Handgun given as gift across state lines?

[MikePapa1]

That's really the only fully legal way. If it is really a gift or sale to be taken over state lines, then it must be transferred through an FFL. Now the last time my son visited, I loaned him one of my .30 Carbines, but I'll get that back at some point.

[DaveTN]

Is your son by chance a Tennessee resident and serving in the military in Texas?

If not and he’s a Texas resident, legally it needs to be sent to a Texas FFL.

[exiton]

Great thread. Answered some questions about gifting to an out of state friend. Thanks!

[TNRobocop]

That's really the only fully legal way. If it is really a gift or sale to be taken over state lines, then it must be transferred through an FFL. Now the last time my son visited, I loaned him one of my .30 Carbines, but I'll get that back at some point.

Congrats for committing a federal law violation if he took it back home with him across state lines.

[bubbadavis]

Congrats for committing a federal law violation if he took it back home with him across state lines.

Care to elaborate? My understanding is that a firearm can be loaned to a resident of any state (for a lawful purpose). Nothing on the ATF site (that I could fine) states that they can or cannot carry the firearm across state lines.

From the ATF FAQ (ATF Online - Firearms - Frequently Asked Questions - Unlicensed Persons Question 1):

A person may sell a firearm to an unlicensed resident of his State, if he does not know or have reasonable cause to believe the person is prohibited from receiving or possessing firearms under Federal law. A person may loan or rent a firearm to a resident of any State for temporary use for lawful sporting purposes, if he does not know or have reasonable cause to believe the person is prohibited from receiving or possessing firearms under Federal law. A person may sell or transfer a firearm to a licensee in any State. However, a firearm other than a curio or relic may not be transferred interstate to a licensed collector.

[18 U.S.C. 922(a)(3) and (5), 922(d), 27 CFR 478.29 and 478.30]

[TNRobocop]

You have your answer in your own statements. The firearm may be loaned to a resident of any state for sporting purposes (i.e. loaning a gun to go hunting with), but since it cannot transfer across state lines without a FFL involved, it is meant for use within the state the firearm owner lives in.

Loaning does not circumvent the law about crossing state lines. Common sense.

[DaveTN]

Loaning does not circumvent the law about crossing state lines. Common sense.

You are thinking like a cop.

The intent may well be to commit a felony by circumventing the legal transfer, but the letter of the law allows it. (I assume the letter of the law allows it; those are merely ATF FAQ’s that are being quoted. I have not looked at the written law.)

You have your answer in your own statements. The firearm may be loaned to a resident of any state for sporting purposes (i.e. loaning a gun to go hunting with), but since it cannot transfer across state lines without a FFL involved, it is meant for use within the state the firearm owner lives in.

I think you are adding something that is not there. If that was the intent it would say within their own state.

Temporary use is not defined. The family member could be using it for IDPA over a long period of time.

However, who would want to run the risk of a felony conviction or even court costs when they can just do the transfer? Many things could be argued in court; but who in their right mind wants to play that game?

[Guest HexHead]

You can buy a long arm in another state and carry it home. Only handguns are required to be shipped to the home state FFL for final delivery.

[DaveTN]

You can buy a long arm in another state and carry it home.

That is true but many dealers won’t sell to an out of state buyer because they are responsible to know the laws of both the state they are in and the buyer’s state.

Only handguns are required to be shipped to the home state FFL for final delivery.

We are talking about transferring to another person; and that must go through an FFL even on a long gun.

[Oh Shoot]

You are thinking like a cop.

Yep. The loan/rent is not an "addition to", it is an "exception from".

The intent may well be to commit a felony by circumventing the legal transfer, but the letter of the law allows it. (I assume the letter of the law allows it; those are merely ATF FAQ’s that are being quoted. I have not looked at the written law.)

It's pretty simple:

"18 U.S.C. § 922 : US Code - Section 922: Unlawful acts

(a) 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 ( the loan or rental of a

firearm to any person for temporary use for lawful sporting

purposes;"

Later down in the statute is the proviso about neither dealer nor individual providing a firearm to any individual known to be underage, felon, nuts, etc, so one would assume that this does not exempt one from any of that, although the exception does say "to any person" (but I wouldn't imagine that you could knowingly loan a felon a gun under the intent of this exception).

Also note that there can be STATE laws involved in this though, like in states where you have to have a license to acquire a firearm (FOID in IL, handgun purchase permit in NC, etc), so I'd say those things have to be done by the receiver before the loan, but federal law is not concerned with that .

I think you are adding something that is not there. If that was the intent it would say within their own state. ...

Yep, agree.

