  to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

  
  
• 18 USC 922:

  Provisions Relating to Aliens Admitted Under Nonimmigrant Visas.—
  
  

  (1) Definitions.— In this subsection—
  
  

  (A) the term “alien” has the same meaning as in section 101(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(3)); and
  
  (B) the term “nonimmigrant visa” has the same meaning as in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)).​

  
  (2) Exceptions.— Subsections (d)(5)(B), (g)(5)(B), and (s)(3)(B)(v)(II) do not apply to any alien who has been lawfully admitted to the United States under a nonimmigrant visa, if that alien is—
  
  

  (A) admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States;
  
  (B) an official representative of a foreign government who is—
  
  

  (i) accredited to the United States Government or the Government’s mission to an international organization having its headquarters in the United States; or
  
  (ii) en route to or from another country to which that alien is accredited;
  ​

  (C) an official of a foreign government or a distinguished foreign visitor who has been so designated by the Department of State; or
  
  (D) a foreign law enforcement officer of a friendly foreign government entering the United States on official law enforcement business.
  ​

  (3) Waiver.—
  
  

  (A) Conditions for waiver.— Any individual who has been admitted to the United States under a nonimmigrant visa may receive a waiver from the requirements of subsection (g)(5), if—
  
  

  (i) the individual submits to the Attorney General a petition that meets the requirements of subparagraph (C); and
  
  (ii) the Attorney General approves the petition.​

  
  (B) Petition.— Each petition under subparagraph (B) shall—
  
  

  (i) demonstrate that the petitioner has resided in the United States for a continuous period of not less than 180 days before the date on which the petition is submitted under this paragraph; and
  
  (ii) include a written statement from the embassy or consulate of the petitioner, authorizing the petitioner to acquire a firearm or ammunition and certifying that the alien would not, absent the application of subsection (g)(5)(B), otherwise be prohibited from such acquisition under subsection (g).​

  
  (C) Approval of petition.— The Attorney General shall approve a petition submitted in accordance with this paragraph, if the Attorney General determines that waiving the requirements of subsection (g)(5)(B) with respect to the petitioner—
  
  

  (i) would be in the interests of justice; and
  
  (ii) would not jeopardize the public safety.​

  
  
• Let's also look at the interstate commerce issue. It's really a red herring. There have certainly been plenty of prosecutions for being a felon, an unlawful drug user, or other prohibited person in possession of a firearm. And to understand what constitutes possession with a sufficient nexus to interstate commerce for the purposes of a violation of 18 USC 922(g) it doesn't matter what the disqualifying condition is.
  
  So let's look at some cases:
  
  
  • In U.S. v. Barron-Rivera, 922 F.2d 549 (C.A.9 (Wash.), 1991) affirmed Barron-Rivera's conviction for being an alien in possession of a firearm. Barron-Rivera's claimed reversible error in that the government failed to prove the necessary intent.
    
    The court of appeal noted, at 551:

    ...Barron-Rivera argued that the gun was in his wife's residence at the time he re-entered the United States and moved back into that residence. Accepting that contention, the district court, nonetheless, found that Barron-Rivera's possession of the firearm was voluntary because he permitted the firearm to remain in the house after he acquired knowledge of its presence....

    
    In affirming the conviction, the court of appeal found, at 551 -- 552:

    ...In other words, by continuing to reside in the apartment in which the gun was located, he voluntarily and knowingly possessed the gun...

    
    
  • In U.S. v. Chesney, 86 F.3d 564 (C.A.6 (Tenn.), 1996), the Sixth Circuit affirmed, against a Commerce Clause challenge Chesney's conviction for being a felon in possession of a firearm.
    
    In rejecting Chesney's assertion that the 18 USC 922(g) is unconstitutional, the court of appeal noted, at 568 -- 569:

    ...another panel of this court has held § 922(g)(1) to be constitutional. In United States v. Turner, 77 F.3d 887 (6th Cir.1996), a unanimous panel held that " § 922(g)(1) represents a valid exercise of legislative power under the Commerce Clause." Id. at 889. As this court wrote in Turner, "Every court of appeals that has been faced with this question since Lopez has held that the jurisdictional element of § 922(g) provides the requisite nexus with interstate commerce ....

