May I ‘gift’ a firearm to a relative or friend in another state?

Posted on October 21, 2013 by John Pierce

Christmas_GiftsWith the holidays fast approaching, I suppose it was only a matter of time before I was asked this question.  After all, a quality firearm, treated with respect and care, is an heirloom that can last for generations.

But can you even give it as a gift to someone who lives in another state?

The short answer is “Yes you can.”  However, that doesn’t really answer the entire question.

What you should really be asking is “How do I legally ship the firearm to the lucky recipient in another state?”

The reason you need to ask this question is because federal law generally prohibits such interstate transfers unless they go through an FFL.  § 18.2-922(a)(3) says that:

(a) It shall be unlawful—

(3) for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State …

There are certain exceptions such as those for face-to-face transfers of rifles and shotguns as well as for firearms that are temporarily loaned for sporting purposes.  But generally, interstate transfers between non-FFL holders is prohibited.

So … how does one go about getting that special gift to Uncle Fred?

Step 1
Ask Uncle Fred to find a local gun store which charges a reasonable fee for transfers.

Step 2
Have the gun store send you a copy of their FFL.

Step 3
Ship the firearm to the FFL via common carrier (note that USPS will NOT ship handguns).

Step 4
Uncle Fred goes to the FFL and picks up the firearm while complying with both federal background check laws as well as any state or local additional requirements.

Step 5
Apologize to Uncle Fred for it no longer being a surprise but remind him how cool a nephew you are for getting him a firearm as a gift.

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.

Posted in Federal Law, Gifting Firearms, Interstate Firearm Transfers | Comments Off on May I ‘gift’ a firearm to a relative or friend in another state?

Understanding constructive possession

Posted on October 15, 2013 by John Pierce

Uppers_ARMay I have extra uppers or butt stocks for my SBR in the same gun safe as Title 1 lowers?

There is a lot of confusion regarding the concept of constructive possession as it relates to components which can be assembled to make a regulated firearm (in this case an SBR).

And people are right to be concerned. There are a number of cases affirming the idea that components do not need to be completely assembled to make them a ‘firearm’ under certain section of the law.

In 1966, the 3rd Circuit Court of Appeals held in United States v. Kokin (365 F. 2d 595) that a carbine together with all parts necessary to convert it into a machinegun is a machinegun.  In 1971 the 7th Circuit Court of Appeals reaffirmed this concept in United States v. Zeidman (444 F. 2d 1051) where the court held that a pistol and attachable shoulder stock found “in different drawers of the same dresser” constituted a short-barreled rifle.

So one would imagine that any combination of matching uppers or butt stocks and unregistered lowers stored in the same safe would automatically constitute an unregistered short-barreled rifle.

However, in 1992 in United States v. Thompson/Center Arms Co. (504 U.S. 505) the United States Supreme Court, in a plurality opinion, adopted an approach that can best be described as the “useful purpose” or “obvious utility” test.

In the case of an extra upper or butt stock for your SBR stored in the same safe as a matching Title 1 lower, since the upper or butt stock can be used legally with the registered SBR, it has “useful purpose” and “obvious utility” outside of the possibility of making an illegal SBR.

However, I interpret Thompson/Center Arms to also require that the Title 1 lower have an upper either attached or in the same safe which would complete a legal Title 1 firearm.

So to answer the initial question … If you follow these guidelines, I interpret Thompson to hold that you may have extra short-barreled uppers or butt stocks for your registered SBR in the same safe as matching unregistered lowers.

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.

Posted in ATF, BATFE, SBR, SCOTUS, Short Barreled Rifles, US Supreme Court | Comments Off on Understanding constructive possession

May I have multiple uppers for my SBR?

Posted on October 15, 2013 by John Pierce

UppersA client called me today as she was completing her Form 1.  She wanted the option to configure multiple uppers on her SBR once she received her approved Form 1 and tax stamp.

Her question, which seems to pop up quite frequently, was whether or not this is allowed under ATF regulations.

The good news is that you can switch out the upper on your registered SBR.  The configuration noted on the Form 1 is the configuration in which the SBR must be ‘manufactured’ and is considered the ‘primary’ configuration.  However, you may switch out the upper as you see fit once it is registered as an SBR so long as the change would not put the resulting firearm into a different NFA category such as SBS.

I should note that the ATF requests that you notify them if you are going to make a permanent change in the primary configuration.  But this is a request only and does not currently have a regulation giving it the force of 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.

Posted in ATF, BATFE, Form 1, SBR, Short Barreled Rifles | Comments Off on May I have multiple uppers for my SBR?

Checking the status of your NFA application

Posted on October 15, 2013 by John Pierce

Status_CheckWith lead-times for NFA applications exceeding eight months and rising, I am often asked how to go about checking the status of an application.

The ATF addresses this question on their NFA Frequently Asked Questions Page.

“If you wish to confirm receipt of an application by ATF or obtain a status check on a pending application, you should call the NFA Branch at 304-616-4500. It will help the NFA Branch locate your application more quickly if you have the serial number of the firearm sought for transfer and the name of the prospective transferee.”

I should note that this number is not being staffed during the government shutdown.

There are also third-party sites where collectors share the status of their own applications.  These sites allow you to see what processing times the larger community is experiencing.

While I am not affiliated with nor endorsing any of these sites, one popular example is NFATracker.com.

Posted in ATF, BATFE, Form 1, Form 4, NFA Trusts | Comments Off on Checking the status of your NFA application

All NFA application processing is suspended during the shutdown

Posted on October 10, 2013 by John Pierce

Govt_ShutdownI have been contacted by several clients asking whether or not the government shutdown is affecting the processing of Form 1 and Form 4 applications.

Unfortunately the answer is yes.  During the shutdown, all Form 1, 3, and 4 applications will not be processed and status checks are not available.

NFA collectors are used to waiting upwards of 8 months in order for their NFA application to be processed.  It looks like those currently in-process will see that time frame extended closer to 10 months.

Posted in ATF, BATFE, Form 1, Form 4, NFA Trusts | Comments Off on All NFA application processing is suspended during the shutdown