Handgun Transfer of Ownership

[Battery]

My brother is a Delaware State resident. He has his Florida non-resident CCW. I live in New York state and have my CCW. He is visiting and wants to buy one of my handguns from me legally. Can I do this legally? How?

 

[Alland]

All interstate transfers must done through an FFL. Being a handgun, it must be transfered to him by an FFL in Delaware. It could be shipped to the Delaware FFL or you could take it to an FFL in Delaware if you go to visit him.

 

[bikemutt]

The transfer should be handled by a Delaware FFL holder. You can either use UPS or FedEx to ship to his FFL in Delaware, or pay a NY FFL to ship it USPS.

 

[Jim K]

Nope. Aside from NY law, federal law bans transfer of a handgun to a resident of another state no matter where the transfer takes place. He should return to DE, and contact a dealer there who will send a copy of his FFL to you or to an NY dealer. You might be able to send the DE dealer the gun directly (UPS or FEDEX, not USPS) but IIRC, there is a NY law that guns being shipped out of state have to be shipped by a dealer. IF that is true, then you contact an NY dealer and get his address so the DE dealer can send a copy of his license. Once the gun is received by the DE dealer, your brother can pick it up from him.

Both dealers will probably charge a service charge, part of the cost of doing things legally. Your concealed carry licenses and your relationship are both irrelevant under federal law.

You could simply give your brother the gun, BUT I assume it is registered in NY and if, God forbid, something should happen that it turns up in the wrong place in DE, you could have a lot of problems explaining how it got there.

Jim

 

[Battery]

Interestingly, he does not have a DE permit. He has DE as his home state and owns a house there, but he travels full-time in a RV with his wife and daughter. While spending the winter in FL, he got his non-resident CCW there. Getting a permit in DE is nearly impossible, and he only goes to that state a few days out of the year.

He needs something for protection traveling full-time. I have tried to encourage the purchase of a shotgun, but honestly a handgun may be more practical for them. (or, maybe some other CQB weapon). Right now, we are trying to sort out a legal way for him to have a handgun based off of his FL non-resident CCW. Clearly, me selling him one of my handguns isn't going to work. Any other ideas?

 

[Jim K]

If he spends at least 6 months of his time in FL, he should qualify as an FL resident, (Where does he file federal income tax from?) and should be able to buy a handgun in FL or even in DE. Again IIRC, it is hard to get a carry permit in DE, but not difficult to purchase a handgun.

As to carrying it or having it in reach in his RV, that could present another problem in some states. It should be no problem in any of the states where the FL permit is valid, but in some states, even having the gun in the RV would be illegal, and having it in reach or on the person would be illegal in others. There have been legal rulings about whether a live-in RV or trailer is a residence or a vehicle. Generally, it is considered a home or residence when parked and hooked up, but some states call it a vehicle if it is on the road so the same rules apply as if it were an ordinary car.

All in all, it is a complex enough situation that the advice of an attorney might be needed. One way to avoid a lot of problems is to ditch the handgun idea and buy a pump or autoloading shotgun. Even that is not a trouble free approach, but it is a lot less liable to cause legal problems than a handgun.

Jim

 

[bikemutt]

I'm with Jim K, shotgun. I know a couple of codgers who motorhome a lot, it is their defense gun of choice. A carry permit is state issued and won't make much difference when trying to stay within federal firearms laws with respect to transfers. Unless NY has some law overriding federal, he should be able to buy a shotgun there as long as the transfer is lawful in NY and DE.

 

[dogtown tom]

Jim K If he spends at least 6 months of his time in FL, he should qualify as an FL resident,

ATF considers the place where you make your home as your "state of residence".....there is no requirement to spend a period of time before you can claim a location as your residence.

