Law concerning inheritance of firearms

[Graystar]

The legal definition contained in 27CFR reads as follows:

The CFR is not law. The fact that the ATF defined commerce means that they can harass you, but charging you with a crime is a different ball game. No one has gone to jail for violating the CFR. You go to jail for violating the USC. And in the USC, Title 18, Chapter 44, there is no definition for “commerce.â€

There is, however, a definition for “interstate commerce.†Here’s something interesting...

From 18USC921(2)
The term ''interstate or foreign commerce'' includes commerce between any place in a State and any place outside of that State,
...
but such term does not include commerce between places within the same State but through any place outside of that State.

From 27CFR478.11
Commerce. Travel, trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia and any State, or between any foreign country or any territory or possession and any State or the District of Columbia, or between points in the same State but through any other State or the District of Columbia or a foreign country.

So here is an obvious conflict between the law and the CFR. Who do you think wins?

 

[Mark in California]

Legal Matters

If you can not just pick up your property, have the lawyer representing the estate send you your property UPS. The lawyer could just state the contents as "Legal Matters".

 

[Jeff OTMG]

Graystar and EOD Guy, no conflict.
18USC921(2) is the definition of 'interstate commerce', commerce across state lines.
27CFR478.11 is the defintion of 'commerce', not INTERSTATE commerce, so encompasses sales within the same state and outside the state.

EOD Guy, The point is that an FFL is only needed for transfers for firearms passing in INTERSTATE COMMERCE, but this is a moot point because there is no COMMERCE of any type for these firearms. The guy is already the owner and became the owner as a result of a intestate succession, no transfer is needed because no commerce of any type occurred. Shipment is not commerce, sale is commerce.

 

[EOD Guy]

EOD Guy, The point is that an FFL is only needed for transfers for firearms passing in INTERSTATE COMMERCE, but this is a moot point because there is no COMMERCE of any type for these firearms. The guy is already the owner and became the owner as a result of a intestate succession, no transfer is needed because no commerce of any type occurred. Shipment is not commerce, sale is commerce.

You are correct that an FFL is only required in interstate transfers. You are also correct in that no FFL is required in transfers as a result of a bequest from an estate or intestate succession. However, commerce has nothing to do with ownership. The fact that a firearm travels over a state line means that it was in interstate commerce.

An FFL is not required because there is a specific part of 27CFR that exempts the transfer from FFL involvement.

The CFR is not law. The fact that the ATF defined commerce means that they can harass you, but charging you with a crime is a different ball game. No one has gone to jail for violating the CFR. You go to jail for violating the USC. And in the USC, Title 18, Chapter 44, there is no definition for “commerce.â€

The Code of Federal Regulations certainly does have the effect of law. When Congress passes a bill that is signed into law, they have authorized the appropriate secretary of the Executive Branch to write regulations to codify the law and to publish them in the Federal Register. 27CFR is a special edition of the Federal Register. If there is a direct conflict between the law and the regulation, the courts would be the ones to determine which is to be followed.

You are correct in that criminal charges are generally filed quoting the US Code, but the CFR violated could also be quoted. Civil violations are regularly written using only the CFR as a reference.


27CFR does a very good job of following the text of the law. In almost all cases, the wording in the regulation and the wording in the law are identical. You would have trouble with a lot of Federal regulations correlating reglation and law. For instance, try reading 40CFR or 49CFR sometime.

 

[Jeff OTMG]

> commerce has nothing to do with ownership. The fact that a firearm travels over a state line means that it was in interstate commerce

I gotta disagree here. Commerce is an act of business, as a city Chamber of Commerce is a group of people conducting business within a city. Commerce involves a transfer of ownership of something of value for something of value. If that happens across state lines, it is interstate commerce. Interstate commerce has nothing to with a firearm travelling across state lines unless a sale has occurred. I had a firearm today travel with me from Phoenix to Oklahoma City and tomorrow it will go from OKC to Austin. That gun is travelling across many state lines, but it is not travelling in interstate commerce because it is not changing ownership. Commerce of any kind requires that possession or ownership of the item is changing and, as a result, it as everything to do with ownership. Commerce has nothing to do with crossing state lines UNLESS it is INTERSTATE commerce. Nearly every firearm in the country has passed in interstate commerce at some time, but as we see in federal gun laws, private sales between residents of the same state are unregulated to non-prohibited persons because the federal government has no jurisdiction to control those sales within a state between two residents because, although commerce exists, it isn't interstate commerce. In California you have state laws that prohibit this, but it is not a federal law. For some good info on commerce and interstate commerce read the Ninth Circuit Court opinion in U.S. v. Stewart:
http://caselaw.lp.findlaw.com/data2/circs/9th/0210318p.pdf

 

[Graystar]

I gotta disagree here. Commerce is an act of business

I’m guessing that what EOD Guy is saying is that, regardless of the dictionary (or even legal dictionary) definition of commerce, the ATF has defined commerce as including the simple movement of firearms across state lines. The reason for the movement is immaterial.

There is some basis for this. For example, take the federal law that allows travel with your firearms through states, even states that ban possession, just as long as the guns are locked up and the stops are short and necessary (food, lodging, etc.) Driving your guns around the country has absolutely nothing to do with commerce in the business sense, but yet we still champion the law. I don’t here anyone complaining that it’s an unconstitutional law because there’s no interstate commerce involved.

