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Getting gun from one state to another.

Discussion in 'Legal' started by Thursday45, Apr 16, 2013.

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  1. Nunki

    Nunki Member

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    Sam1911
    This may not apply to your state, but here in Montana there are 35 states where, if you live in that state you may come to a walmart in ANY of those ststes and buy a gun and take it back to your state. This, from Walmart management, Billings, Montana.406-254-2842- ask for gun department. There are 17 states that they cannot sell to. Of course, you knew this, right?
     
  2. CoRoMo

    CoRoMo Member

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    Not a handgun. Long guns only.
     
  3. Sam1911

    Sam1911 Moderator

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    Yes, that's been federal law since 1986. And as CoRoMo said, only for long guns. Pistols and "others" must be transferred to you in your home state.

    In fact, the "17 states" rule that WalMart uses is only a corporate policy, not federal law. Those would be 17 states where that other state's laws either prohibit transfers to their residents out of state, or where the procedures that resident must follow (FOID cards, purchase permits, background checks, waiting periods, etc.) are so complicated that it isn't practical for a WalMart gun clerk in Billings to try and follow them.
     
  4. Thursday45

    Thursday45 Member

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    Sam, thanks. That is basically what the ATF told me. My issue is that the gun was bought after I had established residency in MT so, while there is no title of ownership or any registration, there is still a 4473 that was filled out that has a date after me establishing residency in MT. I doubt they'd pursue it but I don't want to take a chance becoming the Fed's poster child for their newest "tough stance on gun crimes"

    The rifles given to me while I was a resident of WA and are now in my possession are good. The handgun that I left and the remainder of the rifles will have to shipped FFL to FFL is my understanding.
     
  5. Sam1911

    Sam1911 Moderator

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    Well, FFL-to-FFL is up to whomever is doing the shipping and the dealer who's receiving.

    But it is the "safe" way, and with handguns involved, usually cheaper and much less hassle.

    Don't feel bad that the BATFE gave you bum info. :D They do that to everyone!

    It's common knowledge that just about the worst people to ask what the law says are the folks enforcing it! Ask a lawyer, read the website (ATF's website still contains some misinformation, unfortunately) or read the law for yourself.
     
  6. Thursday45

    Thursday45 Member

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    Okay sam, so your saying that they should be able to be shipped personally from my mother in WA to a FFL out here in MT so long as I call the MT FFL and make sure that they accept firearms from non-licensed individuals? Also, of course, making sure ups or USPS knows they're shipping a firearm.

    Good responses from everyone. Hopefully others got something out of this thread as well. Thanks again guys.
     
  7. Sam1911

    Sam1911 Moderator

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    We have a sticky in the legal section on how to ship guns which you may find helpful.

    But yes, if the dealer will accept shipments from non-licensees you aren't breaking the law by doing so. However, shipping a handgun has to be done via ups or FedEx (or other common carrier), not USPS and it will go overnight which is expensive, AND it will have to go from a main hub which can be a pain. Often having a dealer send it is just easier.
     
  8. jmr40

    jmr40 Member

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    The gun is his. It has always been his gun. The fact that he lives in one state and the gun is in another is irrelevent, he still owns the gun. It was gifted to him 7 years ago. It doesn't matter who filled out the 4473. As long as he directly takes possesion of the gun and does not have it shipped to his currrent state there is no reason to get a FFL invlolved.

    I'd pick it up next time I'm home and bring it back with me. No laws, federal or state will be broken.
     
  9. Sam1911

    Sam1911 Moderator

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    Is it? Show me where the law says so. It says a person who resides in on state shall not go to another state, acquire a gun, and bring it home.

    I accept that few "gunny" folks have ever considered this or know this, but I don't see anywhere in the law that says if someone gave you a gun, but you left it behind (with other persons) when you moved somewhere else it's still in your possession.
     
  10. mdauben

    mdauben Member

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    I might ask to see where it says that separation constitutes transfer of ownership? I'm not sure such an interperetation holds water, but I'm no lawyer and would not care to be a test case. ;)

    However, that's not really the issue. Acording to the OP, he was "gifted" with the gun after he moved out of state. In that case, it is my understanding that it never became legally his in the first place, because it needed to go through an FFL for an out-of-state transfer. Even if his father was still alive to confirm his intention to gift the gun to his son, AFAIK it would need to go through an FFL to be legal.

    By my reading of the facts, in the absense of a will the OPs mother is currently the owner of all his late father's guns (including the gift pistol). Transferring ownership of any of them at this point needs to follow the federal requirements for interstate firearms transfer.
     
  11. Frank Ettin

    Frank Ettin Moderator

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    "Transfer" is not about ownership. It's about possession.

