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    Privately selling a firearm to....

    I had a disagreement with a gentlemen at the gun show today who was selling a handgun to a guy from Ohio. He was just a guy there selling, he didn't have a FFL or anything. He asked the man for I.D. Before he would sell him the pk380, and the guy gave it to him. He told the man he couldn't sell it to him because of state law. I entered the conversation and asked what statute says he can't sell a firearm privately to a man from Ohio and he couldn't tell me. He mentioned a few things about federal law, and I informed him that what he was saying only applied to a FFL, however he still didn't sell the firearm to the man. So...

    Am I wrong?, is there a law that says you can't privately sell a firearm to someone from another state? There is no law in Ky that says you must ask someone for I.D. Before you can sell them a gun, so how could you even know they was from a different state if you just asked if they was 18 or over, handed them the gun, got your money, and went on your way? Anyone?

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    It is illegal to transfer a handgun to another who does not live in the same state without using a FFL in the receiver's home state.

    http://www.atf.gov/firearms/faq/unli...ensed-transfer

    A person may only acquire a firearm within the person’s own State, except that he or she may purchase or otherwise acquire a rifle or shotgun, in person, at a licensee’s premises in any State, provided the sale complies with State laws applicable in the State of sale and the State where the purchaser resides. A person may borrow or rent a firearm in any State for temporary use for lawful sporting purposes.

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

    So yes, the other guy was correct and you were incorrect.
    Last edited by flb_78; 03-03-2012 at 02:35 PM.

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    The unconstitutional federal regulation does exist, as pointed out above. But, as you mention, there is no duty to ask for ID when selling a weapon. It seems to me that "Are you legally able to purchase this handgun?" is the only question that needs to be asked. Put the onus onto the buyer.

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    Quote Originally Posted by flb_78 View Post
    It is illegal to transfer a handgun to another who does not live in the same state without using a FFL in the receiver's home state.

    http://www.atf.gov/firearms/faq/unli...ensed-transfer

    A person may only acquire a firearm within the person’s own State, except that he or she may purchase or otherwise acquire a rifle or shotgun, in person, at a licensee’s premises in any State, provided the sale complies with State laws applicable in the State of sale and the State where the purchaser resides. A person may borrow or rent a firearm in any State for temporary use for lawful sporting purposes.

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

    So yes, the other guy was correct and you were incorrect.
    I am going to start writing my elected represntatives and ask that this provision be repealed. While it made very little sense when passed, it makes no sense now with instant check available.

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    Quote Originally Posted by KYGlockster View Post
    I had a disagreement with a gentlemen at the gun show today who was selling a handgun to a guy from Ohio. He was just a guy there selling, he didn't have a FFL or anything. He asked the man for I.D. Before he would sell him the pk380, and the guy gave it to him. He told the man he couldn't sell it to him because of state law. I entered the conversation and asked what statute says he can't sell a firearm privately to a man from Ohio and he couldn't tell me. He mentioned a few things about federal law, and I informed him that what he was saying only applied to a FFL, however he still didn't sell the firearm to the man. So...

    Am I wrong?, is there a law that says you can't privately sell a firearm to someone from another state? There is no law in Ky that says you must ask someone for I.D. Before you can sell them a gun, so how could you even know they was from a different state if you just asked if they was 18 or over, handed them the gun, got your money, and went on your way? Anyone?

    From 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 (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;

    From Wikipedia:
    Federal law allows the sale of a long gun or a handgun between private parties of the same state as long as the purchaser is 18 years of age or older. An individual who does not possess a federal firearms license may not sell a modern firearm to a resident of another state without first transferring the firearm to a dealer in the purchaser's state

    It is a federal crime for a dealer or private individual to sell a handgun to anyone who is a resident of another state.

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    Quote Originally Posted by MrOverlay View Post
    I am going to start writing my elected represntatives and ask that this provision be repealed. While it made very little sense when passed, it makes no sense now with instant check available.
    Yes, but instant checks are not available to individuals.

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    Quote Originally Posted by MrOverlay View Post
    I am going to start writing my elected represntatives and ask that this provision be repealed. While it made very little sense when passed, it makes no sense now with instant check available.
    No background check or even I.D. is required for private sales. That is the point.

