Is it okay to take my Chinese friend to the shooting range? (Fl)

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guitarguy314

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Hey everyone,

I'd like to take my friend shooting. However, he is here on a student (F1) visa from China. He has been here in the states for almost a year now attending graduate school. I have heard that, because of his visa type, he would not be allowed to shoot. Is there any truth to this?

Would he be allowed to go to the range and shoot with me?

Thanks in advance for any information you can provide.

L
 
guitarguy314 said:
...I'd like to take my friend shooting. However, he is here on a student (F1) visa from China. He has been here in the states for almost a year now attending graduate school. I have heard that, because of his visa type, he would not be allowed to shoot. Is there any truth to this?....
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The short answer is that most likely he can't shoot. Indeed, under federal law he most likely can't even legally hold a gun or ammunition. There are a few very narrow exceptions which will be outlined below.

Cump said:
....depends on how the ATF defines "possession":
https://www.atf.gov/content/may-non...d-united-states-under-nonimmigrant-alien-visa
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Basically, if you have a gun in your hands, you have possession of the gun.

Possession means:
1 a : the act of having or taking into control...
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If you have something in your hands, you have control of it, and therefore possession of it.

Courts will look at the common meanings of words (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...
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Cump said:
It looks like there is debate on the legality: http://www.thehighroad.org/archive/index.php/t-377950.html
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That thread is almost seven years old. Let's look at current federal law, see 18 USC 922(g)(5):
(g) It shall be unlawful for any person—

(1) …

(2) …

(3) …

(4) …

(5) who, being an alien—

(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));​

(6) …

(7) …

(8) …

(9) …
​
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
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and 18 USC 922(y):
(y) Provisions Relating to Aliens Admitted Under Nonimmigrant Visas.—

(1) Definitions.— In this subsection—

(A) the term “alien” has the same meaning as in section 101(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(3)); and

(B) the term “nonimmigrant visa” has the same meaning as in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)).​

(2) Exceptions.— Subsections (d)(5)(B), (g)(5)(B), and (s)(3)(B)(v)(II) do not apply to any alien who has been lawfully admitted to the United States under a nonimmigrant visa, if that alien is—

(A) admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States;

(B) an official representative of a foreign government who is—

(i) accredited to the United States Government or the Government’s mission to an international organization having its headquarters in the United States; or

(ii) en route to or from another country to which that alien is accredited;​

(C) an official of a foreign government or a distinguished foreign visitor who has been so designated by the Department of State; or

(D) a foreign law enforcement officer of a friendly foreign government entering the United States on official law enforcement business.​
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There is a wrinkle that makes things more complicated.

The statutes I cited prohibit possession of guns or ammunition by aliens admitted present in the United States on a non-immigrant visa. Apparently there is a program under which a foreign national from one of a number of participating countries my enter the United States for a limited period of time without a visa.

Apparently ATF has decided that lawfully entering the United States as a non-immigrant when permitted without a visa is not the same as entering with a non-immigrant visa, and therefore such a non-resident alien in not subject to the 18 USC 922(g)(5) prohibition. It looks like this ATF interpretation was made around 2012. I just stumbled on it since it doesn't seem to have been incorporated in the regulations of the ATF (or if it has, I missed it).

It looks like the Visa Waiver program applies to visitor from most European countries, several Asian countries, and one South American country. It doesn't include any Middle Eastern or African countries. The requirements for a visa are waived only for visits for business or pleasure not to exceed 90 days.

However, for the OP the Visa Waiver Program is moot. His friend isn't in this country under that program since he in fact has a student visa and has been here for more than 90 days. In any case, China is not a participating country.
 
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So then he would also be prohibited from places where they rent out machine guns to shoot on the range to people from other countries on a visit to the U.S. (Because of his particular visa).
.
 
Frank Ettin said:
Basically, if you have a gun in your hands, you have possession of the gun.
Possession means:
Quote:
1 a : the act of having or taking into control...
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If merely having it in one's hands is "possession" then why am I (as a potential purchaser) allowed to hold an NFA weapon in my grubby mitts without it being legally transferred to my possession?

For that matter why can I go a half hour down the road and shoot a range's full auto firearms and not be illegally in 'possession' of a weapon for which I have no NFA stamp?

Why will my gunsmith cut a barrel down for be below NFA minimum length to construct a Short Barreled Rifle without paying for a transfer stamp? His requirement is that I remain in the immediate area and the AFT seems to be fine with that as well.
 
