Private sales to Curio and Relic license holders under Virginia’s new universal background check law

Since Virginia’s so-called ‘universal background check’ law went into effect on July 1, 2020, there have been a number of questions about its applicability to different circumstances.

I have previously written about whether one could still gift a firearm under Virginia’s new universal background check law.

Today I will address the issue of whether Virginia’s new universal background check law negates any of the benefits of having a Curio and Relic Federal Firearms License (C&R).

For those unfamiliar with a C&R license, it is a federal firearms license which allows the holder to directly purchase those firearms that are classified as ‘curios or relics’ without undergoing an individual background check for each item.

So what kinds of firearms are we talking about?  To quote the ATF website linked above:

To be recognized as C&R items, firearms must fall within one of the following categories:

  • Firearms which were manufactured at least 50 years prior to the current date, but not including replicas of such firearms;
  • Firearms which are certified by the curator of a municipal, state, or federal museum which exhibits firearms to be curios or relics of museum interest; and
  • Any other firearms which derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event.

Earlier today, I received an email from a client who wanted to sell a C&R firearm to a C&R license holder (both were Virginia residents).  He wanted to know whether he could do so without conducting the background check since the buyer was a license holder.

Let’s look at the language of the new law (emphasis added):

§ 18.2-308.2:5. Criminal history record information check required to sell firearm; penalty.

A. No person shall sell a firearm for money, goods, services or anything else of value unless he has obtained verification from a licensed dealer in firearms that information on the prospective purchaser has been submitted for a criminal history record information check as set out in § 18.2-308.2:2 and that a determination has been received from the Department of State Police that the prospective purchaser is not prohibited under state or federal law from possessing a firearm or such sale is specifically exempted by state or federal law. The Department of State Police shall provide a means by which sellers may obtain from designated licensed dealers the approval or denial of firearm transfer requests, based on criminal history record information checks. The processes established shall conform to the provisions of § 18.2-308.2:2, and the definitions and provisions of § 18.2-308.2:2 regarding criminal history record information checks shall apply to this section mutatis mutandis.The designated dealer shall collect and disseminate the fees prescribed in § 18.2-308.2:2 as required by that section. The dealer may charge and retain an additional fee not to exceed $15 for obtaining a criminal history record information check on behalf of a seller.

While the initial language seems to indicate that it reaches all ‘persons’ selling firearms, the highlighted section incorporates the definitions and provisions of § 18.2-308.2:2 which provides in relevant part that:

H. The provisions of this section shall not apply to (i) transactions between persons who are licensed as firearms importers or collectors, manufacturers or dealers pursuant to 18 U.S.C. § 921 et seq.; (ii) purchases by or sales to any law-enforcement officer or agent of the United States, the Commonwealth or any local government, or any campus police officer appointed under Article 3 (§ 23.1-809 et seq.) of Chapter 8 of Title 23.1; or (iii) antique firearms or curios or relics.

This subsection clearly exempts those licensed as Curio and Relic collectors from the provisions of § 18.2-208.2:2, which is statutorily incorporated as equally applicable to the requirements of § 18.2-308.2:5.

Therefore, a Virginia resident may sell a C&R firearm to a C&R license holder without conducting the background check that would otherwise be required in a private sale.


Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states. If you have further questions about this topic, please feel free to contact me for a free consultation.

Posted in ATF, Background Checks, BATFE, Black Powder Firearms, C&R, Criminal Law, Curio and Relic, FFL 03, FFL Issues, Private Sales, Universal Background Checks, Virginia Law | Comments Off on Private sales to Curio and Relic license holders under Virginia’s new universal background check law

ATF Withdraws Their Ill-Conceived Guidance on Stabilizing Braces

Last week I wrote an article in which I discussed the ATF’s published guidance document in the Federal Register entitled Objective Factors for Classifying Weapons with “Stabilizing Braces”.

In that article, I noted that there were numerous problems with the supposed ‘objective factors’ laid out in the guidance document.  I also provided several comments for people to use as starting-points for their own comments during the ‘notice and comment’ timeframe for the guidance document.

During the first week of the notice and comment period, there were apparently tens of thousands of comments submitted by concerned owners and manufacturers about the arbitrary and capricious nature of the guidance and the complete lack of notice it gave to those who would be subject to its ‘case-by-case’ interpretation.  In fact, as of the writing of this article, there were an impressive 69,485 comments.

In addition, on December 22nd, ninety members of Congress sent a letter to the ATF addressing the same concerns.  See the letter and the co-signers below.

How much impact did your comments and the letter from these representatives have?  Well … even though the notice and comment period was only slated to run through January 4, 2021, the ATF announced on December 23rd that they were withdrawing the proposed guidance document.

Download (PDF, 105KB)

While they do not give any specific reason why they are withdrawing the proposed guidance document, I have to suspect that it was at least partially because their legal team realized that our complaints were valid and that ‘objective guidance’ and ‘case-by-case determination’ are antithetical concepts.

Thanks to all who submitted comments and to the members of Congress who were brave enough to support the rights of their constituents.  I do not believe this is the last we will hear from the ATF as the Biden Administration takes power and attempts to implement the draconian gun control ideas they espoused on the campaign trail.  But at least for now, we have a small victory.

Posted in Administrative Law, AR Pistols, ATF, ATF Guidance Letters, ATF Ruling, BATFE, Due Process, Federal Law, Firearms Technology Branch, Regulatory Rulemaking, SBR, SBS, Short Barreled Rifles, Short Barreled Shotguns, Stabilizing Brace | Comments Off on ATF Withdraws Their Ill-Conceived Guidance on Stabilizing Braces

May I still gift a firearm under Virginia’s new universal background check law?

With the holiday season upon us, I am getting quite a few emails and phone calls asking whether Virginia’s new universal background check law prevents the gifting of firearms.

I want to start by noting that it is federal law which governs the gifting of firearms to recipients across state lines and this article is solely focused on Virginia residents gifting other Virginia residents.

Having said that, the law in question, which was passed during the 2020 General Session, is codified at § 18.2-308.2:5 of the Code of Virginia and provides in part that:

A. No person shall sell a firearm for money, goods, services or anything else of value unless he has obtained verification from a licensed dealer in firearms that information on the prospective purchaser has been submitted for a criminal history record information check as set out in § 18.2-308.2:2 and that a determination has been received from the Department of State Police that the prospective purchaser is not prohibited under state or federal law from possessing a firearm or such sale is specifically exempted by state or federal law.

Note the portions that I have bolded.  The key takeaway is that the new law only applies to the sale or trade of firearms for something of value.  And while our loved-ones, and their happiness are priceless to us, gifts and inheritance are not governed by the new law.

In short, you may feel free to gift firearms during the holiday season or at any other time of year without the involvement of a licensed dealer so long as the gift-giver and the recipient are both residents of Virginia and the recipient is not otherwise prohibited from possessing firearms under state or federal law.


Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states. If you have further questions about this topic, please feel free to contact me for a free consultation.

Posted in 4473, Background Checks, Gifting Firearms, Private Sales, Universal Background Checks, Virginia Law | Comments Off on May I still gift a firearm under Virginia’s new universal background check law?