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    Quote Originally Posted by ManInBlack View Post
    The unconstitutional federal regulation does exist, as pointed out above. But, as you mention, there is no duty to ask for ID when selling a weapon. It seems to me that "Are you legally able to purchase this handgun?" is the only question that needs to be asked. Put the onus onto the buyer.
    If you sell a handgun to a resident of another state you are committing a federal crime.

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    Quote Originally Posted by gutshot View Post
    If you sell a handgun to a resident of another state you are committing a federal crime.
    Yes, I understand that. I was merely pointing out that one could simply only ask the purchaser if he was legal to buy. If he says yes, the seller has no obligation to verify, so there would no mens rea, no intent to commit a criminal act. Further, if the seller is smart, he won't be selling any guns that he bought through licensed sources. I certainly wouldn't want a gun I've sold to come back to me for any reason. Less information is more, as far as I'm concerned.

    If I were on the jury of someone who was accused of inadvertently violating an unconstitutional statute, I would vote to acquit. Hell, I'd vote to acquit if he checked I.D. and sold it anyway.
    Last edited by ManInBlack; 03-03-2012 at 06:16 PM.

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    Quote Originally Posted by ManInBlack View Post
    Yes, I understand that. I was merely pointing out that one could simply only ask the purchaser if he was legal to buy. If he says yes, the seller has no obligation to verify, so there would no mens rea, no intent to commit a criminal act. Further, if the seller is smart, he won't be selling any guns that he bought through licensed sources. I certainly wouldn't want a gun I've sold to come back to me for any reason. Less information is more, as far as I'm concerned.

    If I were on the jury of someone who was accused of inadvertently violating an unconstitutional statute, I would vote to acquit. Hell, I'd vote to acquit if he checked I.D. and sold it anyway.
    In agreement there. But there was an ATF booth set up at this gun show. It would be unfortunate to "sale" a gun to an ATF agent illegally.
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    Quote Originally Posted by 09jisaac View Post
    In agreement there. But there was an ATF booth set up at this gun show. It would be unfortunate to "sale" a gun to an ATF agent illegally.
    Most definitely. Avoiding assault and kidnapping by the State's armed enforcers is a primary consideration.

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    The ATF booth was in a corner of the building, and manned by kids that didn't even seem old enough to work for ATF.. The guy he was gonna sell to was with a bunch of people and certainly not with he ATF.

    I would agree with the fact that there is no mens-rea when selling to someone and you simply ask if they are legal to buy. Your argument could be I asked, he said yes, I sold the firearm. There is no law that says I must I.d., and he certainly looked over 18. The prosecutor would have a hard time proving mens-rea, because there was none. This is a mala-prohibita statute that needs done away with.

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    Quote Originally Posted by KYGlockster View Post
    The ATF booth was in a corner of the building, and manned by kids that didn't even seem old enough to work for ATF.. The guy he was gonna sell to was with a bunch of people and certainly not with he ATF.

    I would agree with the fact that there is no mens-rea when selling to someone and you simply ask if they are legal to buy. Your argument could be I asked, he said yes, I sold the firearm. There is no law that says I must I.d., and he certainly looked over 18. The prosecutor would have a hard time proving mens-rea, because there was none. This is a mala-prohibita statute that needs done away with.

    You do not need a guilty mind to be criminally liable. The law is a strict liability. You broke the law because you sold it to someone that does not reside in your state. That is all the US Attorney would have to prove.
    In a crime of strict liability (criminal) or absolute liability, a person could be guilty even if there was no intention to commit a crime
    Last edited by hotrod; 03-03-2012 at 09:41 PM.
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    Yes, a law would be broken, however in my opinion, I'd find it hard for a jury to find someone guilty when they did not intentionally break said law. In order for a crime to be commited there must be several things present, and I just don't see someOne being convicted when intent isn't there. It's not like we are speaking of doing these things, we are merely discussing them, and the great thing about discussions is everyone is entitled to their opinion, whether it's right or wrong.

    What we are discussing is shifting intent. If you live in Ky and a guy from oh asks to buy your gun, you ask are you legally able to buy this firearm, and he says yes, then you have no reason to believe your breaking the law. If you ask for his I.d., but he says it isn't on him, then again you would ask if hes legally able to purchase. He says yes, you sell the firearm.

