Can you legally buy handguns at tag sales in some states?

Status
Not open for further replies.
I’d call it a record of sale that stays on file at the dealer. If the feds want to investigate who the gun was sold to, they can. And they can also investigate who my TV was sold to, since the electronics store also has my contact information on file. But I wouldn’t say that my TV is “registered” with the federal government.
Are you legally required by Federal law to leave your contact info with the electronics store so that the government can access those records if they feel the need to? This could turn into another debate about the exact meaning of a specific word, but it seems to me, that if there is a government accessible record of you having bought that weapon, that's registration or something very like it. The record is just somewhat less convenient for them to access than if it was stored in a central database. Still accomplishes the same thing.
 
SO? Officer, I sold that gun X months/years ago at a flea market. SO WHAT?
George, I think we might not be understanding one another. I wasn't worried when that FBI Special Agent came out to the house to talk to me about the circumstances surrounding the sale of that gun. I knew I'd done nothing wrong - at least not in Idaho. The fact is, the FBI guy told me over the phone, before he ever asked if he could come out to the house, that I wasn't in trouble, that I'd done nothing illegal.
The reason I summarized the story for this thread was merely to answer the OP's question - so called "tag sales" of handguns are perfectly legal in some states (Idaho for one) even at gunshows. At least they are for now.
 
How did that happen if the FBI didn't have access to the 4473 I filled out?
They have access, but only in a "reverse trace". What happened was they went to the manufacturer of the gun and used the serial number to determine which distributor received that firearm. Then they went to the distributor and used the distributor's records to determine what retailer/FFL received the gun. Then they went to the FFL and when through his records to find out when he sold the gun and then looked up the 4473 for the gun to determine who purchased the gun new.

By law, even the 4473s that have been sent in can not be compiled into a registry. They can be accessed for reverse traces, but may not be used to create a list of gun owners and their guns.
 
Honestly I don't remember what FFL dealer I bought that .44 Special from. They might have shut down. But I well remember the FBI's phone call a couple of months after my wife sold it telling me that the .44 Special I used to own was recovered from a foiled bank robbery in Los Angeles.
How did that happen if the FBI didn't have access to the 4473 I filled out?
Because they went to the mfg who told them what wholesaler they sold it to, who told them what retailer they sold it to who told them what customer they sold it to
 
And to show the ever present danger of incrementalism, our "rocket surgeon", "brain scientist" Governor is now saying that we need to revisit our newly enacted background checks in light of the El Paso shooting.

She is suggesting background checks on both the buyer and the seller (??!!??). Yeah, that will stop those pesky mass shooters, and when it doesn't we will impose even more infringements until all the nasty guns are spirited away by the gun fairy.
 
Because they went to the mfg who told them what wholesaler they sold it to, who told them what retailer they sold it to who told them what customer they sold it to
No kidding!?! Isn't that exactly what JohnKSa stated in his post?
The FBI had "access" to the 4473 I filled out through a "reverse trace." And if a new gun you buy or bought from an FFL dealer is used in the commission of a crime, and the FBI gets hold of that gun (providing the serial number is still on it) , the FBI can access the 4473 you filled out in order to trace that gun to you - whether you like it or not George.
I already said I was sorry I called the filling out of a 4473 a "registration." I was wrong. But I am not wrong about the FBI being able to gain access to a 4473 either you, I, or anyone else filled out in order to trace a new gun back to the buyer that first purchased it from an FFL dealer - if said gun was used in the commission of a crime that is.
I repeat - whether you like it or not George.
 
Because they went to the mfg who told them what wholesaler they sold it to, who told them what retailer they sold it to who told them what customer they sold it to
So basically, it's registration. It's just that currently, the "list" is kept in pieces, by law, in multiple places (the manufacturer, wholesaler and FFL). This is, of course, assuming that the FBI can be trusted to follow the letter of the law to a T.
 
So basically, it's registration....

I'm not sure that it's necessarily helpful to label the system or argue over the label. It is what it is.

