Possession vs Ownership.

[lilguy]

On another site I frequent it’s suggested that ownership of a state banned firearm is not illegal. It’s possession in said state is. So one can just move it to an out of state storage site and or relative and ride our the ban/ registration system.

This below is the statement

“That same concept applies to the state ban. They can't make it illegal to posses things somewhere else so if, for example, you own property in another state or your brother lives in Hammond or there's a range in Wisconsin where you can store them, relocate them and you're good to go.”

Please help us understand the process. A lot of turmoil and misinformation in my state now. The situation changes weekly with all the court action. Thanks all.

 

[CoalCrackerAl]

Maybe these folks can help.
Handgunlaw.us

 

[Spats McGee]

On another site I frequent it’s suggested that ownership of a state banned
firearm is not illegal. It’s possession in said state is. So one can just move it to an out of state storage site and or relative and ride our the ban/ registration system.

I'm going to presume from your location that we're talking about Illinois law. At the moment, IL is what I'd call "a fist-fight and a foot-race" when it comes to its gun laws.

This below is the statement

“That same concept applies to the state ban. They can't make it illegal to posses things somewhere else so if, for example, you own property in another state or your brother lives in Hammond or there's a range in Wisconsin where you can store them, relocate them and you're good to go.”

Please help us understand the process. A lot of turmoil and misinformation in my state now. The situation changes weekly with all the court action. Thanks all.

Given that I don't know who said this, or what the rest of the discussion was about, or even where Hammond is, I'm reluctant to address it directly. With that said, it is true that a state cannot really regulate what you own or possess outside its boundaries. Suppressors may be completely illegal in IL (I don't know if they are), but IL doesn't get a say as to whether I own one here in AR on the state level. It's important to understand the distinction between ownership and possession. I own several guns. However, I'm at work, so I don't have them with me. Hence I do not, at this particular moment, possess them. I recently loaned a rifle to an old friend of mine. For the time he had it, he possessed it, but he never owned it.

Finally, be cautious with the idea that you can just move a firearm out of state to a "storage site." Depending on what you mean by storage site, you may be transferring the possession of the firearms across state lines without using an FFL, which runs afoul of federal law.

Hope this is of help, but you may want to talk to a lawyer licensed in IL (I'm not), and versed in gun law.

 

[WilsonCQB1911]

Storing guns in a different state is a perfectly legal and reasonable way to stay legal if said firearms are illegal in the state you currently reside in. It is not a transfer of ownership and an FFL does not need to be involved.

 

[Spats McGee]

Storing guns in a different state is a perfectly legal and reasonable way to stay legal if said firearms are illegal in the state you currently reside in. It is not a transfer of ownership and an FFL does not need to be involved.

It's been a while since I looked at this issue, so I went back and refreshed my memory. I'm not convinced this is correct. I've underlined the problematic passage.

[It shall be unlawful...](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;...

18 U.S.C.A. § 922 (West).

That collection of words that I emphasized above seems to encompass a lot more than just transfers of ownership. There's a specific carve-out for temporary loans, which would seem unnecessary if "transfer" were merely a matter of ownership and not possession.

The Fourth Circuit looked at this particular clause and noted that: "As we have explained, § 922(a)(5) creates a single offense of transferring firearms between unlicensed parties, and it identifies multiple ways that the transfer can occur—by selling, trading, giving, transporting, or delivering." United States v. Duroseau, 26 F.4th 674, 681 (4th Cir. 2022).

I also stumbled across a decision from the 11th Circuit, looking at the same subsection: "To prove that a defendant violated 18 U.S.C. § 922(a)(5), the government must offer evidence of four essential elements: (1) the defendant was not a licensed firearms importer, manufacturer, dealer, or collector; (2) the defendant transferred, sold, traded, gave, transported, or delivered a firearm to another person; (3) the person to whom the defendant transferred the firearm was not a licensed importer, manufacturer, dealer, or collector; and (4) the defendant knew or had reasonable cause to believe that the person to whom the firearm was transferred did not reside in the defendant's state or residence." United States v. Focia, 869 F.3d 1269, 1277–78 (11th Cir. 2017).

