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Handgun sale question

6L6GC

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Jul 9, 2007
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492
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Newport News, Virginia, USA
Hello all,
I checked the "Law Library" section and didn't find exactly what I was looking for, so I thought I'd ask here in hopes that one (or more) of the lawyers that frequent this site will give me some guidance. I know a man who is in the military and is stationed in Virginia and he wants to sell a handgun he bought to another military man who is also stationed in Virginia. They are both permanently stationed here, not TDY. They both have Virginia mailing addresses and have been here for a while. Is it legal for the man to sell the gun to his friend without a back ground check? I don't want to give them bad advice that may cause them trouble later.

Thanks in advance,

roN
 

color of law

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I am not an attorney. If they are both legal residences of Va. then they can sell between each other. What I don't know is if Va. has a state law that disallows private sales. Do they have Va. driver licenses? Someone from Va. will pipe in with the correct answer per Va. law......
 

Marco

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Greene County
Hello all,
I checked the "Law Library" section and didn't find exactly what I was looking for, so I thought I'd ask here in hopes that one (or more) of the lawyers that frequent this site will give me some guidance. I know a man who is in the military and is stationed in Virginia and he wants to sell a handgun he bought to another military man who is also stationed in Virginia. They are both permanently stationed here, not TDY. They both have Virginia mailing addresses and have been here for a while. Is it legal for the man to sell the gun to his friend without a back ground check? I don't want to give them bad advice that may cause them trouble later.

Thanks in advance,

roN

http://law.lis.virginia.gov/vacode/title18.2/chapter7/section18.2-308.2:2/

Where the photo-identification was issued by the Department of Defense, permanent orders assigning the purchaser to a duty post in Virginia, including the Pentagon, shall be the only other required documentation of residence. For the purposes of this section and establishment of residency for firearm purchase, residency of a member of the armed forces shall include both the state in which the member's permanent duty post is located and any nearby state in which the member resides and from which he commutes to the permanent duty post
 

color of law

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http://law.lis.virginia.gov/vacode/title18.2/chapter7/section18.2-308.2:2/

Where the photo-identification was issued by the Department of Defense, permanent orders assigning the purchaser to a duty post in Virginia, including the Pentagon, shall be the only other required documentation of residence. For the purposes of this section and establishment of residency for firearm purchase, residency of a member of the armed forces shall include both the state in which the member's permanent duty post is located and any nearby state in which the member resides and from which he commutes to the permanent duty post
What does this have to do with a private sale?
 

color of law

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A sale of your property to another does not always require a contract. Section 11-2(8) of the Virginia Code excludes from the statute of frauds any agreement that can be performed within one year of its execution, “a writing is not needed so long as the contract can be performed within a year, even if only by some improbable event.” Shiple v. Jackson, 56 Va. Cir. 235, 236 (Richmond 2001).

The information that should only exist is whatever exists on form 4473. In other words, your private disposal of your property is your business. If you are going to keep any information I would only keep name and date of the person you disposed your property with. You may note that you looked at some form of state picture ID. In my view that would be it. Any other information is unimportant. A story by an attorney was just posted about talking to cops or any government official. It's not wise. 18 USC 1001 comes to mind.
http://forum.opencarry.org/forums/s...ter-Shooting&p=2181104&viewfull=1#post2181104

I'm just say'n....
 

MAC702

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The answer to the OP's question, directly, is that there is no requirement for there to be a background check for this transaction.

When I buy from a licensed dealer, at least I have some confidence that my private information (de facto registration) is held in a secure place. Not so when buying from a private seller. If I dislike the government having records of citizens' arms, why would I be okay with this info on a piece of paper in some Joe's file cabinet (or worse)? Shun bills of sale.
 

user

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A sale of your property to another does not always require a contract. Section 11-2(8) of the Virginia Code excludes from the statute of frauds any agreement that can be performed within one year of its execution, “a writing is not needed so long as the contract can be performed within a year, even if only by some improbable event.” Shiple v. Jackson, 56 Va. Cir. 235, 236 (Richmond 2001).

