A couple hypothetical transfer questions

[Arizona_Mike]

Say an elderly man living in one state physically acquired possession of a WWII trophy handgun from another state following the death of his stepfather (within the last few years). However, the gun was always understood by the family to have been either the inheritance of the man from his natural father who died when he was a child or at the very least gift from his widow to their son when he reached a responsible age (in either case before 1968 and when everyone lived in the same state). In other words it was "his gun" since at least the 1950s, it was just being kept in a display case of both European and Pacific war trophies of the father and stepfather at the residence of the stepfather all these decades.

Is there a potential GCA violation by this first man in recent years? I don't think so since it was "his gun", but I'm not sure.

Now say the first man is living in Colorado which has all kinds of strange laws. His son lives in Arizona. The son happens to have a C&R, there are no high capacity magazines (as defined by Colorado) at issue. What is the easiest legal way for the son to receive that gun either before or after then man's death?

Mike

 

[PapaG]

My guess....and it is only a guess...would be that it needs to go dealer to dealer if it is changing hands in different states.

 

[Arizona_Mike]

Are you referring to the first "transfer" or the second transfer? The gun is C&R eligible. In the second case I don't know what the laws of Colorado are.

Mike

 

[dogtown tom]

Arizona_Mike Say an elderly man living in one state physically acquired possession of a WWII trophy handgun from another state following the death of his stepfather (within the last few years).

Hopefully it was transferred legal through bequest or a licensed dealer.

However, the gun was always understood by the family to have been either the inheritance of the man from his natural father who died when he was a child or at the very least gift from his widow to their son when he reached a responsible age (in either case before 1968 and when everyone lived in the same state). In other words it was "his gun" since at least the 1950s, it was just being kept in a display case of both European and Pacific war trophies of the father and stepfather at the residence of the stepfather all these decades.

An "understanding" isn't the same as lawful possession. "Granddad would have wanted you to have his guns..." isn't the same as having that spelled out in a will.

Is there a potential GCA violation by this first man in recent years? I don't think so since it was "his gun", but I'm not sure.

Yes, it could be an illegal interstate transfer of a firearm. If it was "his gun" he would have had possession before his step fathers death.

Now say the first man is living in Colorado which has all kinds of strange laws. His son lives in Arizona. The son happens to have a C&R, there are no high capacity magazines (as defined by Colorado) at issue. What is the easiest legal way for the son to receive that gun either before or after then man's death?

Before the death..........just like any other interstate transfer of any firearm.
After the death....if the deceased had a will, the executor will disburse the decedents possessions. At that moment the firearm would be "yours" and you could take immediate possession.

 

[Frank Ettin]

Go to your local dealer, if you have one you trust, and ask him....

Sorry, but this is a very bad idea.

We've seen some dealers who really "know their stuff." But we have also seen some clueless dealers really don't understand the laws in any depth and who have given advice that could land someone in federal prison for a very long time.

 

[Sam1911]

Problem 1:

However, the gun was always understood by the family to have been either the inheritance of the man from his natural father who died when he was a child or at the very least gift from his widow to their son when he reached a responsible age (in either case before 1968 and when everyone lived in the same state). In other words it was "his gun" since at least the 1950s, it was just being kept in a display case of both European and Pacific war trophies of the father and stepfather at the residence of the stepfather all these decades.

These things are immaterial. Possession is what sets the criteria here. If he does not have the gun then it has to be transferred into his possession, from whomever currently possesses it, by some lawful means. As it crosses state borders that becomes an issue for an FFL to handle.

Problem 2:

Now say the first man is living in Colorado which has all kinds of strange laws. His son lives in Arizona. The son happens to have a C&R, there are no high capacity magazines (as defined by Colorado) at issue. What is the easiest legal way for the son to receive that gun either before or after then man's death?

As the gun in question is C&R eligible, and the son is an 03 FFL, the son could take possession of it directly, prior to death, or after death from whomever then possesses it -- or it could be transferred to him directly if the will specifically says it goes to him.

 

[Arizona_Mike]

Sam 1911, The gun never belonged to the stepfather. The man inherited the gun from his father before the GCA' 68 (either directly from the father circa 1951 or through the mother/widow when she felt he was old enough to be responsive, but still long before 1968). The man moved to another state in 1993 and left a lot of personal property in storage at his parents' house (including a boat).

As far as I can tell, the family wanted to keep all the war trophies (including uniforms, and other memorabilia) in the same display case.

Mike

PS. Say I stored my guns at a relatives house and wanted to retrieve them about 19 years later. In that time I had moved to another state. Would 4473s apply (not to shipping but picking them up in person)?

 

[Sam1911]

Sam 1911, The gun never belonged to the stepfather. The man inherited the gun from his father before the GCA' 68 (either directly from the father circa 1951 or through the mother/widow when she felt he was old enough to be responsive, but still long before 1968). The man moved to another state in 1993 and left a lot of personal property in storage at his parents' house (including a boat).

For the purposes of questions regarding transfers, the guns "belong" to whomever is in possession of them at the time.