Looking at the federal side, the record requirements don't create a clean, simple database in which law enforce can look and find out that S&W Model 65-3, serial number xxxxxx, is [supposed to be] in the possession of Fred Jones at yyyyyy First Street in Toledo, OH. All it allows law enforcement to do is to discover, after a bunch of work, that the gun when new and first delivered to an FFL by the factory or a distributor was sold to Fred Jones. Even that's questionable -- if the dealer ceased business and transferred his records to the ATF (we don't know if such records have been maintained in a way in which they're searchable or if there are thousands of boxes of records stacked randomly in a warehouse); or if the dealer failed to turn over his records when he ceased business; or if the dealer legally destroyed old records; or if the gun were sold one or more times after Fred bought it; etc.

Is that really "registration"? What we call it doesn't change what it is, and what counts is what it is.

State universal background check systems are probably closer to what the common understanding of "registration" might be. The States will most likely maintain databases, and thus would over time be able to track successive gun transfers -- as long as such transfers were done legally and in the State.

But we're getting sort of far afield from the original question.
 
No kidding!?! Isn't that exactly what JohnKSa stated in his post?
The FBI had "access" to the 4473 I filled out through a "reverse trace." And if a new gun you buy or bought from an FFL dealer is used in the commission of a crime, and the FBI gets hold of that gun (providing the serial number is still on it) , the FBI can access the 4473 you filled out in order to trace that gun to you - whether you like it or not George.
I already said I was sorry I called the filling out of a 4473 a "registration." I was wrong. But I am not wrong about the FBI being able to gain access to a 4473 either you, I, or anyone else filled out in order to trace a new gun back to the buyer that first purchased it from an FFL dealer - if said gun was used in the commission of a crime that is.
I repeat - whether you like it or not George.
Read Frank's reply above - IF the dealer still has the records - maybe yes, maybe no; IF the ATf has scanned and computerized things if the dealer went out of business and they're not in some Indiana Jones and the Lost Ark type of a warehouse. LOTS of ifs. So to bring it back around, buying a gun at a tag /yard/garage sale is legal in many states and there's no "paperwork" I know several folks who only buy guns this way. But even if you go your route, there is still no guarantee the government can trace it, and even if they did - if you sold it years ago, their trail turns cold.
Free market economics works best without ANY government interference, and it doesn't matter what the commodity is.
 
So...if it's okay to purchase a handgun at a tag/garage/estate sale in some states as this, much to my surprise, is perfectly legal in certain states, and does not violate Federal law, what gives certain other states the right to require paperwork/background checks? Or, why doesn't the Federal government tell these restrictive states, Constitutionally, "you cannot do that!"
 
So...if it's okay to purchase a handgun at a tag/garage/estate sale in some states as this, much to my surprise, is perfectly legal in certain states, and does not violate Federal law, what gives certain other states the right to require paperwork/background checks? Or, why doesn't the Federal government tell these restrictive states, Constitutionally, "you cannot do that!"
To answer that question, start here: https://www.thehighroad.org/index.php?threads/spats-mcgee’s-federal-constitutional-primer.700582/
 
So...if it's okay to purchase a handgun at a tag/garage/estate sale in some states as this, much to my surprise, is perfectly legal in certain states, and does not violate Federal law, what gives certain other states the right to require paperwork/background checks? Or, why doesn't the Federal government tell these restrictive states, Constitutionally, "you cannot do that!"


Unfortunately Spats' constitutional primer stops short of discussing the 10th Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Short of a finding by the Supreme Court that background checks violate the 2nd Amendment as incorporated against the States through the 14th Amendment, the 10th Amendment gives states the power to require background checks if they so choose.

I wouldn't suggest holding your breath.
 
It also does not mean that they are a "loophole." When I think of the term, two things come to mind:
  1. "Loophole" = Legal; and
  2. "Loophole" implies that there is some thing or some behavior which is exempted from the operation of a law by an unintended or inadvertent error. Like a drafting error, or maybe an unintended consequence. But the key is that it be the result of something unintended, or in error.
I'll have to do some digging, but my recollection is that private firearms transfers were originally, and intentionally, exempted from background checks, which came with the Brady bill in ~1993. That means that this "gun show / private sale loophole" isn't a loophole at all, but is part of the law exactly as had been agreed upon and drafted. It was only (very shortly) afterwards that the antigunners started screaming about the "loophole." The fact that they didn't get everything they wanted doesn't mean that they didn't get what they bargained for.