http://www.atf.gov/regulations-rulings/rulings/atf-rulings/atf-ruling-2010-6.pdf

U.S. Department of Justice
Bureau of Alcohol, Tobacco, Firearms and Explosives
Office of the Director
Washington, DC 20226
18 U.S.C. 922(a)(3): PROHIBITED TRANSPORTATION OR RECEIPT
18 U.S.C. 922(a)(5): PROHIBITED TRANSFER BY NON-LICENSEE
18 U.S.C. 922(a)(9): PROHIBITED RECEIPT BY NON-RESIDENT
18 U.S.C. 922(b)(3): PROHIBITED TRANSFER BY LICENSEE
18 U.S.C. 922(t): REQUIREMENTS TO TRANSFER FIREARMS
27 CFR 478.11: DEFINITIONS (STATE OF RESIDENCE)
27 CFR 478.11: DEFINITIONS (IDENTIFICATION DOCUMENT)
27 CFR 478.124: FIREARMS TRANSACTION RECORD
For the purpose of acquiring firearms under the Gun Control Act of 1968, a United States citizen who temporarily resides in a foreign country, but who also demonstrates the intention of making a home in a particular State, is a resident of the State during the time period he or she actually resides in that State. The intention of making a home in a State must be demonstrated to a Federal firearms licensee by presenting valid identification documents. Such documents include, but are not limited to, driver’s licenses, voter registration, tax records, or vehicle registration.
ATF Rul. 2010-6
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has received inquiries seeking clarification as to whether, under Federal law, United States citizens who maintain residences in both a foreign country and a particular State may purchase firearms while in the State.
The Gun Control Act of 1968 (GCA), as amended, Title 18, United States Code (U.S.C.), section 922(a)(3) prohibits any person not licensed under the GCA (nonlicensees) from receiving any firearm purchased or otherwise obtained by such person outside the State in which the person resides. Furthermore, section 922(a)(9) provides, in part, that it is unlawful for any unlicensed person who does not reside in any State to receive any firearm unless such receipt is for lawful sporting purposes. Pursuant to section 922(b)(3), the GCA also prohibits licensees from selling or delivering firearms 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. Section 922(a)(5) extends the prohibition, with some limited exceptions, to any unlicensed person transferring a firearm to anyone who the transferor knows or has reasonable cause to believe does not reside in the transferor’s State of residence.
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
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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.
To ensure compliance with this residency requirement, section 922(t) of the GCA requires licensees to examine a valid “identification document” (as defined in 18 U.S.C. 1028(d) and 27 CFR 478.11) of a firearm transferee. This document must contain the residence address of the transferee so that the licensee may verify the identity of the transferee and discern whether the transferee has the intention of making a home in a particular State. Licensees transferring a firearm to a person not licensed under the GCA are required, pursuant to 27 CFR 478.124, to record the firearm transaction on an ATF Form 4473, which requires, among other things, the transferee’s residence address, including the transferee’s State of residence as it appears on the valid identification document.
The term “identification document” is defined by 18 U.S.C. 1028(d)(3) as “a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State . . . which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals.” The regulations, 27 CFR 478.11, define the term “identification document” as “[a] document containing the name, residence address, date of birth, and photograph of the holder and which was made or issued by or under the authority of the United States Government, a State, political subdivision of a State . . . which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals.” Identification documents include, but are not limited to, a driver’s license, voter registration, tax records, or vehicle registration. As explained in ATF Ruling 2001-5 (ATFQB 2001-4, 37), a combination of valid government documents may be used to satisfy the GCA’s State residency requirement.ATF has previously addressed the eligibility of individuals to acquire firearms who maintain residences in more than one State. Federal regulations at 27 CFR 478.11 (definition of State of Residence), Example 2, clarify that a U.S. citizen with homes in two States may, during the period of time the person actually resides in a particular State, purchase a firearm in that State. See also ATF Publication 5300.4 (2005), Question and Answer B12, page 179. Similarly, in ATF Ruling 80-21 (ATFB 1980-4, 25), ATF held that, during the time college students actually reside in a college dormitory or at an off-campus location, they are considered residents of the State where the on-campus or off-campus housing is located.
The same reasoning applies to citizens of the United States who reside temporarily outside of the country for extended periods of time, but who also maintain residency in a particular State. Where a citizen temporarily resides outside of the country, but also has the intention of making a home in a particular State, the citizen is a resident of the State during the time he or she actually resides in that State. In acquiring a firearm, the individual must
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demonstrate to the transferor-licensee that he or she is a resident of the State by presenting valid identification documents.
Held, for the purpose of acquiring firearms under the Gun Control Act of 1968, a United States citizen who temporarily resides in a foreign country, but who also demonstrates the intention of making a home in a particular State, is a resident of the State during the time period he or she actually resides in that State.
Held further, the intention of making a home in a State must be demonstrated to a Federal firearms licensee by presenting valid identification documents. Such documents include, but are not limited to, driver’s licenses, voter registration, tax records, or vehicle registration.
Date approved: November 10, 2010
Kenneth E. Melson
Deputy Director

 

[Frank Ettin]

The fundamental issue is establishing and determining the OP's brother's State of residence. Federal interstate transfer law is pretty much "set in concrete", with no real wiggle room and revolves around the States of residence of the transferor and transferee. It also applies to all transfers of possession, not just a change of ownership.

