U.S. House of Representatives Considering National Right to Carry Reciprocity Bill…

Problems with Interstate Firearms Transfers

Question:  I have bought a gun from an individual through Gunsamerica.( Gunsamerica is the broker).  I, the buyer live in Tennessee. The seller lives in Ohio.  I sent him a copy of the a local dealer’s FLL and a check for the gun. The local dealer requested a copy of the seller’s drivers license.   The seller shipped the gun to the dealer.  The dealer opened the package and found no drivers license.  The dealer called me and told me he is refusing to release the gun without the sellers drivers license.  I called the the seller and he said the dealer had no right to open the package without me being present and he does not have to give his DL information to the dealer.   Who is right?  What do I do?

Answer: Let me quickly outline to you the normal process by which a firearm is transferred from a resident of one state to a resident of another state using a federally licensed firearms dealer.

Basically, a non-federally licensed individual can ship a firearm via a common carrier (UPS or FedEx) to a federally licensed firearms dealer for transfer to a resident of the state where the dealer is located.  The dealer is required to insure that the transferred firearm is delivered to the purchaser in compliance with the laws of the state while the purchaser is located.  This includes the purchaser completing a BATF Form 4437 and undergoing an instant background check through the NICS system.  As a purchaser, you are required to show positive identification of your identity, generally a driver’s license.

There is NO legal requirement that the entity managing the transfer (your dealer) be in possession of a copy of the driver’s license of the person that sent you the gun.  This is clearly a company policy that your dealer has.  It is NOT required by federal law. However, since your dealer is also not required to do these kinds of transfers, most people try and keep the dealer’s happy by doing what they ask.

In this case, your seller does not want to release a copy of his drivers license.  In this age of identity theft, I can’t exactly blame him.

As far as the dealer opening the package without you being present, if it was mailed to the dealer and the dealer was the primary addressee, it would be considered their mail and they can open it.  If it was sent to you, care of the dealer, then the dealer should have waited and allowed you to open it at their shop.  All this is kind of beside the point though as none of this is really relevant to the discussion at hand.

Your choices are basically these:

1.  You can try and talk the seller into providing a copy of his license so that the dealer can feel like his backside is covered in case the source of the firearm is ever questioned.

2.  You can try to help the dealer understand the seller’s point about not wanting to provide his license.  Remind the dealer (nicely) that the law does NOT require them to have a copy of the seller’s id and they are only acting as a middleman in the transfer.  They are not taking possession of the gun but rather simply making a transfer to you.

3.  If neither #1 or #2 work, you can simply direct the dealer to return the firearm to the seller.  They will most likely make you pay the shipping.  Then I would tell the seller that you are returning the gun and want your money back, plus the additional shipping that you had to pay to return the gun.  If you sent a personal check, you can stop payment if you think he won’t return your money.

Right now, you are in the middle of a dispute between the seller and the dealer. They dealer is asking for something they are not legally required to have.  The seller could easily provide a copy of his driver’s license but won’t.  I would talk to the dealer first.  Be sure to talk to the owner or manager, not an employee.  They should try and work with you to keep you as a customer.  If that doesn’t work, try to persuade the seller to help you out.  Use the prospect of returning the gun as leverage.  Guns America should have a place for you to leave feedback about your experience with the seller.  You can always hold the prospect of negative feedback over them as well.

My suggestion during these discussion is to remember my Grandma’s old saying:  “You attract more flies with honey than you do with vinegar”.  If you are nice and appeal to their sense of trying to help you out, you might be more successful.

Good luck to you and consider buying locally in the future.  It is a lot less hassle.

Felony Conviction and Federal Home Protection Act

Question:  I am a felon and had to do a prison sentence.  My house was broke into twice while I was in bed asleep and both times I fled the home for my safety.  The police are telling me there is no true way to protect myself inside my home and that felons cannot possess a firearm to protect their home until five years after their release from prison.  I have had about eight people tell me that they have been to prison but under the 2009 Federal Home Protection Act that felons are now allowed to possess a firearm only in the home for protection.  I live in Texas.  Can you give me more insight on this and how I could get a copy of that act?

Answer: The Home Protection Act that you refer to has nothing to do with your ability to protect yourself in your home.  It deals with a different subject entirely.

As a convicted felon, you are a ‘prohibited possessor’ and not able to legally possess a firearm or ammo.  There are a couple of things I might suggest.  First, I’d do what I could to make your house more secure.  Install better locks, trim away excess shrubs outside, install outside lighting and in general do anything possible to make your house less attractive to a burglar.  Some people suggest getting a large dog that has a very loud bark.  Burglars do not like large, loud dogs.

