...The 4473 is about ownership and taking possession from the FFL. If I lend you a gun, car, hammer or anything else, you have possession but I still have ownership....
That is not strictly accurate. The 4473 is about the transfer of possession of a gun to someone through an FFL.
Letting someone in another State have possession of "your" gun is highly problematic under federal law.
The federal laws relating to the transfer of a gun from a resident of one State to a resident of another (i. e., the Gun Control Act of 1968 or GCA68) are about physical possession, not ownership. GCA68 was Congress' responding to enormous public pressure after the assassinations by gunfire of three wildly popular public figures -- JFK, RFK and MLK. The law was intended to regulate and control the interstate transfer of firearms. It was structured so that to the extent reasonably possible any transfer of possession of a gun from a resident of one State to a resident of another would have to go through an FFL.
And in the context of the concerns intended to be addressed by Congress through GCA68, it's possession and not ownership that matters. Someone who has a gun in his possession can use it, whether or not he has legal title to it.
- In general, any transfer of a firearm from a resident of one State to a resident of another must go through an FFL who will follow all usual formalities (e. g., completion of the 4473). There are a few limited, narrow, specific exceptions: if you have an appropriate federal firearms license; inheritance by will or intestate succession; or a loan (subject to a number of limitations which will be discussed in more detail below).
- The applicable federal statutes are: 18 USC 922(a)(3); 18 USC 922(a)(5); and 18 USC 922 (b)(3). The full texts of those statutes may be found here.
- The federal laws I've cited are about possession, not necessarily ownership.
- Possession means:
1 a : the act of having or taking into control...
- Transfer is about possession, not ownership.
Some definitions of "transfer" (emphasis added):
- Let's look at the statutes:
- 18 USC 922(a)(3), which provides in pertinent part (emphasis added) as follows:
(a) It shall be unlawful—
...
(3) for any person, ... to transport into or receive in the State where he resides ...any firearm purchased or otherwise obtained by such person outside that State,...
- And 18 USC 922(a)(5), which provides in pertinent part (emphasis added) as follows:
(a) It shall be unlawful—
...
(5) for any person ... to transfer, sell, trade, give, transport, or deliver any firearm to any person ...who the transferor knows or has reasonable cause to believe does not reside in ... the State in which the transferor resides..;
- Note carefully the words of those statutes. Words, like "transport", "receive", "obtained", "transfer", "give", "transport", and "deliver" do not necessarily imply ownership and include possession. They will be read and applied by a court according to their ordinary meanings. See Perrin v. United States, 444 U.S. 37 (United States Supreme Court, 1979), at 42:
...A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning...
- So you move from State A and become a resident of State B. You left your guns behind with your buddy, a resident of State A. Those guns are now in his possession. Your taking possession of those guns would now be a transfer from him, a resident of State A, to you, a resident of State B. Since it's a transfer of a gun from a resident of one State to a resident of another, federal law requires that it go through an FFL.
- With regard to loans under GCA68, let's look at the applicable statutes again:
- 18 USC 922(a)(3), which provides in pertinent part (emphasis added) as follows:
(a) It shall be unlawful—
...
(3) for any person, ... to transport into or receive in the State where he resides ...any firearm purchased or otherwise obtained by such person outside that State,...
- And 18 USC 922(a)(5), which provides in pertinent part (emphasis added) as follows:
(a) It shall be unlawful—
...
(5) for any person ... to
transfer, sell, trade,
give,
transport,
or deliver any firearm to any person ...who the transferor knows or has reasonable cause to believe does not reside in ... the State in which the transferor resides; except that this paragraph shall not apply to
(A) the transfer, transportation, or delivery of a firearm made to carry out a bequest ..., and
(B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;
..
- So under federal law a resident of one State may loan a gun to a resident of another State, but only temporarily and only for a lawful sporting purpose.
- Temporary means:
: continuing for a limited amount of time : not permanent
: intended to be used for a limited amount of time
- Sporting means (in this context):
...of, relating to, used, or suitable for sport...