Loan / Rental of LG – FFL may temporarily loan or rent a LG for temporary use for lawful sporting purposes to a resident or non-resident § 922 (b)(3)(B), who is 18 years or older § 922 (b)(1), who is not a prohibited person § 922 (d), who is not a prohibited alien §§ 922 (a)(9) & (y)(2), and must conduct a criminal background check if the LG is taken off the premises, § 922 (t).
 
We have tour groups in my state where visitors from all over the world go to gun ranges and shoot guns. The gun ranges cater almost exclusively to Asian tourists that do not have access to gun ownership in their own countries. They hand out fliers on the streets of Waikiki and advertise in magazines and on TV.

I'm not saying it's legal (I'm not an immigration lawyer and I didn't stay at a Holiday Inn last night), just describing what goes on here.
 
4thPointOfContact said:
Frank Ettin said:
Basically, if you have a gun in your hands, you have possession of the gun.
Possession means:
Quote:
1 a : the act of having or taking into control...
Click to expand...

If merely having it in one's hands is "possession" then why am I (as a potential purchaser) allowed to hold an NFA weapon in my grubby mitts without it being legally transferred to my possession? ....
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The word "possession" means what it means.

See, for example, the case, United States v. Huet, 665 F.3d 588 (3rd Cir., 2012), in which the gun a prohibited person was charged with illegally possessing was not secured against the prohibited person's access, supporting both the prohibited person's conviction for unlawful possession of a gun and the indictment of his cohabitant. From the opinion (at pg. 593, emphasis added):
...on June 6, 2008, a valid search warrant (the “search warrant”) was executed on the couple‟s Clarion County home. Agents seized an SKS, Interordnance M59/66 rifle (“SKS rifle”) from an upstairs bedroom.

Although Huet is legally permitted to possess a firearm, Hall was convicted in 1999 of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and is therefore prohibited from owning or possessing a firearm. After being informed of the raid, Huet allegedly told investigators that the guns in the house belonged to her and that it was not illegal for her to purchase weapons. Despite Huet‟s assertions that she alone possessed the SKS rifle, the Government sought and obtained an indictment charging Hall with illegal possession of the weapon, and Huet with aiding and abetting Hall‟s possession....
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See also U.S. v. Barron-Rivera, 922 F.2d 549 (C.A.9 (Wash.), 1991) affirmed Barron-Rivera's conviction for being an alien in possession of a firearm. Barron-Rivera's claimed reversible error in that the government failed to prove the necessary intent.

The court of appeal noted, at 551:
...Barron-Rivera argued that the gun was in his wife's residence at the time he re-entered the United States and moved back into that residence. Accepting that contention, the district court, nonetheless, found that Barron-Rivera's possession of the firearm was voluntary because he permitted the firearm to remain in the house after he acquired knowledge of its presence....
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In affirming the conviction, the court of appeal found, at 551 -- 552:
...In other words, by continuing to reside in the apartment in which the gun was located, he voluntarily and knowingly possessed the gun...
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So in "prohibited person in possession" cases the prohibited person doesn't even need to have actual, physical possession of the gun in order to be guilty of illegal possession. He need only have easy access to the gun.
 
If it is illegal or not is questionable but assuming it was illegal it doesnt seem to be enforced. A local range routinely rents guns on premises to foreigners on vacation.
 
Hey everyone. Thanks for the information. It sounds like the general consensus is "might be illegal" with a little bit of "but I do it all the time" thrown in for good measure.

I called the range I intend to visit (near Tallahassee) and they said that my friend would be welcome to shoot. Despite that, I really don't like the idea of possibly opening myself up for a felony charge and confiscation of my firearms. Is there anywhere I could go to check? The atf faq I read seems to lean toward it being illegal.
 
Update: I emailed Jon Gutmacher, who is a florida lawyer who deals almost exclusively with firearm laws. He even puts out a book laying them out in detail, with updates on his website when new laws are passed.

His answer was quite clear. My friend cannoT shoot.

thanks everyone.
 
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guitarguy314 said:
Update: I emailed Jon Gutmacher, who is a florida lawyer who deals almost exclusively with firearm laws. He even puts out a book laying them out in detail, with updates on his website when new laws are passed.

His answer was quite clear. My friend cannon shoot.

thanks everyone.
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Unfortunately, your answer is not clear. Is that can not?
 
Say, Frank, I noticed the following in your earlier post:

(2) Exceptions.— Subsections (d)(5)(B), (g)(5)(B), and (s)(3)(B)(v)(II) do not apply to any alien who has been lawfully admitted to the United States under a nonimmigrant visa, if that alien is—

(A) admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States;
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That "or" makes it sound like a person here under a non-immigrant visa could possess a firearm if he had a hunting license. Hunting licenses are issued by the state, not the feds. Do states prohibit aliens from hunting?