    Some definitions of "transfer" (emphasis added):


    Let's look at the statutes:

    1. 18 USC 922(a)(3), which provides in pertinent part (emphasis added) as follows:

    2. And 18 USC 922(a)(5), which provides in pertinent part (emphasis added) as follows:

    That's okay. I am.

    Correct. Pretty good for a non-lawyer. ;)
     
  12. Thursday45

    Thursday45 Member

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    Yup I just had my mother check the receipt that my father kept in it's box. I graduated college summer of 07 and moved to Montana in September. The receipt says that it was purchased in November of 2007, 2 months after I had moved to MT. It was placed in lay away around August while I was still a resident of WA though.

    So under the law he couldn't have gifted it to me and therefore I'll have to go through a FFL.
     
    Last edited: Apr 16, 2013
  13. mdauben

    mdauben Member

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    But, if that's the case, why isn't loaning a gun to a friend while hunting considered a transfer? Its in his "possession" instead of yours now, isn't it? :confused:

    If the OP himself had bought the pistol in question, he could have transported it with him when he first moved to MT with no issues. But what if he was making two trips in order to transport all his possessions to his new home. He would need to do an interstate transfer legally transport the gun to MT if he left it for the second trip?

    Not trying to be argumentative, the idea that the "possession" of the gun (for purposes of interstate transfer) changes just because he leaves the state and then comes back for it doens't make sense to me and I'm trying to get it clear in my head why. :uhoh:
     
  14. Thursday45

    Thursday45 Member

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    What about statute of limitations? If I would have brought it back 6 years ago doesn't the clock on the statute of limitations start ticking at the time the crime is committed? Or would I have always been in possession of an illegal firearm and therefore the clock would have been perpetual?
     
  15. Sam1911

    Sam1911 Moderator

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    It rather IS, or at least is treated as a special case of transfer.

    You'll note that the federal law expressly mentions loaning a firearm.

    However, you'll also see that the loan of a firearm does not negate the prohibition against bringing into your home state a gun that you obtained elsewhere. Thus, a loan may only take place when someone comes to visit you to hunt or do some other sporting activity, and they have to give it back when they go home.
     
    Last edited: Apr 16, 2013
  16. Frank Ettin

    Frank Ettin Moderator

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    Note: Unlawful interstate transfer of a gun is punishable under federal law by up to five years in federal prison and/or a fine (plus a bonus of a lifetime loss of gun rights).

    Okay, first I'll lay out the whole federal law story on interstate transfers of firearms (not including the rules for those with Curio and Relic licenses and the subject of dual residency):

    • Under federal law, any transfer (with a few, narrow exceptions, e. g., by bequest under a will) from a resident of one State to a resident of another must be through an FFL. The transfer must comply with all the requirements of the State in which the transfer is being done as well as all federal formalities (e. g., completion of a 4473, etc.).

    • In the case of handguns, it must be an FFL in the transferee's State of residence. You may obtain a handgun in a State other than your State of residence, BUT it must be shipped by the transferor to an FFL in your State of residence to transfer the handgun to you.

    • In the case of long guns, it may be any FFL as long as (1) the long gun is legal in the transferee's State of residence; and (2) the transfer complies with the laws of the State in which it takes place; and (3) the transfer complies with the law of the transferee's State of residence.C] In connection with the transfer of a long gun, some FFLs will not want to handle the transfer to a resident of another State, because they may be uncertain about the laws of that State. And if the transferee resides in some States (e. g., California), the laws of the State may be such that an out-of-state FFL will not be able to conduct a transfer that complies.

    • There are no exceptions under the applicable federal laws for gifts, whether between relatives or otherwise, nor is there any exception for transactions between relatives.

    • The relevant federal laws may be found at: 18 USC 922(a)(3); 18 USC 922(a)(5); and 18 USC 922(b)(3).

    • Here's what the statutes say:

    So --

    See 18 USC 922(a)(5) (as quoted in full above) which provides in pertinent part as follows (emphasis added):

    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 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 "loan" exception, thus becoming eligible for five years in federal prison and a lifetime loss of gun rights. Since there is no loan" exception in 18 USC 922(a)(3), a load of a firearm may not cross state lines to the borrower's State of residence.

    Yes, but that didn't happen.

    Not it one trip immediately (or nearly) followed the other. He would arguably continue to be a Washington resident until settled in Montana. But here he's been a resident of Montana for seven years.

    Possession means:

    For the last seven years the gun has been in the control (custody, possession) of first the father and upon the fathers death (since it wasn't bequeathed to anyone else by a will), the mother.

