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Problems with Interstate Firearms Transfers

July 20, 2010 Federal Firearms Laws, Firearms Transfers Comments Off

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.

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Purchasing a Firearm at 19…

January 21, 2010 Firearms Transfers, State Firearms Laws Comments Off

Question: How can I legally get a pistol if I’m 19 years old?

Answer: Under Arizona law, you can legally purchase a firearm at age 18.  Under Federal law you cannot purchase a firearm from a federally licensed firearms dealer until you are 21 years old.  That means that the only way you can purchase is from a private party.  Private party transfers may occur between individuals in Arizona as long as both the buyer and seller are at least 18 years of age, the transfer is done ‘face to face’ and both parties are Arizona residents.  I do recommend that you get a bill of sale to insure there is a record of the transaction.  I also recommend that at the very least you either examine or record the drivers license information of the seller.

This is really the only way you can acquire a gun unless someone gives it to you as a gift or you inherit it from a parent or grandparent.

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Transfering a Firearm after the Death of a Family Member

December 29, 2009 Firearms Transfers Comments Off

Question:  My Dad is ill in New York and has a pistol permit there.  If something happens to him, how do I get the handgun back to Arizona.  I have a CCW here in Arizona.

Answer:  Under federal law you would normally be required to transfer the firearm using a federally licensed firearms dealer.  One of the few exceptions to that law is when a firearm is handed down from parent to child or grandparent to grandchild as either a bequest or as part of an estate when the parent or grandparent dies.  Under this specific circumstance, the firearm may simply be taken by the child or grandchild and transported home directly or via a common carrier like FedEx or UPS.  You cannot send a firearm via US Mail unless it is a rifle or shotgun.  Handguns may not be sent via US Postal Service.

You would generally want to ship it to yourself in care of a licensed firearms dealer where you live.  Both FedEx and UPS require that the firearm be sent via Next Day service.  Their intention is to limit the amount of time the package is in transit to reduce the likelihood of pilfering.  Additional there must be no markings on the outside of the package that would indicate that the package contained a firearm.

FedEx requires that the firearm be ‘non-operational’ in that either the firing pin is removed or the gun is disassembled to the point that it cannot be made operational.

Both FexEx and UPS will only accept shipments made to a licensed firearm dealer, licensed manufacturer, licensed importer or licensed collector.

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Legal Age to Purchase or Possess Firearms in Arizona…

November 16, 2009 Federal Firearms Laws, Firearms Transfers, Legal Issues Comments Off

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
(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.

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Transfer of Firearms Between Family Members Living in Texas and California

Question:  I am a Texas resident, visiting my father in California. I would like to take back two 22-caliber rifles, one very old .410 shotgun, and possibly an air powered bb gun to Texas.  My vehicle is a crossover SUV and there is not trunk.  It has been a long time since I lived in California, laws have changed, and I know nothing about Arizona and New Mexico.  There are numerous border patrol checkpoints along my route and I have little doubt that with a load of other things in the back of my car, probably covered by a blanket, my probabilities of being stopped are above average.  Is it legal to transport these guns in California, New Mexico and Arizona, and do I need to take any special steps to insure I am in compliance with various state laws.  Thank you.

Answer: Right off the bat, you should understand that you cannot legally drive from Texas to California and as a Texas resident acquire a firearm and transport it back to Texas.  By doing so you would be in violation of Federal law.  It does not matter that the transfer is occurring between family members.  The only way that Federal law would allow what you propose would be if you were taking possession of the firearm if they had been left to you by your father’s estate.  Since he is still alive, that doesn’t work.

To keep it legal you would need to transfer the firearms through a Federally licensed firearms dealer.  You can have your father ship them from California to a firearms dealer in Texas, who would then transfer them to you in compliance with Texas law.  This would only apply to the actual firearms, not the BB gun.

In terms of the laws regarding transportation, only California is restrictive in terms of transport.  You would need to have the unloaded firearm in a locked container or case as long as you were in California.  In Arizona you may legally transport a loaded long gun in plain view or in a case.  In New Mexico you may transport a firearm in any condition (unloaded or loaded) openly or concealed anywhere in your vehicle.

I know this seems like a difficult process, but with very limited exceptions, Federal law has been designed to make any interstate transfer of a firearm possible only through a Federally licensed firearms dealer.

