ATF 4473 and Residency (Military PCS/TDY)

[pdsmith505]

I find myself in an interesting situation, and have received a lot of conflicting information on the subject.

I'm active duty Navy, and put on LT on the 1st (yup, still have a pulse!). I figured I'd buy myself a pistol as a little promotion present. So far, so good.

But here's the rub:
1) I'm a legal resident of New Mexcio
2) I'm on PCS orders from California to Virginia
3) My orders have multiple TDY stops along the way, such that there is a 10 month gap between leaving CA and reporting to my new command in VA.
4) I have been in Georgia since the beginning of December, and will be here until the end of May when I report to VA

Information set #1:
Over the Christmas leave period, I went to VA (where I own a home), and while there attempted to purchase a pistol with my PCS orders. The LGS told me that I was not a "resident" of VA until my report date on my orders, and that I could only buy a pistol in NM or my current duty location, GA.

Information set #2:
I've read multiple posts here on THR stating multiple things from the TDY stop (in GA) counting as my current residence to the PCS stop (in VA) being legal residence.

So my question:
What states could I currently buy a pistol in, based on residency?
-NM only
-CA and NM
-VA and NM
-GA and NM

Thanks for your help!

 

[medalguy]

I fail to understand where the dealer came up with his explanation. According to BATF regs, you are a resident of any state where you maintain a home. There is no minimum time requirement.

So if you own a home in Virginia, all that's needed is for you to supply the dealer in Virginia with satisfactory proof that you are a legal resident of that state. This could be in the form of a property deed, utility bill, vehicle registration, or other "official" documentation. Your orders should not enter into the situation.

Short answer: You are a resident of any state where you reside at the moment and intend to make a home. Per BATFE FAQ page:

A person’s “State of residence” is defined by regulation in 27 CFR 478.11 as “the State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State.” Ownership of a home or land within a given State is not sufficient, by itself, to establish a State of residence. However, ownership of a home or land within a particular State is not required to establish presence and intent to make a home in that State. Furthermore, temporary travel, such as short-term stays, vacations, or other transient acts in a State are not sufficient to establish a State of residence because the individual demonstrates no intention of making a home in that State.

 

[Sam1911]

I know NavyLCDR has a lot of good posts on this.

One I found...

Interesting to note is that active duty military members do not have to prove the exact residence address given on the form 4473 - Federal regulations allow a military member to present their Active Duty Military ID Card as proof of identity, and official permanent change of station orders as proof of state of residence to completely satisfy the requirements of the Brady Law, but neither of those documents will have an actual complete address of residence on them.

Do an "Advanced Search" here with his user name "NavyLCDR" and the word "orders."

 

[Frank Ettin]

...Short answer: You are a resident of any state where you reside at the moment and intend to make a home. Per BATFE FAQ page:

A person’s “State of residence” is defined by regulation in 27 CFR 478.11 as “the State in which an individual resides....

Let's not waste time with the ATF FAQs. Let's look at the actual regulation (27 CFR 478.11, emphasis added):

State of residence. The State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State. If an individual is on active duty as a member of the Armed Forces, the individual's State of residence is the State in which his or her permanent duty station is located. An alien who is legally in the United States shall be considered to be a resident of a State only if the alien is residing in the State and has resided in the State for a period of at least 90 days prior to the date of sale or delivery of a firearm. The following are examples that illustrate this definition:

Example 1.

A maintains a home in State X. A travels to State Y on a hunting, fishing, business, or other type of trip. A does not become a resident of State Y by reason of such trip.

Example 2.

A is a U.S. citizen and maintains a home in State X and a home in State Y. A resides in State X except for weekends or the summer months of the year and in State Y for the weekends or the summer months of the year. During the time that A actually resides in State X, A is a resident of State X, and during the time that A actually resides in State Y, A is a resident of State Y.

Example 3.

A, an alien, travels on vacation or on a business trip to State X. Regardless of the length of time A spends in State X, A does not have a State of residence in State X. This is because A does not have a home in State X at which he has resided for at least 90 days.

 

[pdsmith505]

From what I can gather from LCDR's posts, if I had brought in a utility bill or the deed for my home in VA (My name and my address on them), that would have established residency in VA, regardless of the status of my current orders, and I could have used my military ID for identification?

Mr. Ettin:
That is the part that has me confused. My PCS order have me in VA in May. My old duty station was in CA until last July. I was under the impression that VA was my permanent duty station, hence why I made the attempt to purchase the pistol. The LGS basically said "not yet" to VA residency.