If that is not possible based on your living situation, you might also consider keeping a baseball bat close at hand in your bedroom.  Many burglars will not be armed when they break in due to the enhanced penalties if they are caught and convicted.  If the person breaking in is a druggie or a gang member, they may be armed since they aren’t especially worried about enhanced penalties.

Finally, I would check with an attorney to see at what point you might be able to have your conviction set aside and have your record expunged.  This would permit you to petition the court to restore your civil rights, including your right to own a firearm.  This only works if your felony conviction is for a non-violent offense or a non-sexual offense.  If your felony conviction involved serious injury or death to another person or was for a sexual crime, that option is a non-starter.

Firearms Owner Living With a Convicted Felon

Question:  Can a husband legally own a firearm in their home if it is locked in a safe that the spouse doesn’t have the combination to?  The wife is a convicted felon in Colorado.

Answer: In order to receive a truly authoritative answer, you should contact a licensed attorney in Colorado and seek legal advice.  In order to try and help you out, I will give you my informed opinion.

If the firearms are stored in such a way that the convicted felon has absolutely no access, most jurisdictions agree that this is acceptable.  The question becomes more murky if there is any possibility of access at all.

Let’s say that you have the guns in a safe and the wife does not know the combination.  That should be OK.  Now let’s say that you have the combination recorded in a computerized address book and that your wife has access to the computer.  Now there is a case that could be made for what is referred to as ‘constructive possession’ on the part of the wife since she has the means to open the safe and get the guns.  From a legal standpoint, that could cause both you and your wife a problem.

You can solve the problem by either not writing down the combination or by putting the combination somewhere where the wife has absolutely no access to it…

I would also suggest that you consider looking into the process of expunging or ‘setting aside’ the conviction as soon as it might be possible to do that.  That would restore your wife’s citizenship rights and rights to own a firearm making this entire problem go away.  Most states have a process to expunge a conviction as long as the felony was not a violent one or as long as the felony was not ‘sex crime related’.

Scope of the LEOSA Act regarding Concealed Carry by Law Enforcement

Question: Under the Law Enforcement Officers Safety Act thatsexempts qualified active and retired law enforcement officers from many local and State provisions regarding concealed carry, are there any there any state or local police depts that still will not honor it. I plan to drive from SC to NY and need to know.

Answer: If a person is covered by the LEOSA, then “notwithstanding any other provision of the law of any State or any political subdivision thereof,” he or she may carry a concealed firearm in any state or political subdivision thereof. See Title 18, USC, Section 921, which defines “state” to also include the District of Columbia, Puerto Rico and U.S. Possessions. Thus, the LEOSA-qualified person does not generally require a state-issued CCW permit to carry a concealed firearm.

However, there are two types of state laws that are not overridden by the federal law, these being “the laws of any State that (1) permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or (2) prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.” This does not mean that LEOSA-qualified persons are prohibited from carrying concealed firearms in such areas, but only that they must obey whatever state laws apply on those two points. They are free to disregard all other state and local laws that govern the carrying of concealed firearms.

The LEOSA overrides state and local laws, but not other federal laws.  LEOSA-qualified individuals must continue to obey federal laws and agency policies that restrict the carrying of concealed firearms in certain federal buildings and lands.

Whether or not a person is covered by the LEOSA depends entirely on whether or not he or she meets the definitions in the federal law for either “qualified law enforcement officer” or “qualified retired law enforcement officer.” It does not matter whether or not a given individual is defined as a “law enforcement officer” under the law of his state; only the definition in the federal law applies.

Can a part year Arizona resident do a face to face transfer?

Question:  If I purchase a gun from a private seller in Arizona and my drivers license in from Nevada and I live seasonally in Arizona, is it legal?

Answer: Under the letter of the law, you may not engage in a face to face transfer in Arizona.  Since you maintain your official resident status in Nevada, where you have your license, you are not considered to be an Arizona resident.  Under AZ law, face to face transfers may only occur between two Arizona residents.  Since your are technically a Nevada resident, you would need to send the gun to a federally licensed firearms dealer in Nevada who would transfer the firearm to you in compliance with Nevada law.

Legal Age to Purchase or Possess Firearms in Arizona…

Question: Can you tell me the specific ARS law in which it tells you specifics about what ages at which you can buy a handgun or shotgun or any type of gun?  I have been googling binging yahooing and I can’t seem to find it.  I don’t want to be misinformed and would like to read the specific laws about it.  I found your page after hours of looking. Thank you for your help.