The information that should only exist is whatever exists on form 4473. In other words, your private disposal of your property is your business. If you are going to keep any information I would only keep name and date of the person you disposed your property with. You may note that you looked at some form of state picture ID. In my view that would be it. Any other information is unimportant. A story by an attorney was just posted about talking to cops or any government official. It's not wise. 18 USC 1001 comes to mind.
http://forum.opencarry.org/forums/s...ter-Shooting&p=2181104&viewfull=1#post2181104

I'm just say'n....

Hogwash. Just because the statute of frauds doesn't require a written contract doesn't mean that one doesn't exist. If you give me cash money for a pencil in an informal transaction, that's a contract for the purchase and sale of personal property. Offer, acceptance, and consideration. Form 4473 is an official document, potentially publicly available (I can issue a subpoena to get me a copy), and has nothing to do with whether or not you can buy or sell a handgun within your own state in a transaction with another resident of the same state. I'll say it again, hogwash.
 

user

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The answer to the OP's question, directly, is that there is no requirement for there to be a background check for this transaction.

When I buy from a licensed dealer, at least I have some confidence that my private information (de facto registration) is held in a secure place. Not so when buying from a private seller. If I dislike the government having records of citizens' arms, why would I be okay with this info on a piece of paper in some Joe's file cabinet (or worse)? Shun bills of sale.

And you say this clearly without having looked at mine. There's no information on it that identifies anyone other than that which is already public "directory information". And there are good reasons why you should use a bill of sale, and specifically my bill of sale, which you can learn about if you read the derned thing, and particularly the second page which contains the instructions. But, no doubt, you've been practicing personal defense law a lot longer than I have and clearly know more than I do. But I think you'd be an idiot not to use that form I've made available to the public for free. But then, there are people who blithely sign chattel mortgage agreements at new car dealers without reading them... I guess if you have a sufficiently optimistic nature and think that nothing bad will happen, just because you don't want it to, then you don't have to take the precautions that ordinary people do to protect themselves. Hell, why should you even have a gun, nothing bad is going to happen that could require you to defend yourself, right? Not in your world.
 

MAC702

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And you say this clearly without having looked at mine. ... But I think you'd be an idiot...

You assume too much. And as much as I disagree with you, I refuse to call you an idiot, or attempt to further interest you in a conversation with someone you deem so. Have a good day.
 
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user

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You assume too much. And as much as I disagree with you, I refuse to call you an idiot, nor attempt to further interest you in a conversation with someone you deem so. Have a good day.

I didn't call you an idiot. I said "you" in the popularly accepted way of referring to "one who...", the "generalized you", not a "specific you"; and I expressed my opinion in the subjunctive mood, not as a statement of fact, but an opinion about something that may or may not be true. But I've seen lots of people do a lot of things which to my mind, as a practicing defense attorney, are just plain dumb, that I've given up trying to be polite about people doing things that are just plain dumb. You buy a gun from some dude without a bill of sale and it turns out to be a murder weapon, bingo, you're the murderer. Or you sell one to someone who turns out to be a convicted felon, bingo, you had reason to know he was ineligible, because you've got no evidence to the contrary. Why take those kinds of risks? Particularly in an arms length transaction with someone you don't really know. Why should the purchaser not give you an affidavit assuring you that he is, in fact, eligible to receive possession of a firearm, and why should the seller be unwilling to affirm that he is in fact the owner or authorized by the owner to sell the gun because it isn't stolen? Eh?

Well, this question falls into the "you pays your money and you takes your choice" category - but as those of us who spend a lot of time in court say, "well, you can pay me now or pay me later... but it's going to cost a lot more if you wait 'till later."
 

notalawyer

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I didn't call you an idiot. I said "you" in the popularly accepted way of referring to "one who...", the "generalized you", not a "specific you"; and I expressed my opinion in the subjunctive mood, not as a statement of fact, but an opinion about something that may or may not be true. But I've seen lots of people do a lot of things which to my mind, as a practicing defense attorney, are just plain dumb, that I've given up trying to be polite about people doing things that are just plain dumb. You buy a gun from some dude without a bill of sale and it turns out to be a murder weapon, bingo, you're the murderer. Or you sell one to someone who turns out to be a convicted felon, bingo, you had reason to know he was ineligible, because you've got no evidence to the contrary. Why take those kinds of risks? Particularly in an arms length transaction with someone you don't really know. Why should the purchaser not give you an affidavit assuring you that he is, in fact, eligible to receive possession of a firearm, and why should the seller be unwilling to affirm that he is in fact the owner or authorized by the owner to sell the gun because it isn't stolen? Eh?