I know many years ago some friends who were here from Britain were able to get hunting licenses. They borrowed shotguns and went hunting, but I doubt if anyone bothered to look into legalities.
 
Based on all the federal laws cited being underpinned by the interstate commerce clause, it would certainly be legal for him to shoot a gun which never crossed any state lines to get into his hands.
 
It seems that most of what was posted here refers to commerce or transportation.

(g) It shall be unlawful for any person—
(1) …

(2) …

(3) …

(4) …

(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) …

(7) …

(8) …

(9) …
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Click to expand...

Seems like a real stretch to taking a guy to the range and letting him shoot.
 
Ed N said:
...it sound like a person here under a non-immigrant visa could possess a firearm if he had a hunting license. Hunting licenses are issued by the state, not the feds. Do states prohibit aliens from hunting?...
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Yes, a non-immigrant alien with a hunting license is not a prohibited person under federal law. I'm not aware of any States that would prohibit an alien here on a non-immigrant visa from obtaining a hunting license as long as he meets the applicable qualifications.

sequins said:
Based on all the federal laws cited being underpinned by the interstate commerce clause, it would certainly be legal for him to shoot a gun which never crossed any state lines to get into his hands.
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Under the statute, 18 USC 922(g), a person in one of the enumerated prohibited classes may not:
...ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
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And here's what the courts have said about that:

  1. In U.S. v. Chesney, 86 F.3d 564 (C.A.6 (Tenn.), 1996), the Sixth Circuit affirmed, against a Commerce Clause challenge Chesney's conviction for being a felon in possession of a firearm.

    In rejecting Chesney's assertion that the 18 USC 922(g) is unconstitutional, the court of appeal noted, at 568 -- 569:
    ...another panel of this court has held § 922(g)(1) to be constitutional. In United States v. Turner, 77 F.3d 887 (6th Cir.1996), a unanimous panel held that " § 922(g)(1) represents a valid exercise of legislative power under the Commerce Clause." Id. at 889. As this court wrote in Turner, "Every court of appeals that has been faced with this question since Lopez has held that the jurisdictional element of § 922(g) provides the requisite nexus with interstate commerce ....
    Click to expand...

    In rejecting Chesney's assertion that the statute can not be applied in his case, the court of appeal noted, at 570 -- 571:
    ...Chesney, unlike the defendant in Turner, also challenges § 922(g)(1) as applied to him by arguing that his conviction is unconstitutional because the government failed to prove any "substantial nexus between the crime charged and interstate commerce." Chesney stipulated that the gun had moved in interstate commerce, and such a stipulation is sufficient evidence to support Chesney's conviction pursuant to § 922(g)(1). See United States v. Lee, 72 F.3d 55, 58 (7th Cir.1995) (stipulation that gun was in or affecting commerce sufficient evidence to support a conviction under § 922(g)(1)). ...

    The Supreme Court has held that proof that a firearm moved in interstate commerce at any time is sufficient to meet the government's burden of proving the "in commerce or affecting commerce" element of § 1202(a), the predecessor to § 922(g)(1). Scarborough v. United States, 431 U.S. 563, 566-67, 97 S.Ct. 1963, 1964-65, 52 L.Ed.2d 582 (1977). Although Scarborough was decided as a matter of statutory construction, the Court noted that Congress knew how to assert " 'its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce,' " and that Congress intended to exercise the full extent of its Commerce Clause power when enacting § 1202(a). Id. at 571-72, 97 S.Ct. at 1967-68 ...

    All of the courts of appeals to consider the issue since Lopez have concluded that § 922(g)(1), as construed to require only the minimum nexus to commerce approved in Scarborough, is constitutional. See, e.g., McAllister, 77 F.3d at 390; Sorrentino, 72 F.3d at 296; Shelton, 66 F.3d at 992; Hanna, 55 F.3d at 1462 n. 2.,...
    Click to expand...

  2. In U.S. v. Singletary, 268 F.3d 196 (3rd Cir., 2001), the Third Circuit affirmed a conviction for being a felon in possession against an attack on the constitutionality of 922(g), at 197:
    ...Singletary contends that the felon-in-possession statute is unconstitutional because the conduct it proscribes -- the intrastate possession of a firearm -- does not have a substantial effect upon interstate commerce, and thus does not constitute a valid exercise of Congress' authority under the Commerce Clause. Specifically,...
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    In rejected Singletary's assertion, the court of appeal noted, at 200:
    ...the Court in Scarborough v. United States had the opportunity to address squarely "whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce." 431 U.S. 563, 564 (1977). The Court accepted the Government's contention that it only need prove that "the firearm possessed by the convicted felon traveled at some time in interstate commerce." Id. at 568. Thus, the Scarborough Court established the proposition that the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession a sufficient nexus to interstate commerce to fall within the ambit of the statute. Because S 1202(a) is the predecessor to the current felon-in-possession statute, this statutory construction applies equally to S 922(g)(1)....
    Click to expand...