Would that mean that, as of right now, the only place I can purchase a pistol is in NM? Or, even worse, nowhere?

 

[NavyLCDR]

There are two separate issues here. #1 - what state are you an actual resident of and #2 what documentation will satisfy the legal requirement to prove residency to the FFL.

Regarding #1: The Federal definition of state of residency contained in the United States Code and Code of Federal Regulations for the purposes of firearms is defined as being present in a state with an intention of making a home there. For active duty military members there is the additional ability to claim the state that you have PERMANENT orders to in addition to a state that you might be present in with the intention of making a home there.

So - your "home of record" - the state that is listed in your service record for the purposes of paying taxes, keeping a driver's license and voting in has ABSOLUTELY NOTHING to do with state of residency for the purposes of firearms transactions. I have had a Wyoming driver's license for 30 years, Wyoming is my state for tax purposes, and I have been registered to vote in Wyoming for 30 years - but it would be completely illegal for me to claim Wyoming as a state of residence for firearms transactions, because I have not been present in Wyoming with the intention of making a home there for 25 years. Only if you are present in that state with the intention of making a home there can you claim it is a state of residence for firearms transactions without active duty military orders to that state.

The state where you sleep each night on more than a visiting/vacation basis is one state of residence for you. That means while you are in GA attending school on the TDY portion of your orders, you ARE a resident of GA for the purposes of firearms transactions. HOWEVER - you likely will not have sufficient documentation (a government issued document) that will meet the legal requirement for proving residency while you are in GA. You cannot use your military orders because the GA duty station is not permanent. If you want to purchase a handgun from an FFL in GA, you will need a government issued document that establishes GA residency. A hunting/fishing license or a utility bill from a county or city government would be your most likely bets.

Once you actually execute your transfer to VA on your orders, THEN you can provide proof of VA residency to an FFL by showing only your active duty military ID card and your orders that you have executed, regardless of where your driver's license is from, and regardless of where you are actually living. For example, I was stationed in CT on orders, and lived in MA. At that time, I was a resident of both states - CT because of my orders, and MA because of my actual residence where I slept at night, but NOT my home of record state of Wyoming where my driver's license was from!

So, that is the situation you are in - you cannot claim your permanent duty station as a state of residence because you have not executed the final portion of your orders yet. You are a resident of wherever you are sleeping every night, which is likely GA - but unless you get a government issued document proving your residence in GA you won't be able to purchase a handgun from an FFL in GA.

18 USC 921 and 27 CFR 478.11 contain the definitions of state of residency. The August 2004 ATF Newsletter to FFLs also contains further explanation regarding using your orders and ID card to prove residency to an FFL.

http://www.law.cornell.edu/uscode/text/18/921

http://www.ecfr.gov/cgi-bin/text-id...ae8dc1a52e14&node=27:3.0.1.2.3.2.1.1&rgn=div8

http://www.atf.gov/files/publications/newsletters/ffl/ffl-newsletter-2004-08.pdf

 

[denton]

Sometimes the issue comes down to the difference between "domicile" and "residence". You can have only one domicile. You may have multiple residences, but apparently not if you are in the military.

ATF interpretations do not always follow the law. That can put a person in a very sticky situation. Whether they are right or wrong, they do enforce the law.

The best discussion of this that I know about is here:http://hardylaw.net/FOPA.html. Dave Hardy is a very prominent 2A attorney.

Who is a nonresident?

FOPA does not attempt to define residency. The Gun Control Act has a similar omission, except for military personnel on active duty.266 The legislative history indicates that (1) a person's residence is not necessarily where he votes or pays taxes -- that is, it is not necessarily his legal domicile;267 (2) a person is a resident of the locale where he is "permanently or for substantial periods of time physically located;"268 and (3) a person may have dual residency, or rotate between different places of residence on a regular basis.269

Active duty military personnel do seem to have a single residence defined in the GCA. That is not the case for most other people.

 

[NavyLCDR]

Sometimes the issue comes down to the difference between "domicile" and "residence". You can have only one domicile. You may have multiple residences, but apparently not if you are in the military.

Active duty military personnel do seem to have a single residence defined in the GCA. That is not the case for most other people.

Your interpretation is incorrect. The Federal allowance for military members to claim the state they have orders to is IN ADDITION TO (not in place of, as you seem to suggest) defining residency as the state a person is present in with the intention of making a home there.