Well, this question falls into the "you pays your money and you takes your choice" category - but as those of us who spend a lot of time in court say, "well, you can pay me now or pay me later... but it's going to cost a lot more if you wait 'till later."

LOTS and LOTS and LOTS of people do not want a record of their personal property transactions for a myriad of reasons.

2) How is the firearm in my possession going to be determined to be a murder weapon? Especially since I bought it from a guy without any paperwork.

3) You sound a little odd for a defense attorney...you certainly have a funny idea of proof beyond a reasonable doubt oir heck enven probable cause or even reasonable suspicion.

I'll tell you what. Next time the police come to my door asking about a firearm I bought/sold, I'll tell them hand on a second. Walk into my office download & print out your silly form...fill in fake data and hand it to the cops. Problem solved! :banghead:
 

user

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...
3) You sound a little odd for a defense attorney...you certainly have a funny idea of proof beyond a reasonable doubt oir heck enven probable cause or even reasonable suspicion.
...

Hah! I love it! You got that in one... anyone who knows me will tell you I'm a LOT odd for a defense attorney. And I take great pleasure, no, I revel in it. I do trials, I'm not a plea-bargain factory. And that means I have to really, truly know what I'm doing in both civil and criminal cases. Think that's odd, eh? I tell you, that one makes my day.

Most defense lawyers don't carry lightning bolts around with them, either. (Thanks and acknowledgement to Peter Nap for the amusing portraiture.)
dan.jpg

By the way, with respect to issues of probable cause and reasonable suspicion. You litigate those issues a lot, do you? Tell you my perspective, first gained from listening to my uncle who was a police chief - he cautioned me never to put my hands in my pockets while shopping - that's grounds for an arrest for shoplifting (or what today would be called, "concealment of merchandise"). And it doesn't happen to most people most of the time, but that, or things just like it, happen to perfectly normal citizens all the time. I suggest you take a day off and go down to your local courthouse and sit in on the misdemeanor docket some day. As Otto Von Bismarck said as Chancellor of Germany, "Those who love the law and sausages should not observe the process by which either is made." I think those sausages are made out of just plain folks who for whatever reason get ground up in the "criminal justice system". It is criminal, in my mind, the way it works. So my answer is to know how it works and how to work it. It doesn't pay to be a romantic idealist when it comes to criminal prosecutions.

But the bill of sale form, to me, is not a matter for argument. Use it or not as you see fit; it's a free public service, if you want it, take it. But ultimately, I don't care whether anyone takes my advice or not, I'm not the one going out of the courtroom via the side door. Funny thing about that, some of my most loyal clients are people who don't do what I tell them.
 
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notalawyer

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Hah! I love it! You got that in one... anyone who knows me will tell you I'm a LOT odd for a defense attorney. And I take great pleasure, no, I revel in it. I do trials, I'm not a plea-bargain factory. And that means I have to really, truly know what I'm doing in both civil and criminal cases. Think that's odd, eh? I tell you, that one makes my day.

Most defense lawyers don't carry lightning bolts around with them, either. (Thanks and acknowledgement to Peter Nap for the amusing portraiture.)
View attachment 12983

By the way, with respect to issues of probable cause and reasonable suspicion. You litigate those issues a lot, do you? Tell you my perspective, first gained from listening to my uncle who was a police chief - he cautioned me never to put my hands in my pockets while shopping - that's grounds for an arrest for shoplifting (or what today would be called, "concealment of merchandise"). And it doesn't happen to most people most of the time, but that, or things just like it, happen to perfectly normal citizens all the time. I suggest you take a day off and go down to your local courthouse and sit in on the misdemeanor docket some day. As Otto Von Bismarck said as Chancellor of Germany, "Those who love the law and sausages should not observe the process by which either is made." I think those sausages are made out of just plain folks who for whatever reason get ground up in the "criminal justice system". It is criminal, in my mind, the way it works. So my answer is to know how it works and how to work it. It doesn't pay to be a romantic idealist when it comes to criminal prosecutions.