- OS

Edited December 5, 2010 by OhShoot

[bubbadavis]

You have your answer in your own statements. The firearm may be loaned to a resident of any state for sporting purposes (i.e. loaning a gun to go hunting with), but since it cannot transfer across state lines without a FFL involved, it is meant for use within the state the firearm owner lives in.

Loaning does not circumvent the law about crossing state lines. Common sense.

The laws do not cover crossing state lines - they involve transfers and states of residence. The AFT regs and FAQ explicitly mention loaning with different standards than transfers. I take that to imply that a loan is not a transfer.

Your interpretation would imply that I can't loan my father (who lives in another state) a rifle while I'm visiting him. Laws very often do not have anything to do with common sense.

I'd really like to see a statue, or established case law, that makes loaning a firearm to someone who resides in another state illegal. Otherwise, we have people (me included), without legal training, throwing out their interpretation of the laws.

[Oh Shoot]

.... Otherwise, we have people (me included), without legal training, throwing out their interpretation of the laws.

I assure you that any number with legal training do much the same.

Indeed, without any real body of case law on a matter, that's all they can do; and of course those opinions generally lean toward their self interests as prosecutor or representing defendant,.

- OS

[bubbadavis]

Understood OhShoot. That said, I'd prefer the opinion of someone with legal training than those of us without.

Without case law, or a plainly worded law, we are all just giving our views on the law. That was why I mentioned wanting either a reference to a law that backs up the statement that loaning a firearm to a non-licensee from another state is illegal or some references to established case law.

[Oh Shoot]

...wanting either a reference to a law that backs up the statement that loaning a firearm to a non-licensee from another state is illegal or some references to established case law.

Previous comment was "in general", but as far as the loaning issue, methinks if anybody had been prosecuted for it, it would be universally known, just like the many other infractions with which the BATF does hammer folks.

- OS

Edited December 6, 2010 by OhShoot

[DaveTN]

Understood OhShoot. That said, I'd prefer the opinion of someone with legal training than those of us without.

Without case law, or a plainly worded law, we are all just giving our views on the law. That was why I mentioned wanting either a reference to a law that backs up the statement that loaning a firearm to a non-licensee from another state is illegal or some references to established case law.

It’s like any other law Bubba; intent of the person is an element of the law. You could have the State Attorney General give you an interpretation of the law and that doesn’t bind a judge to anything.

As a cop I saw attorneys (on the same side) disagree many times on the meaning and application of a law. The only person that can give you an interpretation of the law or how it is applied to a specific case; is the Judge. At least he is the only one that matters if the charge has progressed through the cops, DA, and is now in a courtroom. The cops can choose not to arrest, the DA can choose not to prosecute, but that doesn’t give any meaningful interpretation of a law.

We have these good discussions here because we have such a cross section of background. Some try to interpret the laws the way they think they were intended, some try to interpret the laws the way they want them to be, some try to interpret the laws based on something that has no bearing on the case (like the 2<SUP>nd</SUP> amendment) and some are totally clueless about what’s going on most of the time they just want to argue.

You can read the AFT FAQ’s just like the rest of us. At the bottom of each of those FAQ’s they reference the section of the United States Code they are about. Don’t kid yourself that you need to be a lawyer to understand what it is saying. And if you do want to ask a lawyer you need to ask a lawyer that specializes in criminal law and knows the gun laws.

But the bottom line is that it’s on you. Whether it is gun laws, DUI, or search and seizure on a traffic stop; it’s up to you to know what is going on. Lawyers step in and try to fix things generally after you have screwed up.

[bubbadavis]

It’s like any other law Bubba; intent of the person is an element of the law. You could have the State Attorney General give you an interpretation of the law and that doesn’t bind a judge to anything.

<snip>

You can read the AFT FAQ’s just like the rest of us. At the bottom of each of those FAQ’s they reference the section of the United States Code they are about. Don’t kid yourself that you need to be a lawyer to understand what it is saying. And if you do want to ask a lawyer you need to ask a lawyer that specializes in criminal law and knows the gun laws.

But the bottom line is that it’s on you. Whether it is gun laws, DUI, or search and seizure on a traffic stop; it’s up to you to know what is going on. Lawyers step in and try to fix things generally after you have screwed up.

Hi Dave, thanks for the input. I understand that no one has to be a lawyer to read and understand the laws. I was the one that posted an excerpt from the ATF FAQ earlier. I've read through the referenced law and I see a difference being drawn between loaning a firearm and transferring one. Others on this forum disagree. I would like to see what they are basing their interpretation on. Maybe I'm just overlooking something that is obvious to others? Or the discussion becomes what is the legal definition of loaning versus transferring a firearm?

It really comes down to established case law, if it exists on this subject. Otherwise we are all just throwing out our opinions.