    This is no different than if you sold to a felon. The law says "KNOWINGLY SALE." if you ask someone who your privately selling a firearm to if he is a felon, and he says no, then you take him at his word and sell the firearm. You would have no way of verifying this information, you take the mans word to be the truth. If he says "no", yet he is a felon, he broke the law by purchasing a firearm when he knew he was not allowed to do so by law. You asked, he said no, you saved yourself from liability. If you did not ask and he was indeed a felon, then you have problems.

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    Maybe he already sold 5 guns already

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    Quote Originally Posted by KYGlockster View Post
    Yes, a law would be broken, however in my opinion, I'd find it hard for a jury to find someone guilty when they did not intentionally break said law. In order for a crime to be commited there must be several things present, and I just don't see someOne being convicted when intent isn't there. It's not like we are speaking of doing these things, we are merely discussing them, and the great thing about discussions is everyone is entitled to their opinion, whether it's right or wrong.

    What we are discussing is shifting intent. If you live in Ky and a guy from oh asks to buy your gun, you ask are you legally able to buy this firearm, and he says yes, then you have no reason to believe your breaking the law. If you ask for his I.d., but he says it isn't on him, then again you would ask if hes legally able to purchase. He says yes, you sell the firearm.

    This is no different than if you sold to a felon. The law says "KNOWINGLY SALE." if you ask someone who your privately selling a firearm to if he is a felon, and he says no, then you take him at his word and sell the firearm. You would have no way of verifying this information, you take the mans word to be the truth. If he says "no", yet he is a felon, he broke the law by purchasing a firearm when he knew he was not allowed to do so by law. You asked, he said no, you saved yourself from liability. If you did not ask and he was indeed a felon, then you have problems.
    You are correct to a point. What you would need to prove is that your due diligence proved that the purchaser was a permitted person to purchase from you. But, it is still a strict liability issue. I sell a few weapons from time to time, but, I also I ask for ID which I copy and keep with the sales records. I can provide my due diligence and avoid any problems. You can ask, take the word of the purchaser, but you may become a target if the weapon is used illegally. Or, if this an undercover agent purchasing the weapon, your problems are extended. I am not saying I do not agree with you, I am showing you the actual workings within the federal preview.
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    Quote Originally Posted by ManInBlack View Post
    No background check or even I.D. is required for private sales. That is the point.
    I know that. Perhaps I should have been clearer.

    I was speaking of when I am out of Kentucky, find a nice pistol that I want to buy, and don't want to pay the additional shipping and transfer fees to purchase it. With instant check, I should be able to buy from a dealer without any additional issues.

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    Quote Originally Posted by MrOverlay View Post
    I know that. Perhaps I should have been clearer.

    I was speaking of when I am out of Kentucky, find a nice pistol that I want to buy, and don't want to pay the additional shipping and transfer fees to purchase it. With instant check, I should be able to buy from a dealer without any additional issues.
    True. With the National Instant Check System, there is no need for the for the handgun restrictions.

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    Quote Originally Posted by hotrod View Post
    You are correct to a point. What you would need to prove is that your due diligence proved that the purchaser was a permitted person to purchase from you. But, it is still a strict liability issue. I sell a few weapons from time to time, but, I also I ask for ID which I copy and keep with the sales records. I can provide my due diligence and avoid any problems. You can ask, take the word of the purchaser, but you may become a target if the weapon is used illegally. Or, if this an undercover agent purchasing the weapon, your problems are extended. I am not saying I do not agree with you, I am showing you the actual workings within the federal preview.
    If you were offering to sell me a firearm, and I wanted to buy said firearm, I would allow you to look at my ID to determine that I was a resident of your state, and that I was of legal age to buy. However, if you tried to make a copy or record my personal information, the deal is off. At an FFL, I know that their privacy policy is, and what happens to the information. Those things are specified by Federal law. there is NO WAY IN HELL that I am giving you, a stranger, access to record my personal identifying information.

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    Quote Originally Posted by okiebryan View Post
    If you were offering to sell me a firearm, and I wanted to buy said firearm, I would allow you to look at my ID to determine that I was a resident of your state, and that I was of legal age to buy. However, if you tried to make a copy or record my personal information, the deal is off. At an FFL, I know that their privacy policy is, and what happens to the information. Those things are specified by Federal law. there is NO WAY IN HELL that I am giving you, a stranger, access to record my personal identifying information.
    Hear, hear!