But the bill of sale form, to me, is not a matter for argument. Use it or not as you see fit; it's a free public service, if you want it, take it. But ultimately, I don't care whether anyone takes my advice or not, I'm not the one going out of the courtroom via the side door. Funny thing about that, some of my most loyal clients are people who don't do what I tell them.

I've got a couple hundred hours in court, thanks. Arraignments, PC hearings, Misdemeanor and felony trials. I still stand by my observations.
 

user

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I've got a couple hundred hours in court, thanks. Arraignments, PC hearings, Misdemeanor and felony trials. I still stand by my observations.

That's good, so you'll understand my analogy to the M*A*S*H expression, "meatball surgery", when I say that the local misdemeanor and traffic court is "meatball justice". The good ones function like assembly line factory production. The occasional defendant who really is, "not guilty", gets ground up anyway in that machine because his lawyer isn't "odd", but a cog in a machine who knows what's expected of him and doesn't make waves, because he's a system guy working in The System. And the sad thing is that the poor bastard has to pay money for the privilege of being ground up; he doesn't quite know what's going on, the person whom he trusts to interpret that reality for him is telling him "Listen, when the judge hears what the cop has to say, you're going to be found guilty and go to jail for a long time, unless you take the prosecutor's offer. Plead guilty and I can get you a reduced sentence."

When I do "damage control" by negotiating a plea, the first thing I do is tell the client the matter is entirely his choice, and he doesn't have to do anything one way or the other; he's got rights and he can stand on those rights. Of course, all decisions have consequences, but what I think is a risk, he may not, and vice-versa, so I can't substitute my judgement for his. What I can do is explain his options to him, the risks and benefits of each option, tell him what I recommend, and why I recommend it. And what it boils down to is always like the tv show, "Let's Make a Deal", in which Monty Hall tells the contestant that they have three options: they can hold on to the cash, they can take the box, or they can go for the curtain in front of which Carol is now standing. The defendant can take the cash, a known quantity that represents a relatively fixed deal in which the consequences are known (i.e., the prosecutor's offer), they can go for the box (much the same in size as the first option, but with some unknowns) which represents simply pleading guilty and arguing sentencing before the judge (often the prosecutors play hardball thinking that a lawyer will want to get back to his office and make more money as quickly as possible and won't be willing to sit around 'till the end of the docket in order to shave three days off the jail sentence). And finally, the defendant can protect all of his rights - the right to keep quiet, the right to a fair trial, the right to an appeal, and the right on appeal to have a jury hear his case. (Assuming a misdemeanor charge - felonies start out with the right to a jury trial.) And going for the curtain is the only way the defendant can protect all his rights. Whether or not he goes for one or another option is all dependent on the strength of whatever case he's got, the charges against him, and the degree to which he is personally averse to risk. Again, not my decision, but his, and I don't twist anyone's arm, ever, to get an agreement to a plea offer. What's funny is that I get better plea offers than most "normal" lawyers because the prosecutors know I'm prepared, ready, willing, and able to go to trial. But then, I'm "odd".
 

OC for ME

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Yes. I suggest the use of my bill of sale form, available in pdf on my website.
I sold a shotgun, over-under 20GA, to a friend here in Missouri and use your bill of sale. He asked me "What Virginia has to do with a gun sale in MO." "I have it on good authority that the fella at the bottom of the page knows exactly what he is talking about, especially #3. Sign the paper or no sale I said. Signed the paper he did.

Never pass up a chance to take advantage of free, and sound, legal advice.
 

color of law

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I love how attorneys like to mischaracterize statements just so they can make a specious argument.

And some of those same attorneys like to make claims that whatever they spout on a forum should not be taken as legal advice, but merely personal opinion. Yet, in a flash tout their legal prowess by condemning those non-attorneys as neophytes because some choose not to partake in their (wink wink) personal opinion.

Those same attorneys say that a man who is his own lawyer has a fool for a client. But in fact, some would argue that a lawyer representing his own interest is even more foolish than a lay person.

So master, which is the greatest commandment in the law?

I would say that the original poster got his answer and there is nothing else to discuss.

All have a nice day......
 
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