Legality in question

[Guest Keal G Seo]

Ok so I know this sound like a SWIM situation but it really is and I don't want to see them get into trouble.

 

This SWIM is going out of their state to purchase a handgun F2F with an individual. I know an FFL can't sell a handgun to someone from out of state. Does that apply to private sales too? Is there anything that would bypass those laws for military personnel similar to housing leasing bypasses because of how much military families move?

 

Let's say it is still illegal, who would be charged there? The seller or both?

 

Thanks

[Guest bkelm18]

No idea what SWIM is.

 

For military personnel, I believe you can buy a handgun in either your home of record state or the state in which you are stationed. I don't know if that applies to private transactions. Otherwise, it is illegal for a person to purchase through a private transaction a firearm from a person that is a resident of a different state.

[GlockSpock]

SWIM: Someone who isn't me

 

I know that in my law class at UTC we briefly talked about a case in which some feds were using some sort of classifieds system to inquire about gun purchases. In one instance they found a guy in TN (I believe) and pressured him into meeting them in Georgia to sell them a gun. He eventually gave in to the peer pressure and met them. They attempted to bring charges against him but he got a good lawyer and it was concluded that the feds entrapped him by convincing him to do something he normally would not have done.

 

Besides that, all I have to say is that it is illegal to do any out of state firearm transfer unless you go through an FFL. There are maybe a few exceptions, such as the military personal one. 

 

 

 

Let's say it is still illegal, who would be charged there? The seller or both?

Possibly both. I would say steer clear away from such a deal. OR...go through an FFL. If you were to gamble on "not getting caught" and got caught, $30 for an FFL would be a lot lot cheaper than a good lawyer and any fines, and 20 minutes at an FFL are a whole lot easier than the many days involved with legal issues.

Edited December 14, 2012 by CZ9MM

[TMF]

Even if the individual is military he would still have to reside in the state where the buyer/seller lives, he just wouldn't require a state issued ID. For example, if the seller is stationed at Ft Campbell and resides in KY, it would be illegal for him to sell to a TN resident and vice versa. Unless, of course, the Servicemember's home of record was TN and he still had a valid state issued ID.

[RobertNashville]

Okay...I'll ask the dumb question...why go through the hassle and possible serious criminal charges when all that has to be done is have an FFL in the seller's state ship the weapon to an FFL in the buyer's state?

 

Am I missing something here?

 

I know it's a hassle and it will cost a little bit but it's better than jail time. ;)

Edited December 14, 2012 by RobertNashville

[TNWNGR]

There’s always going to be individuals who willfully ignore laws pertaining to firearms transactions. Sometimes someone gets caught, most of the time nothing ever happens and thus risk is minimal.   

[Smith]

Even if the individual is military he would still have to reside in the state where the buyer/seller lives, he just wouldn't require a state issued ID. For example, if the seller is stationed at Ft Campbell and resides in KY, it would be illegal for him to sell to a TN resident and vice versa. Unless, of course, the Servicemember's home of record was TN and he still had a valid state issued ID.

NOt exactly. FT. Cambell is kind quirky. They have dual state residence. However, they have to have a copy of their station orders if they are not already residents of either KY or TN. Also, military can buy in the state they are stationed in even though their ID's are from another state, if they produce their station orders.

As to the OP both would be in trouble and they would be breaking federal laws not just state laws. Big NO-NO's. There is no military exemption except what stated above. Edited December 14, 2012 by Smith

[Guest Keal G Seo]

Thanks guys, I finally talked him out of it with the help of the consensus here. He just thought it was too good of a deal to pass up, my main argument against it. "If it sounds too good, it usually is."

[TMF]

NOt exactly. FT. Cambell is kind quirky. They have dual state residence. However, they have to have a copy of their station orders if they are not already residents of either KY or TN. Also, military can buy in the state they are stationed in even though their ID's are from another state, if they produce their station orders.
.

No, you don't have dual residency. Having been stationed at Ft Campbell for 8 years I became somewhat familiar with the laws. I resided on the TN side of the border, which meant that when I purchased a firearm I had to produce BOTH orders and proof of residency, such as a power bill without the requirement of a state issued ID from TN. Now, had I resided on the KY, all I would require was my orders. In theory I could have purchased weapons in KY since my orders specified my duty station being in the state of KY, although it would have been treading on breaking te law, but if I was residing in KY and purchased a firearm from a private seller in TN it would be a very clear cut illegal act.

[Patton]

Yeah to my understanding with Ft Campbell you have your original state of residency that your DL shows and the state of which you orders are. If your housing area is TN But orders are KY you still have KY and you original state of residency unless it's been changed to TN.
Selling a firearm to a non FFL person with different residency is a Class E Felony. Edited December 14, 2012 by Patton

[Oh Shoot]

.....Let's say it is still illegal, who would be charged there? The seller or both?

 

Both. Separate paragraphs in 18 U.S.C. § 922 make private interstate transactions illegal from both parties.

 

Didn't comment otherwise because I don't understand the military legal residency thing. Still don't for sure. :)

 

- OS

[c.a.willard]

Actual if your stationed at Campbell you can purchase in up to 3 states.  KY with orders.  TN if you live there (easiest method is use TN fishing license at the FFL  or other proof of residency) and your state of residence.  For example for a while i had an Indiana license, lived in Tennessee , and stationed at Campbell.

[Patton]

I was informed either your living in TN or your original state of residence and not both. Your units address is the only addition whether it is TN or most likely KY.

[Oh Shoot]

I was informed either your living in TN or your original state of residence and not both. Your units address is the only addition whether it is TN or most likely KY.