Answer: Part of the reason you were having trouble finding the information is because of the way the laws are written regarding age limits on firearms in Arizona.  While you might expect there to be an affirmative statement (you must be X age to buy a rifle, etc.), the law is written in such a way as to exclude people of certain ages from owning certain types of guns.  For example, under ARS 13-3111, the law state that except under certain conditions, that anyone under the age of 18 who is not accompanied by a parent, grandparent, legal guardian or firearms instructor acting with the consent of said parent, grandparent or legal guardian may not carry or possess a firearm.  By definition, that means that anyone who is over the age of 18 and not otherwise prohibited from owning or possessing a firearm may do so.

Federal law provides that in order to purchase a firearm from a federally licensed firearms dealer, a person must be at least 21 years of age and meet the federal and state legal requirements to own a firearm which include, not being a prohibited possessor under state or federal law, be a resident of the state where they are purchasing a firearm, provide proof of age and identity, submit to a criminal background check and meet any other requirements set for by the state for firearms purchases.

Under Arizona law, prohibited possessor are defined in ARS 13-3101 which states:

7. “Prohibited possessor” means any person:

(a) Who has been found to constitute a danger to himself or to others or to be persistently or acutely disabled or gravely disabled pursuant to court order under section 36-540, and whose right to possess a firearm has not been restored pursuant to section 13-925.

(b) Who has been convicted within or without this state of a felony or who has been adjudicated delinquent for a felony and whose civil right to possess or carry a gun or firearm has not been restored.

(c) Who is at the time of possession serving a term of imprisonment in any correctional or detention facility.

(d) Who is at the time of possession serving a term of probation pursuant to a conviction for a domestic violence offense as defined in section 13-3601 or a felony offense, parole, community supervision, work furlough, home arrest or release on any other basis or who is serving a term of probation or parole pursuant to the interstate compact under title 31, chapter 3, article 4.

(e) Who is an undocumented alien or a nonimmigrant alien traveling with or without documentation in this state for business or pleasure or who is studying in this state and who maintains a foreign residence abroad. This subdivision does not apply to:

(i) Nonimmigrant aliens who possess a valid hunting license or permit that is lawfully issued by a state in the United States.

(ii) Nonimmigrant aliens who enter the United States to participate in a competitive target shooting event or to display firearms at a sports or hunting trade show that is sponsored by a national, state or local firearms trade organization devoted to the competitive use or other sporting use of firearms.

(iii) Certain diplomats.

(iv) Officials of foreign governments or distinguished foreign visitors who are designated by the United States department of state.

(v) Persons who have received a waiver from the United States attorney general.

The definition of a prohibited possessor under Federal law is found in the Gun Control Act of 1968, and was later amended under what is generally referred to as the “Laudenberg Amendment”.

The Gun Control Act of 1968 is actually Chapter 44 of Title 18 of the US Code which defines a prohibited possessor as follows:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) has been adjudicated as a mental defective or has been committed to any mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a non-immigrant visa
(6) who [2] has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
(B)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) has been convicted in any court of a misdemeanor crime of domestic violence.

So the way that it works is that the laws defines who cannot be in possession of a firearm as opposed to saying who can.  The presumption is that if the prohibitions DON’T apply, a person can legally purchase or possess a firearm.

To explicitly answer the age question, here is the breakdown for Arizona:

Handgun – 18 years of age to possess or purchase via private party transaction, 21 years of age to purchase from a federally licensed firearms dealer.

Rifle or Shotgun – 18 years of age to possess or purchase via private party transaction, 21 years of age to purchase from a federally licensed firearms dealer.

Private Party Firearm Sales to Non-Residents

Question:  I am a Texas resident, but working in Utah.  I purchased 2 firearms while in Utah.  I am going back to Texas, but have to drive through Arizona, and New Mexico.   What are the laws for those particular states regarding transporting firearms through them?

Answer:  Thanks for your question.  While I’m sure you have no intent to do this, if you drive home with those two firearms you bought, you are actually violating Federal law.

Federal law provides that a face to face transfer of a firearm can only occur between residents of the same state if such transactions are permitted by state law.  If you are not a resident of Utah, but in fact are a resident of Texas, you should not have been able to purchase firearms from a licensed dealer without them shipping those firearms to an FFL in Texas.  Assuming you bought them from a private party, again they can only be legally transferred through an FFL since you are not a Utah resident.

