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question about mailing my shotgun back to me

Discussion in 'Legal' started by greyling22, Jan 2, 2014.

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  1. greyling22

    greyling22 Member

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    in theory: if I loaned my 1100 to an uncle a year ago for him to use up in coloroado (we are on good terms, and he has 2 very nice O/U's I have my inheritance eyes on :) ). Since then my grandmother might have died and he could have stopped coming down to visit us in texas.

    The 1100 is not registered to me as I bought it from a guy locally. Could my uncle mail it to me? Or would it have to go to an ffl and I would have to pay the transfer fee?

    I tried googling the answer, but the rules and regulations are a bit unclear.
     
    Last edited: Jan 2, 2014
  2. Bubbles

    Bubbles Member

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    1) Delete your post since what you did is a felony under the 1968 GCA.
    2) All interstate transfers must go through an FFL.
     
  3. mbogo

    mbogo Member

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    Disregarding for a moment whether your loan of the shotgun constituted an illegal transfer, only YOU can ship the gun back to yourself.

    Your uncle would have to either bring it down himself, or ship it to you via FFL-to-FFL transfer. Of course, you could go to Colorado and collect it yourself.

    mbogo
     
  4. greyling22

    greyling22 Member

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    bummer.

    And since when can you not loan a gun to a family member?
     
  5. NavyLCDR

    NavyLCDR member

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    You can. Bubbles was in error.
    http://www.law.cornell.edu/uscode/text/18/922

    18 USC 922 (a)(5):

    However, that only applies to firearms that were REALLY loaned and not just left behind with someone for storage. But there is nothing that requires the original owner to remain physically present during the loan.

    That being said, since the shotgun is being mailed interstate, only you can mail/ship it to yourself. If anyone else is going to mail/ship it to you, it must go through an FFL that you will then receive it from.
     
  6. david bachelder

    david bachelder Member

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    Because the transfer took place across state lines ?????

    I'm guessing here.
     
  7. Midwest

    Midwest Member

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    Since 1968

    If you bring a firearm to another state and give it, sell it, loan it to someone else, family or otherwise, It then becomes a violation of the 1968 Gun Control Act.

    You can however bring it to a FFL in another state. And then the person who wants the gun has to get it from the FFL.


    I think the only exception to interstate transfer without a license is through an inheritance.
     
  8. greyling22

    greyling22 Member

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    ah, but it was loaned to him while we were both in texas.
     
  9. Frank Ettin

    Frank Ettin Moderator

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    But was he a resident of Texas at the time or a resident of Colorado? If the latter, he has serious problems under federal.

    Transfers of guns (possession, not necessarily ownership) can be confusing under federal law, and violation can be a serious matter.

    I'm out right now by will provide all the details later today.
     
  10. mbogo

    mbogo Member

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    So, Frank, if a friend comes to NV to hunt, and I lend him a firearm, we are contravening Federal law?

    I don't think that is true, whether I am with him or in the next valley over.

    mbogo
     
  11. Midwest

    Midwest Member

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    If person A goes to another state and hunts or target shoot, and then temporarily lends a firearm to person B (to hunt or shoot) while person A is there there and then person A takes the firearm home back to their state it should be no issue*. (*Unless state law prohibits it).

    If person A goes to another state and lends a firearm to person B and then leaves the firearm with person B and person A goes back home without firearm.... Then it is a violation of the 1968 Gun Control Act.


    If both persons are from the same state, one could loan a firearm to the other temporary or long term. (Assuming there are no state laws against it. NY State's Sullivan Law would prevent you loaning your pistol to your neighbor, unless both of you are on each others pistol permit...for example. In other states it would be OK ).
     
  12. mbogo

    mbogo Member

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    Citation, please.

    I suspect that many folks leave a firearm with a regular hunting buddy or even an outfitter in another state.

    mbogo
     
  13. Frank Ettin

    Frank Ettin Moderator

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    Citations will come when I get back to my computer.
     
  14. greyling22

    greyling22 Member

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    if they are not registered, you know, legal sales that don't have to be registered, who is to say that so and so didn't "give" then a gun. loaning prosecution doesn't seem enforceable.
     
  15. dogtown tom

    dogtown tom Member

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    There is no Federal requirement for "FFL-to-FFL".....Federal law allows the uncle to ship it to any Texas dealer himself.


    No, she isn't.
    Read the citation: "...the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;...."

    1. OP's uncle is not a resident of Texas.
    2. "Temporary use" doesn't apply as the uncle took the firearm back to Colorado.
     
