Visitors (tourists) & gun ranges/rentals?

On the other hand, let's look at the applicable federal statutes:

  • 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 (y)(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.
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  • 18 USC 922(y):
    (y) 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.​
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  • 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....
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      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...
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    • 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 ....
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      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.,...
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    • 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,...
      Click to expand...

      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)....
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    • 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)...
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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.

Tom Servo said:
...If they're renting a firearm at the range, it's still in possession of the range owner, so it's not an issue. Same goes for me letting them use my personal gun if I'm present....
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I wouldn't be too sure. Transfer is about physical possession. That's one of the problems with I-594 in Washington State.

A "transfer" is a change of physical possession -- not ownership.


  • Possession means:
    1 a : the act of having or taking into control...
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    If you have something in your hands, you have it, control it, and therefore have possession of it.

  • Some definitions of "transfer" (emphasis added):


  • And consider the case of United States v. Huet, 665 F.3d 588 (3rd Cir., 2012). The Third Circuit (Pennsylvania) let stand an indictment for aiding and abetting the unlawful possession of a gun by a prohibited persons in a situation in which a gun owner had a cohabitant who was a prohibited person. In that case the gun the prohibited person was charged with possessing was not secured against the prohibited person's access, supporting both the prohibited person's conviction for unlawful possession of a gun and the indictment of his cohabitant. From the opinion (at pg. 593, emphasis added):
    ...on June 6, 2008, a valid search warrant (the “search warrant”) was executed on the couple‟s Clarion County home. Agents seized an SKS, Interordnance M59/66 rifle (“SKS rifle”) from an upstairs bedroom.

    Although Huet is legally permitted to possess a firearm, Hall was convicted in 1999 of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and is therefore prohibited from owning or possessing a firearm. After being informed of the raid, Huet allegedly told investigators that the guns in the house belonged to her and that it was not illegal for her to purchase weapons. Despite Huet‟s assertions that she alone possessed the SKS rifle, the Government sought and obtained an indictment charging Hall with illegal possession of the weapon, and Huet with aiding and abetting Hall‟s possession....
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Thanks Frank for the time and effort you put in on your last post. That is information every gun owner should be aware of. I am not a lawyer but my interpretation of the information you provided regarding prohibited persons would also extend to those that are just visiting you in addition to any that are living there.
 
That is some impressive research, thanks.
My OP was about people who other than being non-resident visitors legally could do so on a range though.
 
wogpotter said:
....My OP was about people who other than being non-resident visitors legally could do so on a range though.
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The prohibition applies to anyone who is an alien and not a resident immigrant. The definitions of immigrant and non-immigrant visa are set out in applicable federal law (8 USC 1101). The definitions are fairly complex, but in general the prohibition will apply to anyone who is a foreign national and visiting here as a tourist or here on a student visa or lawfully in the United States on business, etc. Effectively pretty much any foreign national except someone lawfully in the United States on a permanent resident visa (i. e., with a "green card") is a prohibited person who may have a gun in his possession only if he has a hunting license or comes within one of the exceptions set out in 18 USC 922(y).

So basically, your non-resident, visiting alien can't legally do anything at a range that would involve holding a gun or ammunition.
 
So basically, your non-resident, visiting alien can't legally do anything at a range that would involve holding a gun or ammunition.
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So all those ranges in Vegas that cater to foreign tourists are breaking the law? :confused: Somebody had better tell the ATF about this.
 
Vanya said:
So all those ranges in Vegas that cater to foreign tourists are breaking the law?...
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I have no explanation. If anyone sees any flaws in my analysis or knows of any authority to the contrary, I'd be very interested.

I would in fact be happy to find a good reason why my conclusions are wrong. I'm with a group teaching an monthly NRA Basic Handgun class. We supply the guns and ammunition. From time to time a foreign national on a student visa (or other non-immigrant visa) would like to take the class. We'd like to be able to accommodate him/her, but don't see how we could do so legally.

If we had solid grounds for concluding it would be lawful, we'd be happy. But none of us are interested in exposing ourselves to potential federal criminal liability.
 
It seems to my lay eye that attending a designated shooting range is a "sporting purpose" exemption under y 2 A above which says "admitted to the United States for lawful hunting OR sporting purposes".