Here is pretty much the whole story on interstate transfers (not including the rules for those with Curio and Relic licenses or the subject of dual residency):

[1] 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.).

[2] 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.

[3] 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.

[4] 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.

[5] 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.

[6] 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 (emphasis added):

18 U.S.C. 922. Unlawful acts

(a) It shall be unlawful—
...

(3) for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State, except that this paragraph

(A) shall not preclude any person who lawfully acquires a firearm by bequest or intestate succession in a State other than his State of residence from transporting the firearm into or receiving it in that State, if it is lawful for such person to purchase or possess such firearm in that State,

(B) shall not apply to the transportation or receipt of a firearm obtained in conformity with subsection (b)(3) of this section, and (C) shall not apply to the transportation of any firearm acquired in any State prior to the effective date of this chapter;​

...

(5) for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business 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 of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and

(B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;
​

....

(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 (or if the person is a corporation or other business entity, does not maintain a place of business 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 (and any licensed manufacturer, importer or dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States), and

(B) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes​

;...

 

[AFRetired]

except that this paragraph shall not apply to

(A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and

(B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes


So just loan him the gun temporarily, until he doesn't have a need for it anymore.

 

[Frank Ettin]

...So just loan him the gun temporarily, until he doesn't have a need for it anymore.

Very, very bad idea. Now if the OP's brother takes the gun home with him to another State, the brother commits a federal felony and becomes qualified for up to five years in a federal prison.

Go back and look at the statutes I quoted in post 9. You must look at all relevant law.

18 USC 922(a)(5) prohibits a resident of one State from transferring, selling, trading, giving, transporting, or delivering any firearm to any person who the transferor knows or has reasonable cause to believe lives in another State. But the statute makes an exception for a temporary loan or rental of a gun for a lawful sporting purpose. So if your buddy is visiting you from another State, you may loan him a gun so he can go target shooting or hunting with. Or an outfitter may rent a gun to a client from another State to participate in a guided hunt.

But 18 USC 922(a)(3) prohibits any person from transporting into or receiving in the State where he lives a gun bought or otherwise obtained in another State. There's no exception here for a loan.

So for example, you can loan your buddy visiting here from another State a gun, but he can't take it home with him (nor could you ship a gun to him in his home State "on loan"). Your letting him take the loaned gun home to another State, or you making an interstate loan, would violate 18 USC 922(a)(3).

 

[Sam1911]

Right now, we are trying to sort out a legal way for him to have a handgun based off of his FL non-resident CCW. Clearly, me selling him one of my handguns isn't going to work. Any other ideas?

As others said, he can buy a handgun VERY easily in DE. Any one he wants. He could take al little road trip (or plane ride) and be back in FL with a new handgun in one weekend if he wanted.

 

[Alland]

The fact that he has a FL non-resident CCW has absolutely nothing to do with how he may legally obtain any firearm.

 

[Frank Ettin]

The fact that he has a FL non-resident CCW has absolutely nothing to do with how he may legally obtain any firearm.

That is absolutely correct.

What counts is his State of residence. While he's in Delaware, at his home in Delaware and intending to remain there (although perhaps contemplating another temporary, albeit possibly extended, absence on one of his trips), Delaware is his State of residence.

So he just buys his handgun in Delaware.

 

[Alland]

As stated earlier, a shotgun might be a better weapon for RV travel. There are a few states where one could not legally visit while in possesion of a handgun. NY state being one of them.

 

[Bubbles]

NJ is also not known for being friendly to out-of-staters with handguns, so he would have to avoid it as well.

 

[wnycollector]

IIRC, there is a NY law that guns being shipped out of state have to be shipped by a dealer.

You are absolutely correct. In order for the OP to have the pistol he is selling taken off his NYS pistol permit, he must have a receipt of transfer from a New York FFL (who ALSO has a NYS Dealer permit!). I have sold several pistols via gunbroker over the years from my personal collection to out of state residents and NYS Dealer/FFL to out of state FFL is the only legal way to go.