[Oh Shoot]

...

You can read the AFT FAQ’s just like the rest of us. At the bottom of each of those FAQ’s they reference the section of the United States Code they are about. Don’t kid yourself that you need to be a lawyer to understand what it is saying. ...

There is one glaring fault in those "FAQs". BATF always says that any carrier needs to be notified that the shipment contains a gun.

In fact, the law clearly states, twice, that only in the case of guns going to a non licensee is the notification required.

- OS

[DaveTN]

There is one glaring fault in those "FAQs". BATF always says that any carrier needs to be notified that the shipment contains a gun.

In fact, the law clearly states, twice, that only in the case of guns going to a non licensee is the notification required.

- OS

This has been brought up before. More than one statute says you have to notify the shipper.

This is a case where many disagree. I believe the intent of the law has nothing to do with making sure the wrong person doesn't get a gun, and has everything to do with letting the shipper know that they have weapons on-board so they can make proper arrangements.

I was not allowed to ship a gun that I was legally shipping at the Murfreesboro UPS terminal. I was pizzed, but not enough to lie about it or not report it. I may be wrong, but I’m not going to court over it.

[Oh Shoot]

This has been brought up before. More than one statute says you have to notify the shipper. ]

ONLY in the case it is NOT going to a license holder.

You want to post the one you're talking about, that I've apparently never seen?

I have posted the only two pertinent ones I can find any number of times.

- OS

[MikePapa1]

With all due respect, Robo, I have read the statute and have violated no law. So long as it is lawful for my son to receive the rifle, it is lawful to loan it to him. Now, a hand gun is clearly different, but for long guns loans to lawful persons for lawful purposes for temporary periods is perfectly permissible.

Edited December 6, 2010 by MikePapa1
Corrected iPhone's automatic spelling

[DaveTN]

ONLY in the case it is NOT going to a license holder.

You want to post the one you're talking about, that I've apparently never seen?

I have posted the only two pertinent ones I can find any number of times.

- OS

It’s one of those issues that I was talking about earlier where an individual needs to do whatever they are ready to take responsibility for. I believe Federal Law requires you to notify the shipper when shipping a firearm; I could be wrong. At the very least UPS policy requires it. Therefore, I will do that and if they decline to ship… so be it. I just don’t care enough to be a test case.

Someone on this board got caught intentionally mismarking a gun shipment by UPS. If I remember correctly UPS didn’t notify any LE agency, but maybe they can chime in and say what UPS had to say.

[Oh Shoot]

It’s one of those issues that I was talking about earlier where an individual needs to do whatever they are ready to take responsibility for. I believe Federal Law requires you to notify the shipper when shipping a firearm; I could be wrong.

From 18 U.S.C. § 922 : US Code - Section 922: Unlawful acts

(e) It shall be unlawful for any person knowingly to deliver or cause to be delivered to any common or contract carrier for transportation or shipment in interstate or foreign commerce, to persons other than licensed importers, licensed manufacturers, licensed dealers, or licensed collectors, any package or other container in which there is any firearm or ammunition without written notice to the carrier that such firearm or ammunition is being transported or shipped;

At the very least UPS policy requires it. ...... Someone on this board got caught intentionally mismarking a gun shipment by UPS. If I remember correctly UPS didn’t notify any LE agency, but maybe they can chime in and say what UPS had to say.

Yes, UPS and FedEx policy requires it. (I don't think USPS for long guns does, however, could be wrong). I guess UPS could notify LE but what could come of it since it's not against the law, unless it were an illegal weapon of some sort. At any rate, the main risk of UPS/FedEx finding out there is an "undeclared" weapon at some time before delivery is (1)They kick it out of system and send it back to you or (2)if lost or stolen, they wouldn't pay off on claim since you didn't follow policy.

I used to regularly get handguns when I was FedEx Ground guy going to repair facility on my route. (You aren't supposed to ship handguns via Ground, either FedEx or UPS). I would usually open the box to see. I of course didn't care one way or the other, but the facility was in a bad place that I usually lost money on to deliver there,so I'd kick it back, and it would (eventually) get back to the shipper. There was never any question that it was an illegal act, just against policy.

Thus my point is that it is NOT against the law as BATF suggests, only against some carrier policy, and depending on the nature of the shipment, a policy one might be willing to ignore just to get the damn thing sent.

- OS

Edited December 6, 2010 by OhShoot

[mac12]

I just revisited this thread and wanted to let everyone know that has read it what I did.  I carried the handgun to Texas and we had a FFL transfer it to my son.  It was Christmas time anyway so we had a nice visit.  

[KahrMan]

Holy thread resurrection Batman

[Chucktshoes]