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Transporting a Handgun Across State Lines…

September 2, 2009 AZ CCW Laws, Firearms Transfers, Vehicle Carry Comments Off

Question: I am buying a handgun from a friend in Denver and have to carry it back to Orlando.  I have a Dodge 1500 with a jump seat in the middle of two buckets.  I use the top side of the jump seat as a rest or table when necessary and want to use the area under the jump seat as my weapon storage.  I have another friend that is going to put a biometric opening device on the dash in the form of a thumb reader which will unlock the mag locks.  Once the mag lock is disengaged I will have to lift the seat to access the weapon. Is this in compliance with the two step rule?

Answer: By now you have probably already purchased the handgun and transported it back.  Unfortunately, to be legal, a transfer between residents of two different states must be handled through a Federal Firearms Dealer or FFL.  Private transfers between residents of two different states is prohibited by Federal law.  If you haven’t already done the transaction, you can find a summary of how you should transfer the firearm at the following link: http://www.arizonaccwguide.com/2008/08/28/firearms-transfers-how-to-do-it-right/

If you have already done the transfer, don’t tell the BATF.  ;-)

With respect to transporting the firearm, the ‘two step’ rule that you refer to really only applies in Arizona.  Each state has different laws regarding legally transporting a firearm.  Some, like Texas, are very relaxed about it.  Others are much more restrictive.

To insure that you don’t have any issues, you should transport the firearm in an unloaded and cased condition.  If you have the firearm unloaded and cased and in the storage area under the jump seat, that will be fine in virtually every state you might travel through.  If the firearm is loaded and uncased, you need to check the laws of each individual state that you will travel through to make sure you are not violating any laws.  A really good reference for this is a book called “The Firearms Laws of the 50 States” by J. Scott Kappas.  He has done a great job of summarizing all of the relevant concealed carry and transportation laws in a single source.

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Handgun Ownership by Arizona "Snowbirds"…

Question: I am a Canadian “snowbird”.  I live in Arizona for about 5 months out of the year but I am a Canadian citizen – not an American citizen.  I do not have a green card.  Can I legally purchase a hand gun in Arizona and leave it in my Arizona condo when I return to Canada?

Answer: Unfortunately, only resident aliens and US citizens are allowed to purchase firearms.  Since you are here most likely here on a non-resident visa, you cannot legally purchase or possess a firearm in the United States, which would also include Arizona.  Possession of a firearm by a non-resident alien is a felony crime.  It is also a felony for anyone to provide you with a firearm by either giving it to you or selling it to you.

Should you decide to visit a shooting range that rents firearms, you are OK as you are just using a firearm owned by another while you are at the range.

Sorry I don’t have better news for you.

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Interstate Transfer of Firearms When the Recipient is Under 21…

April 11, 2009 Federal Firearms Laws, Firearms Transfers, Legal Issues Comments Off

Question: My Father wants to sign my guns over to me since I’m living in Arizona but I’m under 21.  I know its legal for me to own a handgun here in Arizona, but I am unclear on how or if I could buy them from him since he is living in California.  I went to one gun dealer and they said all he has to do is give them to me but we don’t want to get in any trouble since they are registered to him in California.  So is there a way we can do this or is not not possible?

Answer:  I’m glad you didn’t listen to the gun dealer.  Under Title 18, Part I, Chapter 44, Section 922, Paragraph  it is illegal “for any person to transfer, sell, trade, give, transport or deliver any firearm to any person other than a licensed dealer, who the transferor knows or has reasonable cause to believe does not reside in the State where the transferor resides; except that this paragraph shall not apply to:  a) the transfer transportation, or deliver of a firearm made to carry out the bequest of a firearm to, or an acquisition be 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 purpose.

The gun dealer you talked to probably is confused about the law, which because of its complexity is understandable.  If your father died and left the guns to you in his will, it would be perfectly legal for you to take them and bring them home with you.  Since your father is still very much alive, that part of the law does not apply.

The short version is this.  Under normal circumstances, you could legally transfer the firearm through a federally licensed firearms dealer.  The problem is that you are not 21 years old.  Federally licensed firearms dealers are not permitted to sell or transfer firearms to anyone under the age of 21.  While you can legally own a firearm at age 18 in Arizona, the only way you can acquire one is through a private party transfer with another Arizona resident.

Based on my understanding of the law, I don’t see any way you can legally transfer the firearms from your father to you until you turn 21.

