Quick legality check - just want to make sure


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Azrael256
January 3, 2006, 07:01 PM
Ok, so I want to sell a pistol to a buddy in Oklahoma. I'm a Texan. So, I take this gun with me to visit him, we head on down to his local FFL, and he does a transfer for us, buddy gives me the cash, and we're off to the races. Have I got it right, or do I need to have it sent to his FFL from mine?

Next question: Same buddy wants to purchase a pistol he saw in a gunshop while visiting here. Can I buy it and then do the same as #1? He is most definitely not prohibited from purchasing or owning a pistol, as he has picked up a couple up there in the last few months. Or, does he have to call the shop down here and have it sent to his local FFL? I've never really gotten into the remote possibility of a "straw purchase", as I've always purchased guns for myself, so I'm not sure.

Both guns are new-ish, and neither of us has a C&R, so that's not an option.

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wdlsguy
January 3, 2006, 07:48 PM
Ok, so I want to sell a pistol to a buddy in Oklahoma. I'm a Texan. So, I take this gun with me to visit him, we head on down to his local FFL, and he does a transfer for us, buddy gives me the cash, and we're off to the races.

Sounds fine to me. "A person may sell a firearm to an unlicensed resident of his or her state, if the buyer is not prohibited by law from receiving or possessing a firearm, or to a licensee in any state."

http://www.atf.gov/firearms/faq/faq2.htm#b1

Next question: Same buddy wants to purchase a pistol he saw in a gunshop while visiting here. Can I buy it and then do the same as #1? He is most definitely not prohibited from purchasing or owning a pistol, as he has picked up a couple up there in the last few months. Or, does he have to call the shop down here and have it sent to his local FFL?

I would go with the latter option. "A person not licensed under the GCA and not prohibited from acquiring firearms may purchase a firearm from an out-of-state source and obtain the firearm if an arrangement is made with a licensed dealer in the purchaser's state of residence for the purchaser to obtain the firearm from the dealer."

http://www.atf.gov/firearms/faq/faq2.htm#b3

Azrael256
January 3, 2006, 08:03 PM
Right. I'll tell him to have the seller down here send the pistol to his FFL up there.

Thanks.

Hkmp5sd
January 3, 2006, 08:19 PM
Same buddy wants to purchase a pistol he saw in a gunshop while visiting here. Can I buy it and then do the same as #1?

FYI, this is a "straw purchase." Your friend cannot walk into your local gunshop and buy a handgun legally by reason of not being a resident of your state. Your buying the gun for him (even though you do not intend to actually transfer it to him while in your state) is done to bypass his inability to purchase the firearm.

hksw
January 3, 2006, 08:58 PM
Same buddy wants to purchase a pistol he saw in a gunshop while visiting here. Can I buy it and then do the same as #1?

FYI, this is a "straw purchase." Your friend cannot walk into your local gunshop and buy a handgun legally by reason of not being a resident of your state. Your buying the gun for him (even though you do not intend to actually transfer it to him while in your state) is done to bypass his inability to purchase the firearm.

IMO, I do not think this is a straw purchase. Person #1 purchases a gun via gun shop with background check, sells gun to friend in a different state via dealer in his state who does a background check on Person #2.

IMO, no different than buying off of a private seller of another state who ships the gun to your local dealer to do the transfer for you.

BTR
January 4, 2006, 09:54 AM
Buying a gun from an FFL with the intention of immediately selling it to someone else defintely sounds like a straw purchase for me. Who is the actual purchaser of the firearm? Your friend, not you.

Chipperman
January 4, 2006, 10:34 AM
He's still transferring it thru an FFL in OK before it goes to the friend. I don't see how this is a problem.

thatguy
January 4, 2006, 10:40 AM
Selling a gun to an FFL while visiting another state is fine.

As long as the final buyer goes through an FFL there is no legal problem.

If you buy a gun with the intention of giving it as a gift there is no problem.

The problem is when one person buys the gun on behalf of another person because the second person cannot legally buy it or wants to avoid the paperwork.

BTR
January 4, 2006, 12:36 PM
When Azrael256 buys the gun, the form will ask if he is the actual buyer of the firearm. If he is buying it in order to transfer it to his friend, I think he may not be considered the actual buyer of the gun.

Carl N. Brown
January 4, 2006, 02:46 PM
This may only be valid in the Fifth District and may
have changed but:
CHARGE:

"E. Count 6--False Statement to a Licensee in the Acquisition
of a Firearm, Aiding and Abetting
Count 6 of the indictment charged Polk with aiding and abet-
ting the purchase of a firearm through a false and fictitious
statement. In particular, the Government alleged that Polk
purchased weapons from Liberty Sports through Davidson, a
"straw purchaser." Such purchases, argues the Government,
violate 18 U.S.C. 167; 922(a)(6) because they involve the buyer
making a false statement about the true purchaser of the weapon(s)."