In fact, if you read the FFL newsletter that I provided the link to, you would have read this:

If a member of the Armed Forces maintains a home in one State and the member’s permanent duty station is in a nearby State to which he or she commutes each day, then the member is considered a resident of both the State in which his or her duty station is located and the State in which his or her home is maintained, and he or she may purchase a firearm in either State.

 

[Bubbles]

Over the Christmas leave period, I went to VA (where I own a home), and while there attempted to purchase a pistol with my PCS orders. The LGS told me that I was not a "resident" of VA until my report date on my orders, and that I could only buy a pistol in NM or my current duty location, GA.

The dealer probably said that based on the documentation you showed him. It sounds like you didn't give him any documents with your Virginia address on it so there was no way he could verify that you were legitimately a VA resident.

1) What state is on your driving license?

2) While your driving license can establish identity, for residency you will need a government-issued document. A utility bill only works if it's run by the locality, usually water/sewer. Electric, CATV, phone, etc. won't work. Other options are vehicle registration, voter registration, concealed carry permit, property deed, etc.

Also in VA you can't buy a handgun until you can show 30 days of residency (state law). So going by the date on your PCS orders he was correct.

 

[HexHead]

According to the instructions on the Form 4473, if your drver's license is from a different state from where you OWN a home, you can use a tax bill as a 2nd form of ID to purchase a gun in that state.

I wouldn't muck it up with military orders.

 

[deadin]

, if your drver's license is from a different state from where you OWN a home, you can use a tax bill as a 2nd form of ID to purchase a gun in that state.

Am I to understand that if I own a piece of rental property in a different State (with no intention of living there) I can use my Tax documents to buy a handgun there?

 

[pdsmith505]

The dealer probably said that based on the documentation you showed him. It sounds like you didn't give him any documents with your Virginia address on it so there was no way he could verify that you were legitimately a VA resident.

1) What state is on your driving license?

2) While your driving license can establish identity, for residency you will need a government-issued document. A utility bill only works if it's run by the locality, usually water/sewer. Electric, CATV, phone, etc. won't work. Other options are vehicle registration, voter registration, concealed carry permit, property deed, etc.

Also in VA you can't buy a handgun until you can show 30 days of residency (state law). So going by the date on your PCS orders he was correct.

Drivers licence is New Mexico. I'm not going to change my legal residency or drivers licence over a gun purchase, too many advantages in keeping both in NM as an active duty service member.

But, the responses above led me to look into VA's residency requirements, which I found in VA Code 18.2-303.2:2, section B:

To establish personal identification and residence in Virginia for purposes of this section, a dealer must require any prospective purchaser to present one photo-identification form issued by a governmental agency of the Commonwealth or by the United States Department of Defense, and other documentation of residence.

So it seems like I could go in to the LGS in VA, present my DoD-issued photo ID along with the deed to my house (bought well over 30 days ago), and walk out with a gun based on VA and federal law. I might have to print out the relevant laws, but I suppose it should work.

Thanks for your help guys.

 

[NavyLCDR]

Am I to understand that if I own a piece of rental property in a different State (with no intention of living there) I can use my Tax documents to buy a handgun there?

Yes, you could. Which would be a Federal felony because you would be lying about your state of residence on the form 4473.

 

[NavyLCDR]

So it seems like I could go in to the LGS in VA, present my DoD-issued photo ID along with the deed to my house (bought well over 30 days ago), and walk out with a gun based on VA and federal law. I might have to print out the relevant laws, but I suppose it should work.

Thanks for your help guys.

Once you execute your orders, you can also just show your military orders as the "other documentation of residence". In addition, the state law may allow you to obtain a VA photo ID and keep your NM driver's license. Washington allows me to do this, which is exactly what I did to make purchasing handguns easier. I have a Wyoming Driver's License and a Washington State ID Card. What is really interesting is that my Wyoming Driver's License has my Washington address on it because I renewed it last time by mail.

 

[NavyLCDR]

According to the instructions on the Form 4473, if your drver's license is from a different state from where you OWN a home, you can use a tax bill as a 2nd form of ID to purchase a gun in that state.

I wouldn't muck it up with military orders.

There is no need to even show a driver's license if the person is using their active duty military ID card as proof of identification and orders as proof of residency. My opinion is just the opposite - I would not muck it up by showing a driver's license

 

[pdsmith505]

Once you execute your orders, you can also just show your military orders as the "other documentation of residence". In addition, the state law may allow you to obtain a VA photo ID and keep your NM driver's license. Washington allows me to do this, which is exactly what I did to make purchasing handguns easier. I have a Wyoming Driver's License and a Washington State ID Card. What is really interesting is that my Wyoming Driver's License has my Washington address on it because I renewed it last time by mail.