Again, it's not a loophole. I'm not "getting around" anything. There's simply no requirement that private party, intrastate sales go through an FFL.

The actual meaning of loophole is a thing that is technically legal but only because the people who wrote the law didn’t imagine every possible circumstance. This particular situation “slipped through the cracks” but is clearly against the spirit of the law. They way the gun banners use loophole is to mean something that is legal under the letter of the law, but we don’t like it.
 
A friend is visiting from Florida and he told me he has been told that state law trumps Federal law and you can cash and carry a handgun from a tag sale there. If this is so, then there are such loopholes. Otherwise, in my experience, in states I've lived in, want to buy a handgun, an FFL is involved. This is why I cannot understand why such a big deal is made about the gun show loophole by politicians as this is limited to rifle and shotgun sales between private individuals only.

Of course you can buy handguns from private sales without going through an FFL. Why ever would you not be able to?

You can also build your own gun if you want.
 
Of course you can buy handguns from private sales without going through an FFL. Why ever would you not be able to?

You can also build your own gun if you want.
That's in Florida, the OP is not but has a friend from Fl visiting him. It may NOT be legal where he resides.
 
Of course you can buy handguns from private sales without going through an FFL...
Not necessarily.

If the seller and buyer are residents of different States, federal law will require all (with very few exceptions) transfers go through an FFL (see this post).

If seller and buyer are residents of the same State it will depend on state law. Under state law transfers must go through an FFL in California, Oregon, Washington State, and a number of other States.
 
The actual meaning of loophole is a thing that is technically legal but only because the people who wrote the law didn’t imagine every possible circumstance. This particular situation “slipped through the cracks” but is clearly against the spirit of the law. They way the gun banners use loophole is to mean something that is legal under the letter of the law, but we don’t like it.
I agree with most of what you wrote, but have to disagree with the underlined part. The antigunners want us all to think that exempting private sales is "against the spirit of the law*," or that private sales "slipped through the cracks," but I don't think so. If you look at the federal provisions on gun sales, the exemption of private sales isn't the product of an oversight. It's the product of negotiation. Let's look at 18 USC 922 (edited for brevity and clarity):
Congress said:
(a) It shall be unlawful-- . . . .(3) for any person, other than a . . . . licensed dealer, . . . . transport into or receive in the State where he resides . . . .any firearm purchased or otherwise obtained by such person outside that State, except that this paragraph (A) shall not [apply to certain will bequests] . . . . [and] (B) shall not apply to the transportation or receipt of a firearm obtained in conformity with subsection (b)(3) of this section, . . . .;

(5) 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 in which the transferor resides; except that this paragraph shall not apply to (A) [apply to certain will bequests] and (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;

18 U.S.C.A. § 922 (West)
Ok. So no transferring guns across state lines unless it's a will, a temporary sporting loan, or in conformity with (b)(3). Let's look at (b)(3):
Congress said:
. . . .(b) It shall be unlawful for any . . . . licensed dealer . . . . to sell or deliver-- . . . . (3) any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in . . . . the State in which the licensee's place of business is located, except that this paragraph (A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee's place of business is located if [certain conditions are met]. . . . and (B) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;

18 U.S.C.A. § 922 (West)
Taken as a whole, it's clear to me that private sales between non-licensees were clearly discussed and dealt with in the drafting process. A statute like this can easily take days or weeks to draft, with all of the research and copies going back and forth between various negotiators and drafters. They (Congress) didn't just "not think about" private sales. They intentionally exempted them.

* = For whatever it's worth, my opinion of "spirit of the law" arguments (generally, not specifically directed at Elkins45) is that they're another way of saying "I want to argue something that isn't actually in the law."
 