Again, no mention of ownership.

 

[Elkins45]

It's been a while since I looked at this issue, so I went back and refreshed my memory. I'm not convinced this is correct. I've underlined the problematic passage.


18 U.S.C.A. § 922 (West).

That collection of words that I emphasized above seems to encompass a lot more than just transfers of ownership. There's a specific carve-out for temporary loans, which would seem unnecessary if "transfer" were merely a matter of ownership and not possession.

The Fourth Circuit looked at this particular clause and noted that: "As we have explained, § 922(a)(5) creates a single offense of transferring firearms between unlicensed parties, and it identifies multiple ways that the transfer can occur—by selling, trading, giving, transporting, or delivering." United States v. Duroseau, 26 F.4th 674, 681 (4th Cir. 2022).

I also stumbled across a decision from the 11th Circuit, looking at the same subsection: "To prove that a defendant violated 18 U.S.C. § 922(a)(5), the government must offer evidence of four essential elements: (1) the defendant was not a licensed firearms importer, manufacturer, dealer, or collector; (2) the defendant transferred, sold, traded, gave, transported, or delivered a firearm to another person; (3) the person to whom the defendant transferred the firearm was not a licensed importer, manufacturer, dealer, or collector; and (4) the defendant knew or had reasonable cause to believe that the person to whom the firearm was transferred did not reside in the defendant's state or residence." United States v. Focia, 869 F.3d 1269, 1277–78 (11th Cir. 2017).

Again, no mention of ownership.

This appears to be one of those situations where one needs to find a way to store guns in another state, but to do so in such a way that no other person may access them. The example often given is storing them in a locked container in someone else’s home for which only the owner has a key/combination. The homeowner would never be in possession of the guns because they were behind a door they cannot open.

 

[Spats McGee]

This appears to be one of those situations where one needs to find a way to store guns in another state, but to do so in such a way that no other person may access them.....

It does, indeed.

 

[dogtown tom]

A person in state A most certainly can store firearms in State B. People have second homes and store all manner of personal possessions in their home or the home of another person without a transfer of possession occurring.
If it's YOUR home in state B, leave it there in a safe, under the mattress, in a closet or over the fireplace.
If it's NOT your home, but you leave it in care of another person in State B, it needs to be secured so that only YOU have access. Such as a safe or locked case. That is not a transfer of possession.

There's a specific carve-out for temporary loans, which would seem unnecessary if "transfer" were merely a matter of ownership and not possession.

If it's lawfully possessed, as in not transferred to the person who is storing your locked and inaccessable firearm....it's not a temporary loan or loan of any sort.
Remember, it's perfectly fine under Federal law to ship your own firearm (addressed to yourself) to a person in another state. That recipient cannot open the package. Again, thats federal law and must comply with state law in both states.

 

[dogtown tom]

..... With that said, it is true that a state cannot really regulate what you own or possess outside its boundaries....

But they can prevent their residents from buying and taking possession. California, no surprise, prohibits residents from buying any rifle or shotgun when out of state and taking possession immediately. Thats been legal under federal law since 1986. California law requires that the seller ship that firearm to a California FFL who will complete the transfer to the CA resident.

Another example is buying a rifle or shotgun when out of state that is a model or version illegal to possess in the buyers state of residence. That means the FFL must know what firearms are legal under the buyers state law. That's why some dealers refuse to sell to nonresidents.

 

[Spats McGee]

Thank you @dogtown tom

 

[lilguy]

Boiled down to its essence. Yes we are talking about Illinois. It’s a nightmare for the law abiding. A 500 nitro express Ruger # 1 is an assault weapon now, along with the S+W 500 revolver. They want them registered or gone if owned before the January enactment date.Is it legal to move them out of state and keep them with a relative secured and or unsecured, in a locked U storage or at a range?

 

[Elkins45]

Remember, it's perfectly fine under Federal law to ship your own firearm (addressed to yourself) to a person in another state. That recipient cannot open the package. Again, thats federal law and must comply with state law in both states.