    Giving the gun to the OP is thus a transfer. Since he is a resident of one State and the mother, who has control of the gun, is a resident of another, that transfer is an interstate transfer and thus subject to the federal law outlined above. So it must be transferred to the OP through an FFL.

    No. The crime in this case would be the unlawful interstate transfer of a gun, which would occur when you now took possession of the gun from your mother (if not done through an FFL as required under federal law).

    On one hand, you could spend some money and do it right. On the other hand, you and your mother can risk five years in a federal prison (and lifetime loss of gun rights).
     
  17. MedWheeler

    MedWheeler Member

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    Thursday45 asks:

    ..and Frank Ettin responds with:

    Frank, I read his question to be asking "what if" he had taken the gun back six years ago, and whether or not the SOL would have started "ticking" then. I believe it would have, as that would have been when he took possession of, and transported across state lines, a handgun (as you mention, assuming he had not gone through the proper FFL-related procedures.)
     
  18. Thursday45

    Thursday45 Member

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    Yup, I think it would have ran out. Reading USC 3282, unless in cases of capital crimes, some sex crimes and some tax crimes, the federal statute of limitations for federal crimes is 5 years. However, I have to assume that there would be a federal statute against possessing said firearm. It's neither here nor there as its hypothetical but thought it was interesting.
     
  19. Frank Ettin

    Frank Ettin Moderator

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    But he didn't, and everyone in the world with Internet access knows it.
     
  20. MasterSergeantA

    MasterSergeantA Member

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    Then the most legal way to go about it would be to have your mother take it to a dealer who will ship it to a dealer you have identified in Montana. That dealer will then legally transfer it to you via a 4473. You will incur some cost from each dealer (most likely) and the cost of shipping. But that will be much less than it would cost to buy a new pistol and if you find the 'right' dealers, they might not charge you anything (they aren't required to, but neither one is making any money from a "sale".) The dealers can communicate via phone and get FFL copies as needed. They do it all the time.
     
  21. RetiredUSNChief

    RetiredUSNChief Member

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    OK, similar question related to the ongoing debate here. I THINK I know the answer, based on what Frank Ettin and Sam1911 have posted.


    I'm a resident of South Carolina. I have a brother who is a resident of Virginia. I bought him a pistol as a gift and presented it to him, whereupon we went to a local gun shop in his town and filled out a Form 4473 as required so it would all be nice and legal.

    Afterwards, he wants me to store the pistol for him. Since my place of employment is in Virginia, I keep it where I rent in Virginia. I don't take it to South Carolina when I go home to my wife and kids.

    I had never considered the ramifications of storing the pistol at my home in SC until reading through this string; however, I HAD believed that the way I've been doing this is legal. Namely, the pistol stays in Virginia (where I'm employed) while I'm storing it for my brother...I'm not transporting it across state lines.

    Now I'm not sure I've been doing this legally. I maintain EMPLOYMENT in Virginia, but I'm not a "corporation or other business entity" and I don't "maintain a place of business" in Virginia.


    Right now I don't have that "gut feeling" that I've been doing this legally. And, in my experience, gut feelings are not to be ignored...

    :scrutiny:
     
  22. Thursday45

    Thursday45 Member

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    I don't know about your situation and hopefully someone will come along to help you but I have a question. Did you buy the gun in SC and then personally take it to Vriginia or did you buy the gun in Virginia? Or did you buy it in SC and then had it shipped to Virginia? The reason I ask is I wonder if it would be legal to have the guns brought out here to my FFL and then transferred therefore not having to go through mail.
     
  23. Keb

    Keb Member

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    Are you inheriting the gun from your Dad's estate?

    If so, I am pretty sure that is all spelled out by BATF, and I doubt there is any BGC required if you just physically transport it.
    I would study this for you, but supper is on.
     
    Last edited: Apr 16, 2013
  24. Deltaboy1984

    Deltaboy1984 Member

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    Yep that is what you need to do. KEEP THE Feds out of your business.
     
  25. Frank Ettin

    Frank Ettin Moderator

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    The easiest way to keep things absolutely kosher would be for him to lock the gun in a small case, or even a gun rug or with a trigger lock, for which he, and not you have the key of combination. That way you don't actually have access to the gun.

    No, he really isn't. The OP said in post 10 that the guns weren't mentioned in this late father's will. If something isn't specifically bequeathed in a will it passes either to the residuary legatee, if one is specified in the will, or under the Washington State intestate (without a will) succession law. In the later case, the guns most likely become the property of the OP's mother.

    Wrong. In that case both the OP and his mother would be violating federal and thus become entitled to up to five years in federal prison and/or a fine plus a lifetime loss of gun rights.

    Again a really lousy idea. Committing federal crimes is never a good idea nor is it a good way to "keep the feds out of it."
     
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