The deal here is that the Feds want any person buying a firearm in ‘interstate commerce’ to be legally allowed to own a firearm in their state of residence.  The only way they can do that is by transferring them through an FFL that is in the state of residence of the purchaser.

Because many are ignorant of the law, they find themselves in the same situation that you do now.  Will you get caught?  Most probably not as long as you are a law-abiding person and don’t do anything illegal or to draw attention to the fact that you have the guns, but it will make it more difficult to establish your legal ownership of the guns.  Any bill of sale that you might have received would be evidence of your violation of Federal law.

To answer your more specific question, you can legally transport your firearm in Arizona as long as it is plain sight in the vehicle in any condition you wish.  In New Mexico, you can carry your firearm in any condition either concealed or openly in your vehicle. My recommendation would probably be to keep them unloaded and cased in the trunk or storage compartment as this is universally permitted under Federal law.  The exception to this would be any firearm that you would wish to carry for personal defense.  That one I would probably keep handy.

Can I get an AZ CCW Permit with an Expunged Domestic Violence Conviction in Arizona?

Question:  I plead guilty to disorderly conduct (domestic violence) in 2005 and was given 36 months unsupervised probation. One year after my probation ended I requested the judgment be dismissed and set-aside, which the court and Judge agreed and issued a dismissal.  Can I now legally own a weapon and apply for my CCW which was surrendered in 2005?

Answer: Unfortunately, the answer is “no”.  Here is the issue.  Under the Domestic Violence Gun Ban Act passed by Congress in 1996, a person that has been convicted of a domestic violence offense cannot legally possess a firearm or ammunition.  In order to restore a person’s right to own a firearm under this law, the state court must “set-aside” or “expunged” the conviction and explicitly restore the person’s right to own a firearm.

Unfortunately, while a process exists to do this for person’s convicted of a felony offense whose convictions have been “set aside” or “expunged”, a similar process does not exist for persons convicted of a misdemeanor crime in Arizona.  When the Arizona legislature wrote the law relating to setting aside misdemeanor convictions, the Domestic Violence Gun Ban Act did not exist.  The Arizona legislature did not anticipate the passage of a federal law that would narrowly define the process of setting aside misdemeanor convictions.  Since all other misdemeanors besides a domestic violence conviction do not result in the loss of gun ownership rights, there was no provision made in the law to restore the right to own a firearm when setting aside a misdemeanor conviction.

Therefore in Arizona and numerous other states, there is a “Catch 22″.  There is no mechanism to restore firearm rights when setting aside a misdemeanor conviction and the federal law in question requires that states explicitly restore the right to own a firearm when setting aside a misdemeanor conviction for domestic violence in order for the federal law not to apply.

To summarize, a convicted felon can have their case set-aside or expunged, have their right to own a firearm restore and then can buy a gun or get an Arizona CCW permit.  However, someone who has been convicted of a misdemeanor domestic violence offense has lost their right to own a firearm or get an AZ CCW permit forever, even if the charge has been set-aside or expunged.  Fair?  No, not at all.  But then laws are not always fair, are they?  The solution?  Contact your Arizona legislator and ask them to fix this law.

Domestic Violence, Firearms Ownership and Concealed Carry…

Question:  What is the least costly way can I find out if I am allowed to carry a gun?  I know I have never been charged with a felony, however in the mid 90′s I did get into a physical altercatiojn with a familiy member and I think, but i’m not sure if I was charged with domestic violence…..

Answer: If you were simply arrested for a domestic violence offense, that is not sufficient cause to prohibit you from owning or carrying a firearm.  You would have had to go to court and be convicted of a crime of domestic violence.  If you did go to court, or your lawyer went for you, you would have received some final determination by the court.

You can determine if you were convicted of a domestic violence charge from the original court paperwork you received.  At the end of your case, you should have gotten some paperwork outlining exactly what charges you were convicted of and what your penalty was.  If you plead guilty or “no contest” to a charge of domestic violence, your right to own a firearm would be revoked and you cannot legally own or possess a firearm, possess ammunition or get an Arizona CCW permit.

The law that makes this prohibition is referred to as the “Lautenberg Amendment”.  The law is more properly referred to as the “Domestic Offender Gun Ban”.  Enacted in 1996, the law bans ownership and use of guns or ammunition by any individual convicted of a misdemeanor or felony domestic violence offense or any person who is under a restraining order for domestic abuse.  The law also makes it illegal to knowingly sell or give a firearm or ammunition to such a person.

If you were never actually convicted of a domestic violence offense and have no felony convictions, you can legally own a firearm and if you meet the requirements, you can obtain an AZ CCW permit as well.