Do you happen to know if USPS regs will allow this (with a long gun, of course) or must it be done with a common carrier?

 

[lilguy]

I'm going to presume from your location that we're talking about Illinois law. At the moment, IL is what I'd call "a fist-fight and a foot-race" when it comes to its gun laws.


Given that I don't know who said this, or what the rest of the discussion was about, or even where Hammond is, I'm reluctant to address it directly. With that said, it is true that a state cannot really regulate what you own or possess outside its boundaries. Suppressors may be completely illegal in IL (I don't know if they are), but IL doesn't get a say as to whether I own one here in AR on the state level. It's important to understand the distinction between ownership and possession. I own several guns. However, I'm at work, so I don't have them with me. Hence I do not, at this particular moment, possess them. I recently loaned a rifle to an old friend of mine. For the time he had it, he possessed it, but he never owned it.

Finally, be cautious with the idea that you can just move a firearm out of state to a "storage site." Depending on what you mean by storage site, you may be transferring the possession of the firearms across state lines without using an FFL, which runs afoul of federal law.

Hope this is of help, but you may want to talk to a lawyer licensed in IL (I'm not), and versed in gun law.

Thanks, it helps.
No silencers are not legal in Illinois, Hammond is next door in Indiana. You can’t legally order a silencer in a free state using a relatives address to be kept there I would imagine, thats not at all the discussion.
The point was about moving newly banned items to a free state to be stored by someone else.
I've been worried about a lot of misinformation being thrown around in the wake of this new law. Thats why I come here with questions and keep politics out. Its very difficult to get calm discussion going in some sites.

 

[dogtown tom]

Do you happen to know if USPS regs will allow this (with a long gun, of course) or must it be done with a common carrier?

USPS does not prohibit anyone from shipping a firearm addressed to themselves.
Read the sticky on Shipping firearms.

Again, UPS and FedEx no longer allow nonlicensees to ship firearms.

 

[CapnMac]

Is it legal to move them out of state and keep them with a relative secured and or unsecured, in a locked U storage or at a range?

Not with a relative--that's is a Transfer except under very narrow definitions (as in you buy a safe to install at the relative's house and specifically deny them access).

A self-storage unit may restrict what can be stored on their premises--and flammables/explosives/ammunition along with firearms are often explicitly prohibited. You'd need a safe, as well--and delivering one might be a trifle obvious.

If you can find a range willing to accept such arms, more power to you. That's a lot or variables to pile together. Like is the secure storage secure enough? Will they even allow an out-of-state person to use that storage?

Now, there's likely any number of people "just doing it anyway" without regard to whether it's a crime or not. Probably near as many have no idea the law could be changing and that it affects them in the slightest.

 

[lilguy]

Thanks for the input everyone. I thought the blanket statement just move them out of state to someone you know was too vague. Locking them in a real safe that only the owner of the item can access is one real way to go,

“Hey Bro, can I leave this rifle in your closet until this all blows over?” did not seem like sound legal advice.

 

[PapaG]

In Illinois, to purchase, own, or possess a firearm (or ammunition, certain air guns and muzzle loaders) you need to have a valid FOID (firearm owners identification card).

 

[lilguy]

I’m constantly being told that “the FOID is unconstitutional”. 53 years later I’m still required to have one, maybe it’s not. And having one is not protecting any of us from the effects of a new law passed this year. It will just make it easier for the authorities to contact us when it’s time to surrender. It’s been a great run.

 

[dweis]

When speaking about a law the problem is always that it cannot be interpreted by the wording of the law. Courts ultimately determine what a law actually means. Yet, we can make a general deduction by looking at what courts look at when the want to understand meanings—the dictionary. Ownership is defined as having the legal or rightful title to something. Possession is defined as having or taking into control,ofmsomething. So you can own something but not possess it, but possession is not in itself ownership. So in any given state the key might well be to see how the courts define the two terms. That being said, no state law has any force in different state. So if your state bans ownership, then merely giving possession of the item to another person in another state does not solve the problem because you still own it. On the other hand, if a state bans possession and you sent it out of state to another persons who takes possession of it you no longer possess it while you still own it. So the key factor is how a the words ownership and possession are defines under state law.