  3. In United States v. Hoyle, 697 F.3d 1158 (10th Cir., 2012), the Tenth Circuit affirmed Hoyle's conviction for being a felon in possession. In doing so the court of appeal noted, at 1165:
    ... “Section 922(g) requires that the firearm be possessed ‘in or affecting commerce.’” United States v. Williams, 403 F.3d 1188, 1195 (10th Cir.2005) (quoting 18 U.S.C. § 922(g)). The Supreme Court has affirmed the Fourth Circuit's holding that: “[T]he interstate commerce nexus requirement of the possession offense was satisfied by proof that the firearm [defendant] possessed had previously traveled in interstate commerce.” Scarborough v. United States, 431 U.S. 563, 566, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)...
    Click to expand...

Good luck beating an 18 USC 922(g) charge on Commerce Clause grounds. And remember that the federal law prohibits possession of a gun or ammunition.
 
HexHead said:
Frank Ettin said:
Wrong. See post 18.
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In every one of those examples, the defendant was already a convicted felon. It was already illegal for them to be in possession of a firearm.
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An alien here on a non-immigrant visa, and not falling within one of the exceptions noted in 18 USC 922(y), is no less a prohibited person than a convicted felon, or a fugitive from justice, or an unlawful user of a controlled substance, or a person convicted of a misdemeanor crime of domestic violence, or someone adjudicated as mentally defective, or who has a dishonorable discharge from the service, or who has renounced his U. S. citizenship, or who is subject to a domestic partner restraining order. Each of those is a condition which disqualifies one under 18 USC 922 (g) from possessing a gun or ammunition.

For the purposes of a prosecution for being a prohibited person in possession of a gun or ammunition (18 USC 922(g)), it makes no difference what the disqualifying condition is. Note that Barron-Rivera, which I cited in post 9, is a prosecution for violation of 18 USC 922(g) by being an alien in possession of a gun.
 
Yes, a non-immigrant alien with a hunting license is not a prohibited person under federal law. I'm not aware of any States that would prohibit an alien here on a non-immigrant visa from obtaining a hunting license as long as he meets the applicable qualifications.
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Then it seems the OP could solve his problem if his Chinese friend simply purchased a hunting license.

It seems strange that the exception doesn't say "...while engaged in hunting or travelling to or from a hunting expedition,..." or something similar, but it doesn't.
 
Ed N. said:
Then it seems the OP could solve his problem if his Chinese friend simply purchased a hunting license.
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That might be easier said than done.

Pretty much every State requires completion of a Hunter Safety class in order to get a hunting license. And if the OP's friend doesn't qualify as a resident, a non-resident hunting license can be expensive.
 
So taking Huet and Barron to it's conclusion then it is illegal for the O.P.'s friend to be anyplace a firearm is present including a private residence, vehicle and commercial business including a gun store.

That being the case what about being with someone who is carrying a firearm? Both legally and illegally?

To take the side of the Government I would argue that this law is needed to prevent terrorists from having firearms while in the United States.

A reasoned man would argue the difference between a alien that is here for peaceful reasons and someone committed to violent actions.

It would be interesting to know if gun ranges that cater to renting firearms to aliens to shoot on their ranges such as in Hawaii have researched and recieved approval from the BATF. Hawaii is of particular interest as it has strict gun laws.
 
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BSA1 said:
...That being the case what about being with someone who is carrying a firearm? Both legally and illegally?...
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If the gun is under the non-prohibited persons complete control, e. g., carried on his person, the prohibited person doesn't have access or control and therefore does not possess it. The issue is the same whether the disqualification is being a felon, being subject to a domestic partner restraining order, being an alien visiting on a non-immigrant visa, or any other basis set out in 18 USC 922(g). Nor does the ATF.

BSA1 said:
...A reasoned man would argue the difference between a alien that is here for peaceful reasons and someone committed to violent actions...
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The law is plain on its face and makes no such distinction. The law does provide for a number of exceptions, but that's not one of them.

BSA1 said:
...It would be interesting to know if gun ranges that cater to renting firearms to aliens to shoot on their ranges such as in Hawaii have researched and recieved approval from the BATF. Hawaii is of particular interest as it has strict gun laws.
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Beats me. Why don't you look into it? You know how to investigate.
 
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