 

Here's what directions to FFL for 4473 says:

 

"If the buyer is a member of the Armed Forces on active duty acquiring a firearm in the State where his or her permanent duty station is located, but does not reside at his or her permanent duty station, the buyer must list both his or her permanent duty station address and his or her residence address in response to question 2."

 

- OS

[TMF]

I was informed either your living in TN or your original state of residence and not both. Your units address is the only addition whether it is TN or most likely KY.

Rog, if you are stationed at Campbell yet reside in TN you can take your orders into KY and purchase from any FFL, however, this may be treading thin.

Now, if you are stationed at Campbell and reside in KY, you would be committing a crime by purchasing in TN since you aren't a resident and your orders take you to KY, you would be committing a crime by conducting a transfer, even if you purchase through an FFL. Pulling the wool over the eyes of the FFL with TN fishing license doesn't mean you're not committing a crime.

[Patton]

That's exactly the way it was explained to me TMF.

[c.a.willard]

Your not committing a crime if you live in Kentucky and are stationed at Campbell and buy in TN.  The law says the state in which your duty station is located.  Fort Campbell is located in both states.  It has a Kentucky address just for simplicity of mailing purposes  at one point in time it was actually Camp Campbell TN however since the post office was in KY it created serious mail issues  and the war department changed to to Camp Campbell Ky.  However the laws for FFL's do not use zip codes its about geographic location.  Fort Campbell is located in TN just as much as it is KY. 

 

In addition to those two states you can also purchase in your home of record. as i said before up to 3 states

[c.a.willard]

Also FYI the fishing license was the recommendation of the FFL in TN that i purchased from.  Another indicator that FT Campbell is also part of Tennessee is that on the TN side of post TCA is enforced while on the KY side it is the KRS. 

Edited December 15, 2012 by c.a.willard

[TMF]

Your not committing a crime if you live in Kentucky and are stationed at Campbell and buy in TN. The law says the state in which your duty station is located. Fort Campbell is located in both states. It has a Kentucky address just for simplicity of mailing purposes at one point in time it was actually Camp Campbell TN however since the post office was in KY it created serious mail issues and the war department changed to to Camp Campbell Ky. However the laws for FFL's do not use zip codes its about geographic location. Fort Campbell is located in TN just as much as it is KY.

In addition to those two states you can also purchase in your home of record. as i said before up to 3 states

No, because your orders say Kentucky, not TN. The only thing that matters is what your orders say; beyond that, if you live on the TN side then you are a legal resident. That is the reason you only need your orders on the KY side but you need orders and a proof of residency on the TN side. Edited December 15, 2012 by TMF

[c.a.willard]

We will just have to respectfully disagree, my opinions are based of my reading of the law and information ive received through local FFL's.  I'm sure your opinion is formed from similar information just interpreted differently. 

Back on topic to the OP's question.  It stands to reason that if the out of state transfer is not the persons home of record they could both be charged

[TMF]

We will just have to respectfully disagree, my opinions are based of my reading of the law and information ive received through local FFL's. I'm sure your opinion is formed from similar information just interpreted differently.

I interpret the law to mean that you can't purchase or sell a firearm in a state that you are not a legal resident of or have military orders which specify that state. At any rate, I wouldn't test whether or not something is a felony based on a questionable interpretation of a law or gun shop banter with an FFL dealer. I'd have that in writing from the ATF since they are the folks who'd be investigating the crime.

[c.a.willard]

TMF,  I just sent an email to the ATF seeking clarification.  I will post their response here when they send one. 

[TMF]

TMF, I just sent an email to the ATF seeking clarification. I will post their response here when they send one.

Right on, I'd be curious to hear what they say. I've been living by understanding that HOR and state of current residency was the law. Even though I could get away with purchasing in KY, I never went to gunshops there due to this.

[alwaysonjohn]

to the OP, just tell him to go through a FFL in "his" current state to do the transfer and "he" will be fine.  If you do some sort of illegal transaction, find a cop to run the serial to make sure its not stolen (hopefully before you buy it).  The cop will need the make/model/serial/color for an accurate check.  Remember, if it is stolen, it will be confiscated and returned to the original complainant of the stolen item report and your friend will be out of a gun and money.

 

here are some sections to read up on:

http://www.atf.gov/firearms/faq/unlicensed-persons.html#gca-unlicensed-transfer

 

As TMF mentioned though: what is considered his "resident" state if he is military...

 

 

 

• Q: What constitutes residency in a State?

• The State of residence is the State in which an individual is present; the individual also must have an intention of making a home in that State. A member of the Armed Forces on active duty is a resident of the State in which his or her permanent duty station is located. If a member of the Armed Forces maintains a home in one State and the member’s permanent duty station is in a nearby State to which he or she commutes each day, then the member has two States of residence and may purchase a firearm in either the State where the duty station is located or the State where the home is maintained. An alien who is legally in the United States is considered to be a resident of a State only if the alien is residing in that State and has resided in that State continuously for a period of at least 90 days prior to the date of sale of the firearm. See also Item 5, “Sales to Aliens in the United States,” in the General Information section of this publication.

  [18 U.S.C. 921(b), 922(a) (3), and 922(b)(3), 27 CFR 478.11]

[c.a.willard]

Got a response back from the BATFE

 

"ATF is aware that the Ft. Campbell Army Base is physically located in two States. Given this unusual fact, under the Gun Control Act (GCA), a member of the Armed Forces who is stationed at Ft. Campbell Army Base would be considered a resident of both Kentucky and Tennessee regardless of the State in which the member maintained his or her residence. ATF has addressed this issue in the August 2004 FFL Newsletter.  Please see the Newsletter for further information:  http://www.atf.gov/publications/newsletters/ffl/ffl-newsletter-2004-08.pdf."

 

So that settles it Military stationed at FT Campbell can in fact buy in either state.

Edited December 23, 2012 by c.a.willard