 

[AlexanderA]

So if your state bans ownership, then merely giving possession of the item to another person in another state does not solve the problem because you still own it. On the other hand, if a state bans possession and you sent it out of state to another persons who takes possession of it you no longer possess it while you still own it. So the key factor is how a the words ownership and possession are defines under state law.

You don't give "possession" to someone in another state, without going through an FFL, unless you violate federal law. So the way it works is that you retain possession in the other state, by placing the gun so that no one else has access to it.

As you stated, a state cannot ban you from possessing something in another state.

 

[Spats McGee]

I’m constantly being told that “the FOID is unconstitutional”.....

I see this a lot on gun boards. The reality of the situation is that you have to ask yourself, "Even if the FOID is unconstitutional, am I prepared to be the test case?"

 

[dogtown tom]

As you stated, a state cannot ban you from possessing something in another state.

Tell that to every Californian.
California state law prohibits the transfer of a firearm to a California resident outside the state of California.

A Californian cannot buy and possess a rifle or shotgun in Texas even though residents of other states can.

A resident of Connecticut cannot acquire an AR rifle that is prohibited under Connecticut law while in another state.

Federal law only allows a nonresident to acquire a rifle or shotgun when the firearm is legal to possess in the buyers state of residence.

This ain't new, being federal law for decades and discussed on THR dozens of times.

May an unlicensed person acquire a firearm under the GCA in any state?
Generally, a person may only acquire a firearm within the person’s own state. Exceptions include the acquisition pursuant to a lawful bequest, or an over-the-counter acquisition of a rifle or shotgun from a licensee where the transaction is allowed by the purchaser’s state of residence and the licensee’s state of business. A person may borrow or rent a firearm in any state for temporary use for lawful sporting purposes.

[18 U.S.C 922(a)(3); 27 CFR 478.29]

 

[MEHavey]

California, no surprise, prohibits residents from buying any rifle or shotgun when out of state and taking possession immediately. That's been legal under federal law since 1986.

Huh?
As far as I know, long guns were/are* legal to purchase (through an FFL) when the person was outside of his state of residence.

* something change in `86?


.

 

[RickD427]

Huh?
As far as I know, long guns were/are* legal to purchase (through an FFL) when the person was outside of his state of residence.

* something change in `86?


.

Yes, some things have changed.

The federal law used to (please note the use of the past tense) permit a person to purchase a rifle of shotgun in a state that adjoins their state of residence. Current federal law allows a person to purchase or take possession of a rifle or shotgun in any state, but with the restriction that the sale or transfer has to comply with the laws of both the state where the sale or transfer occurs and the state of residence of the purchaser or transferee (please refer to 18USC922(b)(3)).

The prohibition on the California resident purchasing a rifle or shotgun outside of California is rooted in California law and the "compliance" clause of 18USC922(b)(3).

California requires its residents to conduct the sale, or transfer, of a firearm through a California licensed dealer (please refer to California Penal Code section 27545). The requirements to obtain the required state license effectively prohibit businesses outside of California from obtaining the required California license (please refer to Penal Code section 26705).

The combined effect is that a California resident may not purchase a shotgun or rifle outside of California.

 

[AlexanderA]

Huh?
As far as I know, long guns were/are* legal to purchase (through an FFL) when the person was outside of his state of residence.

Provided that the purchase is legal in both states (the state where purchased and the buyer's state of residence). This has always been the rule (even when purchases were limited to contiguous states).

Tell that to every Californian.
California state law prohibits the transfer of a firearm to a California resident outside the state of California.

A Californian cannot buy and possess a rifle or shotgun in Texas even though residents of other states can.

This is because of federal law, not California law. States in general cannot enforce their rules outside their boundaries.

But I would question the statement about possession by a Californian in Texas. What crime has been committed?