  16. dogtown tom

    dogtown tom Member

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    I've read this five times and still aren't clear on what you are saying.

    1. There is no Federal gun registration.
    2. There is no Texas gun registration.
    3. A nonlicensee (you) may only transfer possession of a firearm to another resident of your state. ATF allows TEMPORARY USE for lawful sporting purposes......but that does not permit the firearm to leave your state.
    4. "Who is it to say so"? Federal law and the bureau of Alcohol, Tobacco & Firearms.
     
  17. Frank Ettin

    Frank Ettin Moderator

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    Okay, I'm back and the computer and will provide details.

    1. In general, any transfer of a firearm from a resident of one State to a resident of another must go through an FFL who will follow all usual formalities (e. g., completion of the 4473). There are a few limited, narrow, specific exceptions: if you have an appropriate federal firearms license; inheritance by will or intestate succession; or a loan (subject to a number of limitations which will be discussed in more detail below).

    2. The applicable federal statutes are: 18 USC 922(a)(3); 18 USC 922(a)(5); and 18 USC 922 (b)(3). The full texts of those statutes may be found here.

    3. The federal laws I've cited are about possession, not necessarily ownership.

      • Possession means:

      • Transfer is about possession, not ownership.

        Some definitions of "transfer" (emphasis added):


      • Let's look at the statutes:

        • 18 USC 922(a)(3), which provides in pertinent part (emphasis added) as follows:

        • And 18 USC 922(a)(5), which provides in pertinent part (emphasis added) as follows:

      • Note carefully the words of those statutes. Words, like "transport", "receive", "obtained", "transfer", "give", "transport", and "deliver" do not necessarily imply ownership and include possession. They will be read and applied by a court according to their ordinary meanings. See Perrin v. United States, 444 U.S. 37 (United States Supreme Court, 1979), at 42:

    4. With regard to loans, let's look at the applicable statutes again:

      • 18 USC 922(a)(3), which provides in pertinent part (emphasis added) as follows:

      • And 18 USC 922(a)(5), which provides in pertinent part (emphasis added) as follows:

      You may go to another State where (under 18 USC 922(a)(5)) a friend may loan you a gun to, for example, go target shooting together, or an outfitter may rent you a gun for a guided hunt. But if you were to take the gun back to your home State with you, you would be violating 18 USC 922(a)(3), which has no applicable "loan" exception. Since there is no applicable loan" exception in 18 USC 922(a)(3), a loan of a firearm may not cross state lines to the borrower's State of residence.

    5. Now let's look at storing your gun in another State.

      • Leaving a gun with someone in another State clearly raises interstate transfer problems when that person has access to the gun.

      • One possible way to avoid the problem would be to secure the gun or guns in a locked case or similar container to which only you have the key or combination.

      • That might avoid the transfer problem inherent in having someone store your guns, ATF has advised here that one may ship a firearm to himself in care of another person in another State.

        Specifically ATF has said (emphasis added):

    6. Note that violations of federal law regarding interstate transfers are punishable by up to five years in federal prison and/or a fine; and since the crime is a felony one will lose his gun rights for the rest of his life.

    People violate laws all the time, but violating laws can have all sorts of undesirable consequences. So here we try to help people avoid breaking laws related to firearms. The first step is to help folks understand what the law is and how it applies so that they can make some intelligent choices.
     
    Last edited: Jan 2, 2014
  18. mbogo

    mbogo Member

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    Correct. I was thinking handgun,not long gun.

    mbogo
     
  19. NavyLCDR

    NavyLCDR member

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    Doesn't matter. The Uncle is also allowed to ship a handgun to an FFL in any state as well.
     
  20. NavyLCDR

    NavyLCDR member

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    In regards to Frank's post #17 and my statement that the OP did not commit a felony.

    According strictly to what the OP posted (whether I or anyone else believes it is irrelevant for this discussion):

    The statement was made by Bubbles that the OP committed a Federal felony, which I contend is not true.

    18 USC 922 (a)(5) allows for the temporary loan of a firearm to another person for sporting purposes. The loan of the firearm was made by a Texas resident to the uncle who was in Texas.

    1. There is no requirement in the Federal law for the original owner to remain present or in control of the gun. If someone wants to borrow my gun to take it to the range by themselves when I am at work, there is no Federal law that says I must accompany them to the gun range.

    2. There is no time limit specified other than temporary. If I have a relative or friend, for instance, who wants to shoot in competition for 2 years of high school or college there is no Federal law that would prevent me from loaning them a shotgun to use in the competitions for the entire 2 years.