This isn't a car or something with a legal title establishing ownership. And transfers don't deal with questions of ownership. They deal with possession.
While most folks don't think of it that way, whenever you loan or lend a gun to a pal, that's a transfer. When you take a shotgun over to your dad's house and leave it with him, that's a transfer. In almost all places in the US, that's perfectly lawful. (Though it ISN'T if you live in one state and he lives in another! ... Or if you live in a universal background check state which requires ALL transfers go through a dealer!) If you move out of your parents' house and leave your guns behind with your parents -- THAT's a transfer. And now that you (or your friend, in this case) is a resident of another state, it requires a FFL dealer to lawfully transfer possession of those rifles to you (or him, in this case).

Establishing residency in another state simply removes him that much farther from possession of them, and now puts him in a position where he cannot simply go back and re-claim possession of them without a dealer's help because this is an interstate transfer.

PS. Say I stored my guns at a relatives house and wanted to retrieve them about 19 years later. In that time I had moved to another state. Would 4473s apply (not to shipping but picking them up in person)?

Absolutely!

 

[Frank Ettin]

...PS. Say I stored my guns at a relatives house and wanted to retrieve them about 19 years later. In that time I had moved to another state. Would 4473s apply (not to shipping but picking them up in person)?

Let's take a more detailed look at how the Gun Control Act of 1968 (GCA68) applies to that and similar situations.

The federal laws relating to the transfer of a gun from a resident of one State to a resident of another (i. e., 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 address 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.

Giving someone your gun to store for you will be considered a transfer. It certainly is under federal law, and would also most likely be also considered a transfer under state laws. That's just what "transfer" means.

1. 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).
   
   
2. 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.
   
   
3. 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):
     
     
     • http://legal-dictionary.thefreedictionary.com/transfer:

       ...Transfer encompasses the sale and every other method, direct or indirect, of (1) disposing of property or an interest therein or possession thereof;...

       
       
     • http://www.thefreedictionary.com/transferred:

       2. Law To make over the possession or legal title of; convey.

     • http://law.yourdictionary.com/transfer:

       Any and every method of removing something from one person or place to another; specifically, the handing over of possession or control of assets or title. ...

     
     
   • 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...

   
   
4. With regard to loans, 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.
     
     
   • And while 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, if you were to take the gun back to your home State with you, you would be violating 18 USC 922(a)(3), which has no applicable "loan" exception. 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.
   
   
   
5. Now let's look at storing your gun 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.​

   
   
6. 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.

 

[Arizona_Mike]

Sam1911 and Frank, that is very interesting and counter intuitive.

Sam1911, I assume you meant handguns not rifles, since the man could just travel with the rifle from state A to B but would need an FFL for a handgun.

I'm sure there are many people who have left guns with friends or relatives.

Mike

 

[dogtown tom]

Arizona_Mike ...... I assume you meant handguns not rifles, since the man could just travel with the rifle from state A to B but would need an FFL for a handgun.

Uh, no.....there is no difference in transferring a handgun vs a rifle vs a shotgun vs an other firearm across state lines.......ALL require transfer via a licensed dealer. Firearms other than rifles and shotguns must be transferred by a licensed dealer in the buyer/transferees state of residence.

I'm sure there are many people who have left guns with friends or relatives.

Which doesn't change anything. "But, but, but EVERYONE does it!" is an excuse that didn't work for me in high school and doesn't carry much weight in court either.

 

[Frank Ettin]

Sam1911 and Frank, that is very interesting and counter intuitive....

In general, the law should be thought of as non-intuitive. One needs to know it, look it up, do the research. One can't expect to be able to just "figure it out." And while some things in the law can be figured out to some extent, one needs a sufficient and appropriate knowledge base to do it.

....I assume you meant handguns not rifles, since the man could just travel with the rifle from state A to B but would need an FFL for a handgun.....

As dogtown tom pointed out the interstate transfer laws are the same for long guns as for handguns, except that a handgun must be transferred by an FFL in the transferee's State of residence while a long gun could usually be transferred by any FFL. See 18 USC 922(b)(3):

(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver—

(3) any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in ... the State in which the licensee’s place of business is located, except that this paragraph (A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee’s place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States...​

However, as far as moving around, if you lawfully acquired possession of a handgun or long gun in State A (e. g., State A was your State of residence, or, in the case of a long gun, it was properly transferred to you by an FFL), you could generally move around through or to other States (e. g., for a visit or even to change your residence to that State) with the gun as long as you retain it in your possession, you properly transport it in compliance with any applicable laws, and it is legal for you to possess wherever you wind up. Except some States, like New York or New Jersey, present some unique and knotty problems.

And there are some very narrow exceptions, such as relinquishing custody of a gun to a common carrier for shipment to someone to whom you may legally ship a gun or to an airline to transport the gun while you are a passenger (see 18 USC 922(e)).

 

[Arizona_Mike]

Which doesn't change anything. "But, but, but EVERYONE does it!" is an excuse that didn't work for me in high school and doesn't carry much weight in court either.

Not an argument I was trying to make. Besides this hypothetical person is not me and I could not advise this person about things that (hypothetically) occurred in the past.

As far as the future, I'm pretty sure all this hypothetical person's own guns are all C&R eligible Also the hypothetical son makes a point to follow all gun laws . . .

Mike

PS As far as my initial question, my takeaway is that if these guns had been in a locked footlocker in his parent's basement then the man could have still possession all these years but in a locked display case in the living room when multiple people having access to the key, then the guns are no longer in his possession even if some of them are his. I appreciate the explanations.