The actual meaning of loophole is a thing that is technically legal but only because the people who wrote the law didn’t imagine every possible circumstance. This particular situation “slipped through the cracks” but is clearly against the spirit of the law. They way the gun banners use loophole is to mean something that is legal under the letter of the law, but we don’t like it.
Hogwash!
The GCA of 1968 created the FFL and the Form 4473. It restricted firearm sales to residents of the same state and later allowed the sales of rifles and shotguns to residents of contiguous states.

At no point was the intent to restrict the sale or transfer of firearms between neighbors, local family members or through local gun shows in that state. From 1968 until the passage of FOPA in 1986, federal law prohibited licensed dealers from selling or transferring at gun shows. Clearly Congress understood that no 4473 would have been completed as the Form 4473 is only required for a transaction from a licensee.

"the spirit of the law" (GCA 1968) was to regulate the INTERSTATE COMMERCE in firearms. Until 1968 firearms could be bought mail order and delivered right to your door.

Following your logic, the 80mph speed limit on the Interstate is a "loophole" because your neighborhood is posted 20mph.

"Loophole!" is what you scream when you are ignorant or ill informed. Anti-gunners believe the "gun show loophole" is something new. It's not. Other than selling to a felon, firearm transactions between neighbors or other residents of your state have never been regulated by federal law. THAT AIN'T A LOOPHOLE!
 
I agree with most of what you wrote, but have to disagree with the underlined part. The antigunners want us all to think that exempting private sales is "against the spirit of the law*," or that private sales "slipped through the cracks," but I don't think so. If you look at the federal provisions on gun sales, the exemption of private sales isn't the product of an oversight. It's the product of negotiation. Let's look at 18 USC 922 (edited for brevity and clarity):

Ok. So no transferring guns across state lines unless it's a will, a temporary sporting loan, or in conformity with (b)(3). Let's look at (b)(3):

Taken as a whole, it's clear to me that private sales between non-licensees were clearly discussed and dealt with in the drafting process. A statute like this can easily take days or weeks to draft, with all of the research and copies going back and forth between various negotiators and drafters. They (Congress) didn't just "not think about" private sales. They intentionally exempted them.

* = For whatever it's worth, my opinion of "spirit of the law" arguments (generally, not specifically directed at Elkins45) is that they're another way of saying "I want to argue something that isn't actually in the law."

I was unclear. I wasn’t referring to private gun sales with my definition, but to true loopholes like obscure tax code stuff and things like that. Private gun sales aren’t loopholes-they fit the “ legal but we don’t like it” definition.

Hogwash!
The GCA of 1968 created the FFL and the Form 4473. It restricted firearm sales to residents of the same state and later allowed the sales of rifles and shotguns to residents of contiguous states.

At no point was the intent to restrict the sale or transfer of firearms between neighbors, local family members or through local gun shows in that state. From 1968 until the passage of FOPA in 1986, federal law prohibited licensed dealers from selling or transferring at gun shows. Clearly Congress understood that no 4473 would have been completed as the Form 4473 is only required for a transaction from a licensee.

"the spirit of the law" (GCA 1968) was to regulate the INTERSTATE COMMERCE in firearms. Until 1968 firearms could be bought mail order and delivered right to your door.

Following your logic, the 80mph speed limit on the Interstate is a "loophole" because your neighborhood is posted 20mph.

"Loophole!" is what you scream when you are ignorant or ill informed. Anti-gunners believe the "gun show loophole" is something new. It's not. Other than selling to a felon, firearm transactions between neighbors or other residents of your state have never been regulated by federal law. THAT AIN'T A LOOPHOLE!

As I said, this was a miscommunication on my part. I was trying to discern between what is a true loophole and the permorative useage of the term to describe things that are perfectly legal but that antis find distasteful. There was a sentence I deleted that probably should have been left because as written the “this” I referenced seems (incorrectly) to be private sales.
 