- Purpose means (in this context):
: the reason why something is done or used : the aim or intention of something
- So a court is likely to look at the "temporary loan for a lawful sporting purpose" exception to the prohibition on interstate transfers to apply when a gun is loaned so that the person it's been loaned to can engage in a specific sporting activity (i. e., a hunt, a competition, etc.) of limited duration. "Temporary" would refer to the duration of that activity. Such an interpretation would be consistent with the common meanings of the words used in the statutes and the underlying purpose (controlling interstate transfers of firearms) of GCA68.
- So you may go to another State where (under 18 USC 922(a)(5)), a friend may loan you a gun to, for example, go target shooting together, or an outfitter may rent you a gun for a guided hunt. But since there is no applicable "loan" exception in 18 USC 922(a)(3), a loan of a firearm may not cross state lines to the borrower's State of residence.
- Can't you store your gun with someone in another State?
- Leaving a gun with someone in another State clearly raises interstate transfer problems when that person has access to the gun.
- One possible way to avoid the problem would be to secure the gun or guns in a locked case or similar container to which only you have the key or combination.
- That might avoid the transfer problem inherent in having someone store your guns, ATF has advised here that one may ship a firearm to himself in care of another person in another State.
Specifically ATF has said (emphasis added):
6. May I lawfully ship a firearm to myself in a different State?
Any person may ship a firearm to himself or herself in the care of another person in the State where he or she intends to hunt or engage in any other lawful activity. The package should be addressed to the owner “in the care of” the out-of-State resident. Upon reaching its destination, persons other than the owner must not open the package or take possession of the firearm.
- Note that violations of federal law regarding interstate transfers are punishable by up to five years in federal prison and/or a fine; and since the crime is a felony one will lose his gun rights for the rest of his life.
I noted Federal law permits him to take possession and ownership of the rifle without going through a FFL if this is an inheritance. Not sure what the state laws sat where he is.....
The FFL requirement exception is specifically for a gun acquired by "bequest or intestate succession" (18 USC 922(a)(3) and 18 USC 922(a)(5)). And a
"bequest" is specifically a gift of personal property in a will.
Inheritance is controlled by state law. While the laws of a State might make provision for less formal processes, the transfer of the property of someone who has died to others in generally a very formal process.
Here's roughly how inheritance works:
- When there's a written will, it normally must be submitted to probate in court.
- In order to be a valid will which can be accepted for probate, the state laws set out requirements the will must satisfy. For example, most state laws require that to be valid a will must be signed by the testator in front of two witnesses who then sign as witnesses. Whatever the state requirements might be they must be adhered to or the will won't be recognized; and the decedent's property will pass by intestate succession, discussed below.
- The will ordinarily designates an executor (i. e., the personal representative of the decedent). That person is not the executor unless and until the will is admitted to probate in the proper court and the court issues Letters Testamentary recognizing that person as executor.
- The executor once qualified then proceeds to identify and account for the assets of the estate. He may need to collect debts owed the decedent and manage property or other assets of the estate. He might also need to sell assets of the estate to raise funds to pay debts of the decedent and/or taxes. He or she then pays debts and taxes of the decedent under court supervision.
- The executor then handles, again under court supervision, distribution of the assets of the estate in accordance with the terms of the written will.
- Intestate succession when someone dies without a will is not some informal dividing up of the decedent's property amongst the relatives. It's a highly formalized procedure.
- First, someone has to go to the proper court and apply to be named the administrator (i. e., the personal representative of the decedent to wind up the estate) of the decedent's estate.
- Once the court has issued an order designating someone as the administrator, that person proceeds to identify and account for the assets of the estate. He or she then uses those assets to pay any remaining debts of the decedent and any taxes due. This is all done under the supervision of the court.
- After the debts and taxes are paid, the administrator, under court supervision, will distribute any remaining assets to those relatives entitled under the applicable statutes to a share of the estate. Only those relatives specifically identified in the applicable statutes are entitled to a share of the decedent's property, and only in the proportion set out in the applicable statutes.
It's true that often, if there's not a lot of property involved, the relatives don't bother with the formalities and just divide everything up. That usually works out as long as no one complains, but it's not necessarily legal. And if there are conflicting claims on the property or if the decedent left significant debts or unpaid taxes, informality could result in serious complications down the road.