    
    In rejecting Chesney's assertion that the statute can not be applied in his case, the court of appeal noted, at 570 -- 571:

    ...Chesney, unlike the defendant in Turner, also challenges § 922(g)(1) as applied to him by arguing that his conviction is unconstitutional because the government failed to prove any "substantial nexus between the crime charged and interstate commerce." Chesney stipulated that the gun had moved in interstate commerce, and such a stipulation is sufficient evidence to support Chesney's conviction pursuant to § 922(g)(1). See United States v. Lee, 72 F.3d 55, 58 (7th Cir.1995) (stipulation that gun was in or affecting commerce sufficient evidence to support a conviction under § 922(g)(1)). ...
    
    The Supreme Court has held that proof that a firearm moved in interstate commerce at any time is sufficient to meet the government's burden of proving the "in commerce or affecting commerce" element of § 1202(a), the predecessor to § 922(g)(1). Scarborough v. United States, 431 U.S. 563, 566-67, 97 S.Ct. 1963, 1964-65, 52 L.Ed.2d 582 (1977). Although Scarborough was decided as a matter of statutory construction, the Court noted that Congress knew how to assert " 'its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce,' " and that Congress intended to exercise the full extent of its Commerce Clause power when enacting § 1202(a). Id. at 571-72, 97 S.Ct. at 1967-68 ...
    
    All of the courts of appeals to consider the issue since Lopez have concluded that § 922(g)(1), as construed to require only the minimum nexus to commerce approved in Scarborough, is constitutional. See, e.g., McAllister, 77 F.3d at 390; Sorrentino, 72 F.3d at 296; Shelton, 66 F.3d at 992; Hanna, 55 F.3d at 1462 n. 2.,...

    
    
  • In U.S. v. Singletary, 268 F.3d 196 (3rd Cir., 2001), the Third Circuit affirmed a conviction for being a felon in possession against an attack on the constitutionality of 922(g), at 197:

    ...Singletary contends that the felon-in-possession statute is unconstitutional because the conduct it proscribes -- the intrastate possession of a firearm -- does not have a substantial effect upon interstate commerce, and thus does not constitute a valid exercise of Congress' authority under the Commerce Clause. Specifically,...

    
    In rejected Singletary's assertion, the court of appeal noted, at 200:

    ...the Court in Scarborough v. United States had the opportunity to address squarely "whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce." 431 U.S. 563, 564 (1977). The Court accepted the Government's contention that it only need prove that "the firearm possessed by the convicted felon traveled at some time in interstate commerce." Id. at 568. Thus, the Scarborough Court established the proposition that the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession a sufficient nexus to interstate commerce to fall within the ambit of the statute. Because S 1202(a) is the predecessor to the current felon-in-possession statute, this statutory construction applies equally to S 922(g)(1)....

    
    
  • In United States v. Hoyle, 697 F.3d 1158 (10th Cir., 2012), the Tenth Circuit affirmed Hoyle's conviction for being a felon in possession. In doing so the court of appeal noted, at 1165:

    ... “Section 922(g) requires that the firearm be possessed ‘in or affecting commerce.’” United States v. Williams, 403 F.3d 1188, 1195 (10th Cir.2005) (quoting 18 U.S.C. § 922(g)). The Supreme Court has affirmed the Fourth Circuit's holding that: “[T]he interstate commerce nexus requirement of the possession offense was satisfied by proof that the firearm [defendant] possessed had previously traveled in interstate commerce.” Scarborough v. United States, 431 U.S. 563, 566, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)...

It appears to me that unless a non-immigrant alien has a hunting license (or qualified for one of the other exceptions) he is a prohibited person.

 

[FITASC]

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

This interesting because I have friends from another country who come here in 3 month increments for 6 months at a time and they bring their own guns and buy ammo all the time which would seem to violate:

t appears to me that unless a non-immigrant alien has a hunting license (or qualified for one of the other exceptions) he is a prohibited person.

This comment............guess I a somewhat confused......

 

[James K]

The ID would not have to be a drivers license, but I would not accept anything that was not a government issued picture ID, with the local address on it. And I would, if at all possible, photograph or photocopy the ID. That would keep an ATF scammer from claiming that he never showed you ID or that he showed you an out-of-state ID.

The best practice, IMHO, is to meet the buyer at a dealer's store, and have him do the paperwork (for a fee). That is required in some states; many see it as limiting "freedom" but it also serves to protect the innocent from "sting" operations.