5TH CIRCUIT COURT RULING:

"We find that the Government's construction of 167; 922(a)(6)
sweeps too broadly so that the evidence is insufficient to
support a conviction on Count 6.(7)
Although 167; 922(a)(6) on its face does not prohibit "straw
purchases," we have nonetheless held that such transactions
violate 167; 922(a)(6). See, e.g., United States v. Ortiz-Loya,
777 F.2d 973, 979 (5th Cir. 1985). It is clear to us--indeed,
the plain language of the statute compels the conclusion--that
167; 922(a)(6) criminalizes false statements that are intended
to deceive federal firearms dealers with respect to facts material
to the "lawfulness of the sale" of firearms. (Emphasis added.)
Thus, if the true purchaser can lawfully purchase a
firearm directly, 167; 922(a)(6) liability (under a "straw
purchase" theory) does not attach.
See, e.g., Barrett v. United States, 423 U.S. 212, 220, 96 S.Ct.
498, 503, 46 L.Ed.2d 450 (1976) (holding that purpose of
167; 922(a)( 6) was "'to make it possible to keep firearms
out of the hands of those not legally entitled to possess them
because of age, criminal background, or incompetency'"
(quoting S.Rep. No. 1501, 90th Cong., 2d Sess. 22 (1968) U.S. Code
Cong. & Admin. News 1968 p. 4410)); United States v. Moore,
109 F.3d 1456, 1460-61 (9th Cir. 1997) (en banc), petition for
cert. filed, ---- U.S.L.W. ---- (U.S. June 2, 1997) (No. 96-9227);
United States v. White, 451 F.2d 696, 699 (5th Cir. 1971)
("One goal sought by Congress [through 167; 922(a)(6)] was control
over the ease with which criminals may acquire firearms."), cert.
denied, 405 U.S. 998, 92 S.Ct. 1268, 31 L.Ed.2d 468 (1972).(8) "

jtward01
January 4, 2006, 04:05 PM
Under this interpretation then it would be legal for my wife to buy a gun for me (not as a gift) since the only reason I can't do it myself is due to medical problems not currently allowing me to travel to the gun shop, not any legal prohibition?

hksw
January 4, 2006, 09:04 PM
Under this interpretation then it would be legal for my wife to buy a gun for me (not as a gift) since the only reason I can't do it myself is due to medical problems not currently allowing me to travel to the gun shop, not any legal prohibition?

IMO, this would be a straw purchase as the gun is being purchased not as a gift and the end user is circumventing the process of filling out the form and background check, regardless if the end user is eligible or not. The person filling out the forms could be charged with dealing firearms without a license (she pays for the gun then you pay her for the gun) or be charged with a straw purchase (you pay her for the gun then she pays with your cash for the gun).

[Gift = she pays for the gun and gives it to you at no cost. Also, straw purchase can also = she pay for the gun, gives it or sells it to you, you are ineligible to possess firearms.]

To go back to the original post, the end user (in OK) will fill out the 4473 and get a background check before he gets it. Very small possibility Azrael256 could get caught for dealing but it is only one gun and if that were the case, a whole lot of folks private selling would be caught dealing without a license.

All of this is, of course, IMO.

Hkmp5sd
January 4, 2006, 09:27 PM
It's really simple. If you are buying the gun for yourself or as a legitimate gift, it is legal. If you are buying the gun with the intent to transfer it to someone else, it is a straw purchase. The only reason you are filling out the paperwork is because the person actually wanting the gun is unable to do so. It doesn't matter why the other guy cannot fill out the paperwork, if you do it for him, you are violating the law.

Dionysusigma
January 4, 2006, 09:59 PM
So... is this Todd, or Quentin? :p Not getting rid of that GI yet, are ya? :uhoh:

Azrael256
January 5, 2006, 06:20 AM
hksw hit on the heart of the question. If I buy it in Texas legally, and then transfer it to the fellow who wants it through the appropriate legal means... Well, no matter. I'll just tell him to have the gun sent to his local shop. Between the transfer, driving all over the country, and him having to put up with me for three days, we're about even with just having it shipped.

Dionysusigma, oddly enough, neither. A certain party's dad, I'll just say he lives in Duncan, has expressed an interest in a certain small revolver in my inventory. He has made me an offer that will allow me to get mom the gun she wants (she has learned to wrangle my shotgun :what: , but a pistol is always nice), and his son has managed to somehow scrounge up a pair of CT grips that happen to fit the pistol mom wants. Supposedly he came by these things legitimately. I have told both of them that they're getting the short end of the stick on this one, but evidently a weekend of car work is fair enough to them. So, I'm leaving in the morning :)

That certain party's dad is also quite interested in yet another gun, and although I told him just to call you to order it, he is quite insistent that I find him a shop that has one in stock. He is a rather odd man, you know. The one I happened to find happens to be in Texas, so we'll have to drive there so he can take a look at it, but, of course, he can't buy the bloody thing.

And no, I'm not getting rid of my GI. I'm bringing him for visitation, and we'll all have a good time together. Sit down, relax, take deep breaths, and have a glass of scotch. It's all going to be just fine.

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