    Based entirely upon the OPs statements, the OP did not commit a Federal felony. Did the uncle violate Federal law by returning to his home state with the "borrowed" firearm? Yes. But did the OP violate Federal law only because the uncle returned to his home state with the "borrowed" firearm? Only if it could be proven that the OP "loaned" the firearm with the intention of the uncle taking it back to his home state - which would be more of aiding and/or conspiring with the uncle for the uncle to violate Federal law.

    My statements are made strictly within the limited context of the situation as described. I try not to make statements based upon what I think the situation might have been. I try to limit my statements based upon the situation exactly as described. Now, do I personally 100% fully believe this was strictly a "temporary loan for sporting purposes?" Sorry, greyling22, I don't. Do I think the "temporary loan for sporting purposes" would satisfy a jury? No, I don't. But, as Frank would quickly point out, that is irrelevant.

    Now for a bit of clarification of Frank's statement, "or an outfitter may rent you a gun for a guided hunt"... the ATF has ruled that if the rented firearm is to remain on the premises of the FFL then no form 4473 or NICS check is required. In that situation, a handgun may be rented to any person not prohibited from possessing the handgun in the state the rental is occurring in regardless of the state of residence of the recipient.

    However, if the rental firearm is to leave the premises of the FFL providing the firearm, then a form 4473 and NICS check (or equivalent) must be completed. In addition, all the laws regarding state residency must also be complied with.
     
  21. Frank Ettin

    Frank Ettin Moderator

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    I generally concur with NavyLCDR except for two points:

    1. We really don't know what a court will agree is "temporary" for the purposes of 18 USC 922(a)(5). AFAIK we have no court decisions addressing the question directly, and it might turn out to be highly dependent on the exact situation. A loan for a specified purpose and period, even if that period is long, is perhaps more likely to meet the "temporary" test than an extended loan for a vague purpose and period. But we're really sort of blind here without some cases on point.

    2. It appears to me that the OP might have some real exposure to an aiding and abetting charge with regard to the uncle taking the gun home to Colorado. As discussed, the uncle would have violated 18 USC 922(a)(3) by taking the loaned gun back to Colorado with him. But according to the OP's statement, he intended the uncle to take the loaned gun back to Colorado. The OP wrote:
      So that statement would inculpate the OP in the uncles federal felony, and as NavyLCDR wrote:
     
  22. NavyLCDR

    NavyLCDR member

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    Good point, I missed that.
     
  23. brickeyee

    brickeyee Member

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    So what?

    You are not a resident by simply being present in any jurisdiction.

    Generally you must be present with the intent to stay and make a home.

    The states residency laws have no affect.

    BATFE's rules apply.

    I would not push the lending rules that hard.

    While it is unlikely anything would happen, the intent of the rule is for person A to borrow a gun from person B in B's home state, for use in that state in hunting.

    The intent of the law and regulation as seen by the originator matters.
     
  24. Deltaboy1984

    Deltaboy1984 Member

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    Wow what a mess.
     
  25. jj1962hemi

    jj1962hemi Member

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    There's a lesson here for those that think the NRA and other gun rights groups are "over the top." If the average American gun owner (even the guy with an old Stevens 12 ga. SxS that gets used every other season) was aware of all of these ridiculous requirements, they wouldn't still be the law of the land. I'm guessing that there are more people that would fight this stuff than not if they were better informed.

    These issues became real to me when I understood that it would be a bad idea for me to give my Dad on old .38 for his home (without both of us paying our respective FFLs for a transfer and shipping on a $2-300 gun), because he's 50 miles away in another state. I have a good personal collection, all purchased legally, with many 4473 forms and insta-checks (yeah, I'm sure they've all been purged....) on my record. I didn't want to risk bringing the wrath of the ATF down on me, committing a felony, losing my guns, my CC permit, my professional licensing (can't be a felon) and my job (no felonies allowed).......

    The stupidity of this is mind-boggling yet, it's been the law for years! How many unwitting felons has this law created? How many grandfathers want to give their grandkids a gun before they die, or, outside of a legal will? How many "inherited" guns (outside the legal definition of "inherited" because they weren't gifted in via a legal writing) are in huge safes next to tactical weapons that may be banned some day? At the risk of sounding like a tinfoil-hatted-black-helicopter=type, I picture an inspection (or even a paperwork review) of somebody's safe (maybe upon filing the paperwork for a suppressor?) that results in a nice excuse to ruin a collector.

    If you want things to be better, stay involved and "say it with a check" to the pro-RKBA organization of your choice.
     
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