But the point is to get one for my recent promotion... easier to explain it to the wife that-a-way. Plus, I won't be executing the final stop in VA till the end of May, and I'm a little impatient.

I feel like this is a good example of the absurdity surrounding the federal limitation of pistol sales to your state of residence.

 

[deadin]

LCDR,
So you are differentiating between "owning a rental property" and "owning a home"?

How about I claim I intend to live there........ someday)?


(I'm just pulling your chain a little....)

 

[denton]

The Federal allowance for military members to claim the state they have orders to is IN ADDITION TO (not in place of, as you seem to suggest) defining residency

Excellent clarification. It appears that I misread the rules.

If I keep a cabin in the Sawtooth Mountains of Idaho and a home in Utah, and if I spend substantial amounts of time at both, then I can legally do a person to person firearm transfer in both states. I have two residences. But if the law calls for a domicile, I have to choose.

 

[bigfatdave]

I wouldn't muck it up with military orders.

I would not muck it up by showing a driver's license

I think that the "mucking up" is occuring at the point of "too much crap on the counter for ID, and the clerk gets confused"

Out in the real world, nobody wants to deal with military orders, nobody is interested in the difference between "home of record" and "residency".

Get your local stuff that shows residency wherever you actually are residing, and stop putting confusing stuff in front of the counter guy. A state photo ID should do it if you want to simplify things.

State of residence. The State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State.[strike] If an individual is on active duty as a member of the Armed Forces, the individual's State of residence is the State in which his or her permanent duty station is located. [/strike]
<snip>
Example 2.

A is a U.S. citizen and maintains a home in State X and a home in State Y. A resides in State X except for weekends or the summer months of the year and in State Y for the weekends or the summer months of the year. During the time that A actually resides in State X, A is a resident of State X, and during the time that A actually resides in State Y, A is a resident of State Y.

Let's just forget the whole bit about being active-duty military. Back when I was a dirty enlisted guy in Uncle Sam's Canoe Club, things were generally simpler if I just acted like a resident of <wherever I was> rather than getting into a debate with someone about; orders, home of record, duty station, temporary lodging, etc etc.

Example #2 seems to apply best.
pdsmith505 is actually residing somewhere right now. That's where he can legally buy a handgun from an FFL. Apparently the state he's residing in right now has a 30-day period to make sure you're really serious about being a resident. I doubt they have stringent requirements to prove it, so whatever can be presented to show 30 days should do the job.

The ATF example even calls weekend residency legitimate. pdsmith505 is residing in his current location much more than just on the weekends, he is living, working, and maintaining some household there. He's obviously a resident.

 

[pdsmith505]

And that's the conclusion I've come to, for the purposes of firearms:

Federally, I'm a resident of VA on an extended business trip out of the state.

State of VA, a DoD photo-ID and my city utility bills (documents issued by the Commonwealth of VA) establishes residency in the state.

 

[dogtown tom]

When in doubt...........read the instructions!

Nobody ever bothers to read the instructions to "Current Residence Address" or "State of Residence" in the Form 4473.:banghead:

 

[Bubbles]

Nobody ever bothers to read the instructions to "Current Residence Address" or "State of Residence" in the Form 4473.

The problem isn't the 4473, it's Virginia's additional residency requirement.

I also wouldn't count on any FFL accepting a property deed as proof of residency. I owned property in WV (raw land) long before I became a resident. The tax bill for the land wouldn't have worked either since there are different codes for resident vs non-resident rates (non-residents pay double).

 

[deadin]

(non-residents pay double).

Ain't that the truth!!!
(I discovered that when we owned a time-share in Florida)

 

[pdsmith505]

Nobody ever bothers to read the instructions to "Current Residence Address" or "State of Residence" in the Form 4473.

Dear Pot,

I whole-heartedly agree. Still, that is nowhere near as annoying as when someone makes a snide remark to an honest question without reading the discussion that has already followed.

Sincerely Yours,
Kettle

 

[NavyLCDR]

Out in the real world, nobody wants to deal with military orders, nobody is interested in the difference between "home of record" and "residency".

My real world experiences in a couple of different states at no less than 4 different FFLs has been exactly the opposite. I put a military ID card on the counter, with a copy of orders to the state the FFL is located in, with an address listed on the form 4473 that is in the same state and I have had ZERO issues.