Discussion in 'Legal' started by Thomasss, Dec 3, 2021.
I had the understanding guns can be given as "gifts" or "inherited" by law.
One may indeed give someone else a gun as a gift (whether inter vivos (during life) or post mortem by will or trust), but any transfer must still comply with applicable law. So --
Under federal law a gift of a gun to a resident of another State must go through an FFL (except a post mortem gift by bequest).
Under some circumstances state law might require that transfer go through an FFL.
The transferor must not be prohibited under state or federal law from possessing a gun.
I believe that applies, under federal law, to handguns or receivers (not long guns) if it's delivered in person. If shipping, yes. It would have to be shipped to an FFL if it crosses state lines.
Incorrect. If the transfer of any firearm goes from the resident of one state to the resident of another, said transfer must pass through an FFL.
People keep getting this wrong even though the law has been in effect for over 50 years and I've posted the following many times here:
Under federal law, any transfer of a gun (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. And a handgun must be transferred through an FFL in the transferee's State of residence. 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.). 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.
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. 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:
Violation of these federal laws is punishable by up to five years in federal prison and/or a fine. It also results in a lifetime loss of gun rights.
I suspect that you're probably right. But the problem is that the legal analysis necessary is much more complex than that -- because we are talking about guns, and guns are heavily regulated.
There's considerable federal law about guns and a wild jumble of state laws about guns. And many of these laws deal with the transfer and possession of firearms -- and in general those laws are mostly about possession and not ownership.
The key meaning here is "having or taking into control." So, for example, federal law looks at "possession" like this (U.S. v. Booth, 111 F.3d 1 (C.A.1 (Mass.), 1997, at 1, emphasis added)):
Ownership, in law, is about the universe of rights and powers one has with regard to some kind of property -- including the right and power to exclude others from using the property and to sell or otherwise dispose of property. One may possess property but not own it.
One may also own property, but not possess it. For example, in U.S. v. Casterline, 103 F.3d 76 (C.A.9 (Or.), 1996), the 9th Circuit set aside a conviction for being a felon in possession of a gun, because the conviction was based solely on evidence of ownership, but under circumstances in which the defendant could not possibly have had access to or possession of the guns. Casterline was in prison at the time, and the guns were in the sheriff's department evidence locker. As the Ninth Circuit wrote in Casterline, at 79 (emphasis added):
So, perhaps, a child could theoretically have an ownership interest in a gun, but laws governing possession might be a barrier to his physical possession and use of the gun -- at least without parental supervision.
Yes, we all know that once upon a time kids would take their .22s to school and go hunting on their way home. But unfortunately, that was then, and this is now.
That purely depends on the State laws of firearms possession where the kid lives. And just saying "that one's mine" does not constitute ownership. Kids say that about stuff all the time. No kid under 18 can legally purchase a firearm, so consequently they cannot own one in their name, it is always Dad's or Mom's or Grandpa's until they reach legal age even if they claim ownership. A very touchy area as we have seen lately...
Not true. See section 3 below
Thats federal law. Your state may be more restrictive.
Further, a licensed dealer cannot sell or transfer a firearm to anyone not yet age 21 (age 18 for rifles and shotguns).
Many states do not register firearms, so no one in them "owns one in their name." None of my firearms are "owned in my name." My state's laws address purchase, possession, and use by the under-21 set, but not ownership.
So an item of your personal property which hasn’t been registered with the government isn’t actually owned by you? That, of course, is preposterous.
Ownership is a panoply of rights and powers one has with respect to real or personal property, such as a right to exclusive possession and use, the right and power to exclude others, and the right and power to dispose of the property. Things like registration, government issue certificates of title, bills of sale, or deeds (especially when filed with the government), can be very useful if one needs to establish that he owns something; but actual ownership (in one’s name) is independent of government registration.
The study of Law is complex and requires much practice, and is best left to professionals.
I was addressing post 10, and was unclear. My point was more following the concept that "owning in one's name" and "owning on paper" (some official documentation") are synonymous, with which I do not agree. I was in no way denying that I own my firearms; I did not imagine that anyone here would think that I was.
I am curious about this line from post 10:
Can a minor child own anything, really? It doesn't seem so.
Okay, you disagree with the proposition that, “…. owning in one's name’ and ‘owning on paper’ (some official documentation") are synonymous….” Why? Support your answer with reference to applicable case law or statutes.
And, in fact, your comment is not accurate:
Ownership is one thing. It’s an array of rights and powers one has with respect to property (real or personal). There may be different types of ownership, e. g., shared ownership (e. g., joint tenancy or as tenants in common), but ownership as a legal concept is essentially independent of the documentation.
Documentation, such as government registration, deeds, bills of lading, bills of sale, documents relating to the acquisition of the item of property, etc., are useful, and might be necessary, to establish the fact or type of ownership.
So your comment doesn’t really mean anything, nor is it an accurate statement of what the law is.
But that’s related to a minor child’s limited legal capacity to enter into contracts and otherwise manage his own affairs.
The age 18 for a rifle no longer is true in Florida. A person must be 21 to obtain one from a licensed dealer, due thanks to the Marjorie Stoneman Act from the Parkland shooting.
Again, Thats federal law. Your state may be more restrictive.
(to this: >>The age 18 for a rifle no longer is true in Florida. A person must be 21 to obtain one from a licensed dealer, due thanks to the Marjorie Stoneman Act from the Parkland shooting.<<)
Actually, he was citing Florida law. The Marjory Stoneman Douglas Act was passed in Florida in response to the shooting at the school after which the Act is named, and did indeed raise the minimum purchase age for any firearm to 21 (the previous minimum age for the purchase from a FFL of a long gun was 18.)
Why is it so hard to understand the difference between federal law and a more restrictive state law?
Your post (18) reads as if you're differentiating between Florida and Federal law.
Was your response referring to something other than the line you quoted and placed directly above it (this one?):
See post #11. I posted current Federal law.
And YES, YES, YES and YES I'm differentiating between Federal law and state law. Federal law applies EVERYWHERE. A state/county/city/town can be more restrictive than federal law.
It's annoying to post a cite from federal law, make the point that its FEDERAL LAW AND YOUR STATE LAW MAY BE MORE RESTRICTIVE, then have someone write "but in ______ its different!". Yeah, we know.
California, Washington, New Jersey, etc all have firearms laws that are more restrictive than Federal law. But for the majority of America, state laws are not more restrictive.
If I wanted to simply give one of these guns to my adult kid, who lives with me in the same house, is that allowed? I haven't drawn up a will yet, but I assume I can just give all my guns to my daughter as simply as a toaster, right?
Let us look at Ohio's Law. First item that appears to be mete:
That appears to read that you can't give to a prohibited person.
2923.21 Covers furnishing to minors (emphasis added):
So, if the son is 21 or older, then, yes.
I did not make a detailed check to see if Ohio has a mandatory safe storage law.
Separate names with a comma.