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Private Purchase of a Firearm After Negative Background Check

March 7, 2009 Firearms Transfers Comments Off

Question: I am 65 years old,I filled out a background check application approximately February 15th 2009 for purchase of a new pistol and was refused approval. Although I do have 3 adult criminal violations the last being approximately 30 years ago.  I was found not guilty / acquitted on one charge, charges dropped on another and plead guilty on one which sentence was set aside, put on a probation period and payed restitution.  How ever none of the charges pertained to any questions on the background check and none of the background check questions pertained to me but results came back negative on approval.  First do you believe my second amendment rights were violated, second even though background check came back negative would I be in violation of any law that you know of if I purchased a firearm from a private seller where I do not have to go through a background check?

Answer: First, let me state right up front that since I am not a lawyer, I cannot give you legal advice.  If you need legal advice, you would need to hire an attorney.  With that out of the way, let me address your questions.  First, when you purchase a firearm from a federally licensed dealer, they need to run your information through NICS to see if there is anything in your background that makes you a ‘prohibited possessor’ and therefore ineligible to own or purchase a firearm.

The entire list is fairly lengthy, but the short version is that you cannot have ever been convicted of a felony crime or any misdemeanor domestic violence offense.  Since you didn’t give me any information on your three violations, I have no way of knowing if one of them fell into the category of a felony or domestic violence arrest and conviction.  If there was a felony or domestic violence arrest but no conviction, you may have been denied based on the arrest record.  If you did not provide a social security number on the BATF 4473, it is also possible that there is someone that has a similar name and physical description that has a criminal background could have been mistakenly thought to be you.

Persons who are denied by NICS can request the reason for their denial.  To file an appeal, you must first have the NTN (transaction number) for the original request.  The gun dealer where you tried to buy the firearm has to maintain this information and can provide it to you.  You can fax in the appeal to 888-550-6427 or send it regular mail to:

FBI Criminal Justice Information Services Division, NICS Section, Appeal Services Team, PO Box 4278, Clarksburg, W. VA., 26302-9922

You can also get additional information on the appeal process including appeal forms at the following website:  http://www.fbi.gov/hq/cjisd/nics/index.htm

Regarding your second question, if you are a prohibited possessor and you attempt to purchase a firearm via a private party transaction, you would be in violation of federal law as well as Arizona state law.  Both violations are felony offenses with significant criminal penalties.  If the person who sells you the gun is aware that you are prohibited from owning a firearm, they would be guilty of a felony crime as well.

My recommendation to you is to find out why you were denied in the first place.  If there was no conviction and you have the court records to prove it, they can change the information in the record to reflect that.  I would not suggest that you attempt to purchase a firearm privately until you get this resolved.  You could be creating very serious legal consequences for yourself that would turn you into a true ‘prohibited possessor’.

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Questions on Private Handgun Sales in Arizona

March 3, 2009 Federal Firearms Laws, Firearms Transfers Comments Off

Question:  Adult over 21 with no criminal back ground.  I recently purchased a hand gun through a private sale, face to face from a co-worker both residents of AZ, and over 21. With a third party witness.  Any problems with this.  Is a bill of sale required by law? Is registration of the firearm required by law?  In regards to the private sale of handguns, shotguns, or rifles in the State of AZ.  What is required by law for an adult over 21 years of age for the private sector purchase or transfer of firearms in regards to written documentation, if any?

Answer: It looks like you covered all your bases.  In Arizona it is perfectly legal to do a private sale of either a handgun or a long gun as long as the transaction is done face-to-face between two Arizona residents.  Actually the age minimum is 18 years of age for  a private transaction.  You must be 21 to buy a firearm from a federally licensed dealer.  There is no witness or bill of sale required, but both are a good idea.  A bill of sale provides a written record of the transaction.  I would recommend a bill of sale in ANY private transaction, whether or not it involves firearms.  The fact that you had someone witness the transaction is not bad, but not required either.

In Arizona, there is NO firearms registration.  Most people confuse the BATF 4473 form they complete when purchasing a firearm from a federally licensed dealer as ‘registration’.  Actually it is just a record of the transfer, much like the bill of sale that I would recommend for a private party transfer.  The BATF 4473 requires the purchaser to provide personal identifying information and certify that they are not a ‘prohibited possessor’ under federal law.  In Arizona, someone purchasing a handgun from a federally licensed dealer must also either present a valid CCW and photo ID, or undergo an instant background check through the NICS system.

You do not need to do anything else regarding your transaction.  I would only recommend that in the future you get a bill of sale to provide a written record of the transaction.

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