Otherwise the Canadians shooting alongside my friend in Phoenix last week should not have been allowed to compete.
Not to mention the Japanese taking shooting vacations to the USA.
Etc., etc.
 
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Jim Watson said:
It seems to my lay eye that attending a designated shooting range is a "sporting purpose" exemption under y 2 A above which says "admitted to the United States for lawful hunting OR sporting purposes".

Otherwise the Canadians shooting alongside my friend in Phoenix last week should not have been allowed to compete.
Not to mention the Japanese taking shooting vacations to the USA....
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The statute says, "admitted to the United States for lawful hunting or sporting purpose." That means that the reason for the visit is hunting or a sporting purpose, not just general tourism or to go to school or to conduct business. So someone coming to the U. S. to participate in a shooting competition is in the clear.

As far as the Japanese shooting vacations, I used to see quite a few of visiting Japanese groups at the range. I haven't seen one for a long time.
 
So all those ranges in Vegas that cater to foreign tourists are breaking the law? Somebody had better tell the ATF about this.
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I was mistaken on this, and apparently have been for quite some time, as well. I think we all have been.

As Frank says, I can find no way around the prohibition. It appears we've all been breaking the law the whole time. I'm also going to lose some business (and some goodwill--teaching tourists is fun!) over this.

However, it beats the alternative. The reason we haven't seen clampdowns on it is that it's probably beneath the notice of law enforcement. I wouldn't want to be the test case, though.
 
So, a visiting foreigner has to state in his papers the purpose of his visit?
And if he does not put "shooting sports", he can't legally go shooting, right?
 
Jim Watson said:
...a visiting foreigner has to state in his papers the purpose of his visit?
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The statutes say what they say. My group will not enroll a foreign national for our class unless we have decided that we have no reason to believe he's prohibited under them.

Others may do as they wish, but we feel that we have too much personally at stake.
 
So, a visiting foreigner has to state in his papers the purpose of his visit?
And if he does not put "shooting sports", he can't legally go shooting, right?
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Last time I went to the US all I was asked was business or pleasure.
 
Last time I went to the US all I was asked was business or pleasure.
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Same here, every time. Even the one where I was carrying 100' of braided 3/4" pressure hose. I said "Pleasure" & they said "Fine, how long are you staying"?

I always wondered if they even listen to the answers after that?:D:eek:
 
Who's to say that the person coming to the US to shoot at Battlefield Vegas or take a Frank Ettin class isn't doing it to fulfill a bucket list item of shooting firearms at a shooting range and then using them for sporting purposes? It seems to me that taking an involved shooting class or shooting firearms at a target on a controlled range would both constitute sporting purposes. Is there any case law on this?
 
dakota.potts said:
Who's to say that the person coming to the US to shoot at Battlefield Vegas or take a Frank Ettin class...
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Perhaps a federal grand jury -- that's the problem.

dakota.potts said:
...It seems to me...
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What it seems to you doesn't mean squat. It's what it seems to a federal prosecutor, a federal grand jury, and a federal judge that will count. I don't want to find out. Among other things, finding out will cost a lot of money. You're awfully free with my money.

dakota.potts said:
...Is there any case law on this?...
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There's case law, some of which I've cited, on what constitutes possession and the interstate commerce issue.
 
Further Complications

However, in doing some more research in response to Dakota Potts' post, I found some information that makes things more complicated.

The statutes I cited prohibit possession of guns or ammunition by aliens admitted present in the United States on a non-immigrant visa. Apparently there is a program under which a foreign national from one of a number of participating countries my enter the United States for a limited period of time without a visa.

Apparently ATF has decided that lawfully entering the United States as a non-immigrant when permitted without a visa is not the same as entering with a non-immigrant visa, and therefore such a non-resident alien in not subject to the 18 USC 922(g)(5) prohibition. It looks like this ATF interpretation was made around 2012. I just stumbled on it since it doesn't seem to have been incorporated in the regulations of the ATF (or if it has, I missed it).

It looks like the Visa Waiver program applies to visitor from most European countries, several Asian countries, and one South American country. It doesn't include any Middle Eastern or African countries. The requirements for a visa are waived only for visits for business or pleasure not to exceed 90 days.

As far as I can see all this does for us in make it that much more difficult to know whether you can let a foreigner shoot your gun without your risking federal prison. I think, to make things manageable, I'd still insist on seeing a hunting license.
 
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