Jim

 

[Frank Ettin]

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

This interesting because I have friends from another country who come here in 3 month increments for 6 months at a time and they bring their own guns and buy ammo all the time which would seem to violate:

t appears to me that unless a non-immigrant alien has a hunting license (or qualified for one of the other exceptions) he is a prohibited person.

This comment............guess I a somewhat confused......

I guess you'll have to stay confused, because I've cited and quoted the applicable law. We also have insufficient facts to decide whether or not your friends might come under one of the exceptions; nor will we be exploring that possibility, because we've already drifted too far off topic.

 

[Dashunde]

If things go sour, it might well be up to a jury to decide what would have been reasonable under the circumstances.

I have had to testify in a case like that. Person A sold a gun to Person B without even checking ID. Was he legally required to? No.

Then Person B used the gun in a homicide. Person A wasn't charged, but the victim's family took civil action on the matter.

At what point does blissful ignorance become negligence? I wouldn't want to be in a situation in which that line gets drawn by a prosecutor or a grand jury.

And if it reaches that point at all, you'll be in for a lawyer's bill of at least several thousand dollars. If it becomes a question for a trial jury, you'll have legal bills on the order of $50,000 plus.
Is there enough upside in the sale of any gun you own to warrant that sort of exposure?

Nope.

All of that pretty much spells out why I photo the ID, and I tell them upfront about it.
I couldn't care less about offending the buyer or a losing the sale.
I'm not there to make a buck or desperately pawn off a gun to anyone with cash.
I'll have their identity, and be able to easily show due diligence beyond the opaque private transfer laws... its just good cya.

It's your right to decline to sell to anyone you choose, but accusing people who wish to maintain a modicum of privacy and anonymity of poor stewardship is a cheap shot. I know several very respectable people who prefer (when possible) to buy in private, face-to-face transactions specifically to avoid creating a paper trail. I understand that and I respect it.

I cant really say I understand that... why does does the paper trail matter if its all legit?
It's not as if the paper is getting sent to the ATF for future door knocks and confiscation.
But... the papers could sure help if your old gun turns up at a crime scene, or if your buddy unwittingly sells you a stolen gun, or...

What I said isn't really intended as a cheap shot, although I can see how it could read that way.
Its mostly aimed at those who talk big "I don’t care what Uncle Sam says, this is a free country, I'll do what I want and sell whatever I want to whoever I want".
We all know that guy... the one who routinely makes us all look bad.

 

[DaleA]

Tom-Post #38

I have had to testify in a case like that. Person A sold a gun to Person B without even checking ID. Was he legally required to? No.

Then Person B used the gun in a homicide. Person A wasn't charged, but the victim's family took civil action on the matter.

Can you tell us the outcome of the civil suit?

 

[Tom Servo]

Can you tell us the outcome of the civil suit?

I haven't heard back from the guy, but I can see the suit being successful.

If I sell a gun under suspicious circumstances to someone who I openly acknowledge was acting "weird and kinda sketchy," I've failed on the duty to care front. If someone loses a family member as a result, I've got a very real problem on my hands. The burden of proof for civil negligence is lower than it is for criminal negligence.

 

[Gunplummer]

Thank you Tom Servo. I see what we called lawyers in the military spouting off on line all the time. It is always the same nonsense about what is legal under the criminal code. Some of these people are actually lawyers. I see advice like "Go ahead and do it, that law is not legal" printed all the time. That is like telling someone to not look both ways when crossing at a designated crosswalk because motorists have to legally stop for pedestrians in that state. Sometimes the repercussions of the act can be pretty bad. If you get involved in a civil lawsuit, you are going to wish you were charged with a criminal offense instead of being sued.

 

[thallub]

The buyer of any gun i sell is i'd. The name and address of the buyer goes on my Excel database of guns i own/have owned. i prefer to see an OK concealed carry permit when selling a handgun.

 

[kilimanjaro]

I think not having ID that verifies a claim of residency would fall under the 'reasonable cause to have known' language of the law, and you are on thin, cracking ice, indeed.

Doesn't pass the Prudent Man test.

 

[Skans]

I cant really say I understand that... why does does the paper trail matter if its all legit?

The reason some people fear the "paper trail" is because they believe the US government (or state or local governments) will ultimately require gun registration as a prelude to gun bans. There is precedent for this in England, Germany Australia and other countries. No paper trail means that there is a better likelihood that the purchaser, in the future, would be able to illegally keep his gun(s) in the event of such a gun ban.