But Jeff OTMG does have a point, in that the law in question explicitly states “interstate or foreign commerce,†while the ATF explicitly defined “commerce.†The definition of interstate commerce starts with, “...includes commerce between any place in a State and any place outside of that State,...†However, the term commerce is left undefined by the law.

Most likely, what happens will be based on what the judge thinks commerce means.

 

[Don't Tread On Me]

In other words, it is legal for me to give a firearm to my brother who lives in another state, so long as he comes to my state and picks it up and drives it back. Of course, provided that firearm is legal in that state and my brother is legal to own a firearm in the first place.


If he can't pick it up, I would have to mail it to an FFL in his State where he can pick it up locally.



It would be illegal for me to SELL a firearm to someone in another state, even if they came to my door step to buy it after paying for it. I am only exempt from penalty IF I didn't know they were from another State. That is a tough sell though....since the term "reasonable" is used in that part of the law. I would have to show I was really suckered into it and I had no way of knowing they were out of State.


Sellling is illegal for private individuals between states without an FFL in the process. GIVING is legal and requires no FFL, provided it is picked up manually, if shipped, then needs FFL.



Is this correct??

 

[dolanp]

GIVING is legal and requires no FFL, provided it is picked up manually, if shipped, then needs FFL.

Giving is no different from selling unless one of the following applies:

(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;

See USC Title 18, 922(a)(5).

 

[Graystar]

Ditto on what dolanp said.

 

[Jeff OTMG]

Graystar,
'regardless of the dictionary (or even legal dictionary) definition of commerce, the ATF has defined commerce as including the simple movement of firearms across state lines.'

That is incorrect. BATF cannot define terms nor can a judge. Interstate commerce is defined in the US Code (18USC10).
TITLE 18 > PART I > CHAPTER 1 > § 10
§ 10. Interstate commerce and foreign commerce defined
The term “interstate commerceâ€, as used in this title, includes commerce between one State, Territory, Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia.

This definition of 'interstate commerce' is the reason that BATF allows entestate succession of firearms to occur WITHOUT a transfer taking place. That is why there are no federal laws against private transfers. That is why BATF specifies that private transfers must be between residents of the same state. That is why residents of the same state can ship guns to each other when one sells a gun to another. That is why you can ship a gun to yourself, you own it and it is not passing in commerce.

A firearm crossing a state line does not constitute commerce regardless of what BATF would like it to be. It is why you can make guns for yourself without serial numbers. Guns in interstate commerce are under BATF jurisdiction, BUT it has to be INTERSTATE commerce, in this case it isn't even COMMERCE, let alone interstate.

The Stewart case is a classic example of what is and isn't interstate commerce. The State of Montana is poised to pass a law that would exempt firearms manufactured in the state and that stay inside the state from federal regulation. The reason is that the ONLY jurisdiction the federal govt has on firearms is through the interstate commerce clause. The whole 'interstate commerce' question was answered by the Supreme Court in 1969, after the GCA 68 passed. The power of BATF under the GCA 68 comes ONLY from Interstate Commerce. Without the interstate commerce clause, the GCA 68 could not stand. The U.S. Constitution gives certain powers to Congress regarding commerce and it is found in Article 1, Section 8, Clause 3:
Section 8. The Congress shall have power ....;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

It is examined much more closely in Gibbons v. Ogden (1824)
The commerce clause authority EXCLUDES commerce which
1. is completely within a particular state,
2. does not affect other states, and
3. is not necessary for the national government to regulate to carry out some of its general powers.

Therefore, nhhillbilly became the owner of the firearms through a bequest. They are his, as such they can move between states since they are not moving in commerce. It would be the same thing as me shipping my guns to Indianapolis and picking them up in the office there. Commerce is not movement.

 

[Jeff OTMG]

double tap

 

[Graystar]

That is incorrect. BATF cannot define terms nor can a judge.

The BATF can define anything it wants. Whether those definitions will be valid in court is another issue. But judges, however, ARE the ones that have the final say on what a term means within the context used. That has always been the case. That is why the term commerce is so expansive today.

Interstate commerce is defined in the US Code (18USC10).
TITLE 18 > PART I > CHAPTER 1 > § 10...

Yes it is defined there. It’s also defined in a myriad of other places to match the context under which the term is used. Chapter 44 contains it’s own definition of interstate commerce, which supersedes the general meaning when used within Chapter 44.

In any case, the definition of interstate commerce give no clue as to the definition of commerce, and the term commerce isn’t defined anywhere in Title 18. Findlaw has a good write-up on the commerce clause and the definition of commerce:

http://caselaw.lp.findlaw.com/data/constitution/article01/28.html#1

...today, ''commerce'' in the constitutional sense, and hence ''interstate commerce,'' covers every species of movement of persons and things, whether for profit or not, across state lines, 585 every species of communication, every species of transmission of intelligence, whether for commercial purposes or otherwise, 586 every species of commercial negotiation which will involve sooner or later an act of transportation of persons or things, or the flow of services or power, across state lines.

The BATF does not have the power to create law, but the CFR has the force of law in so far as it matches the actual US Code. In the same way, the BATF doesn’t have the power to legally define terms, but their definitions could be valid in so far as they match current legal doctrine.