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    Quote Originally Posted by MrOverlay View Post
    I know that. Perhaps I should have been clearer.

    I was speaking of when I am out of Kentucky, find a nice pistol that I want to buy, and don't want to pay the additional shipping and transfer fees to purchase it. With instant check, I should be able to buy from a dealer without any additional issues.
    Here's the deal. A private sale between two individuals who are residents of the same state is intrastate commerce. The Federal government has no jurisdiction. State law would determine what, if any restrictions come into play.

    A private sale of a handgun between individuals who are residents of different states is interstate commerce. The constitution clearly makes that within the purview of the Federal Government. The Federal Government has decided that that transaction must go through an FFL, and a NICS check be performed. The Feds like them some paper trail.

    You are not likely to get this changed. Ever.

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    Quote Originally Posted by okiebryan View Post
    Here's the deal. A private sale between two individuals who are residents of the same state is intrastate commerce. The Federal government has no jurisdiction. State law would determine what, if any restrictions come into play.

    A private sale of a handgun between individuals who are residents of different states is interstate commerce. The constitution clearly makes that within the purview of the Federal Government. The Federal Government has decided that that transaction must go through an FFL, and a NICS check be performed. The Feds like them some paper trail.

    You are not likely to get this changed. Ever.
    OK once again I'll try to clarify. If I go to a gun shop or a pawn shop out of state, I should be able to purchase a handgun at that FFL, fill out the 4473, get the NICS check, and be done. I have never been speaking of a private sale. My fault, I guess.
    Last edited by MrOverlay; 03-04-2012 at 02:20 PM.

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    Quote Originally Posted by okiebryan View Post
    Here's the deal. A private sale between two individuals who are residents of the same state is intrastate commerce. The Federal government has no jurisdiction. State law would determine what, if any restrictions come into play.

    A private sale of a handgun between individuals who are residents of different states is interstate commerce. The constitution clearly makes that within the purview of the Federal Government. The Federal Government has decided that that transaction must go through an FFL, and a NICS check be performed. The Feds like them some paper trail.

    You are not likely to get this changed. Ever.
    I agree with you. Unfortunately, SCOTUS said differently in Wickard v. Filburn. The New Deal greatly expanded the powers of the federal government and that expansion has continued ever since. Now, that expansion has accelerated even more.

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    Quote Originally Posted by hotrod View Post
    You do not need a guilty mind to be criminally liable. The law is a strict liability. You broke the law because you sold it to someone that does not reside in your state. That is all the US Attorney would have to prove.
    Bigger text doesn't change the law: this law is a law of mens rea, not strict liability. It says "knowingly or with reason to believe". If it was a law of strict liability, you would be found guilty for selling to someone with an in-state ID, if that person had moved out of state but kept his old ID.


    Quote Originally Posted by KYGlockster View Post
    The ATF booth was in a corner of the building, and manned by kids that didn't even seem old enough to work for ATF.. The guy he was gonna sell to was with a bunch of people and certainly not with he ATF.
    Would you bet your freedom on it? Police everywhere use non-police in stings precisely because they don't look like they could possibly be police. Teenagers being sent in to buy alcohol, and old men being sent around to buy guns illegally, could both be among the thousands of people caught up in legal trouble and trying to improve their situation by working for the authorities to get someone else into trouble.


    Quote Originally Posted by 09jisaac View Post
    In agreement there. But there was an ATF booth set up at this gun show. It would be unfortunate to "sale" a gun to an ATF agent illegally.
    Even if found not guilty because you didn't know it was a non-resident, your life is going to be hell. They don't want the conviction nearly as much as they want the statistic of an "illegal sale" to hold up and ask for more power, more money, and more authority.

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    Quote Originally Posted by okiebryan View Post
    If you were offering to sell me a firearm, and I wanted to buy said firearm, I would allow you to look at my ID to determine that I was a resident of your state, and that I was of legal age to buy. However, if you tried to make a copy or record my personal information, the deal is off. At an FFL, I know that their privacy policy is, and what happens to the information. Those things are specified by Federal law. there is NO WAY IN HELL that I am giving you, a stranger, access to record my personal identifying information.
    I hate to tell you okie, but your drivers license or other state issued ID is a matter of public record. The information is already available. As for the deal being off, that would be ok with me also.
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