Last edited:
In some states, if you purchase a handgun from a dealer, not only do you have to fill out a 4473 for a federal background but also the gun is "registered to you" through the state. Here in SC if you buy from a dealer, you have to go through the background check unless you already have a cwp, but the gun is not "registered to you" because the 4473 stays in the possession of the ffl dealer and no information is sent in to the Feds with one exception. If you purchase more than 1 handgun in SC from the same dealer in a 5 day period, he must send a multiple handgun purchase report to either the FBI or ATF, I forget which. Individual to individual requires no paperwork, but according to an ATF agent I talked to, it is the responsibility of the seller to make sure the buyer is legal to own a gun as far as age and being a resident of the state if it is a handgun sale. It is also highly recommended the seller get a bill of sale signed and a copy or at least a driver license number just to cya. Obviously you would have no way to know if someone is a convicted felon or not. I was surprised to find out that the paperwork by a dealer in SC is not "registered" anywhere but in his filing cabinet which he has to keep forever. SC has no data base to check any firearm unless it has been reported stolen. If you report one of your guns stolen, then if it is found it can be traced back to you.
 
…... It is also highly recommended the seller get a bill of sale signed and a copy or at least a driver license number just to cya. .
1. Highly recommended by who?
2. What do you think a signed bill of sale proves?
3. How does a bill of sale "cya"?
4. What does a drivers license number provide?
5. How dumb does a buyer need to be to hand over his DL to a stranger?
6. Do you provide the buyer with a copy of your DL showing your home address? You know, the place where he can get more guns.:scrutiny:

I ask because while a bill of sale provides a buyer with "proof of purchase", it doesn't absolve the seller of any legal responsibilities he has in selling that firearm.
A seller asking that the buyer sign a BOS?:rofl: That's gonna prove what exactly? If the buyer was a felon.....do you really think he would hesitate to sign? Do you really think a DL# is proof of anything? Good grief. A seller demanding the buyer sign a BOS is just silly.

I'm required to record the buyers ID information on the Form 4473 after he completes and signs, nonlicensees are not.
Enjoy your freedom while you can.
 
And of course, they always follow the law.
Maybe not all of them follow the law, but even the most cynical would have to admit that some LEOs are good people in the job for the right reasons. The idea that the entire BATF/FBI could be in conspiracy to break the law against registration with no one ever breaking ranks is not really credible.
The FBI had "access" to the 4473 I filled out through a "reverse trace." And if a new gun you buy or bought from an FFL dealer is used in the commission of a crime, and the FBI gets hold of that gun (providing the serial number is still on it) , the FBI can access the 4473 you filled out in order to trace that gun to you - whether you like it or not George.
They only had access to that information AFTER the gun was used in a crime, and AFTER they went through the whole reverse trace process. Let's keep in mind what you originally claimed: " When I fill out a 4473 in my name, the federal government knows I bought that gun from an FFL dealer." That is absolutely not true. Nobody but the dealer and you know that you bought a gun "when you fill out a 4473". IF something happens to that gun at some point, and AFTER they go through the reverse trace, and IF there are no broken links in the chain (business burned down, went bankrupt and didn't send in the forms, etc.) they can eventually FIND OUT that you bought a gun from that dealer, but that's very obviously not happening "when you fill out a 4473". It's happening much later.
But I am not wrong about the FBI being able to gain access to a 4473 either you, I, or anyone else filled out in order to trace a new gun back to the buyer that first purchased it from an FFL dealer - if said gun was used in the commission of a crime that is.
Correct. Assuming that everything works right, the record keeping system allows them to trace the gun to the initial purchaser if there is sufficient reason to run the trace.

It should be clear that going at it from the other angle--trying to determine what guns a person owns or has bought and from which dealer--is not going to succeed given the limitations of the system and any attempts made along those lines would raise a lot of red flags with gun dealers.
 
5. How dumb does a buyer need to be to hand over his DL to a stranger?

He doesn’t have to hand it to me, but he does have to show me one that was issued by KY. I’m perfectly happy if he holds his thumb over the address, but I want to see that he’s the same person on the license photo. I live pretty close to Cincinnati and have had more than one Ohio resident who seemingly doesn’t know the law try to buy a gun from an Armslist ad. I have the gut feeling that one of them was either a reporter fishing for a story or a LEO fishing for an arrest based on how hard he tried to convince me it would be OK.
 
Status
Not open for further replies.
Back
Top