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

Discussion in 'Legal' started by orpington, Aug 10, 2019.

  1. bearcreek

    bearcreek Member

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    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.
     
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  2. .308 Norma

    .308 Norma Member

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    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.
     
  3. .308 Norma

    .308 Norma Member

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    Thank you! I'll remember that - "record of sale to me" sounds much better than "registered to me.":)
     
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  4. JohnKSa

    JohnKSa Moderator Staff Member

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    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.
     
  5. bearcreek

    bearcreek Member

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    And of course, they always follow the law. :scrutiny:
     
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  6. George P

    George P Member

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    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
     
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  7. Sistema1927

    Sistema1927 Member

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    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.
     
  8. .308 Norma

    .308 Norma Member

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    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.
     
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  9. bearcreek

    bearcreek Member

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    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.
     
  10. Frank Ettin

    Frank Ettin Moderator

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    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.
     
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  11. George P

    George P Member

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    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.
     
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  12. orpington

    orpington Member

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    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!"
     
  13. Spats McGee

    Spats McGee Moderator

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    To answer that question, start here: https://www.thehighroad.org/index.php?threads/spats-mcgee’s-federal-constitutional-primer.700582/
     
  14. pdsmith505

    pdsmith505 Member

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

    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.
     
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  15. Elkins45

    Elkins45 Member

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    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.
     
  16. Aikibiker

    Aikibiker Member

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    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.
     
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  17. George P

    George P Member

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    That's in Florida, the OP is not but has a friend from Fl visiting him. It may NOT be legal where he resides.
     
  18. Frank Ettin

    Frank Ettin Moderator

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    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.
     
  19. Spats McGee

    Spats McGee Moderator

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    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."
     
  20. dogtown tom

    dogtown tom Member

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    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!
     
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  21. Elkins45

    Elkins45 Member

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    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.

    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: Aug 13, 2019
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  22. Eddietruett

    Eddietruett Member

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    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.
     
  23. dogtown tom

    dogtown tom Member

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    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.
     
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  24. JohnKSa

    JohnKSa Moderator Staff Member

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    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.
    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.
    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.
     
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  25. Elkins45

    Elkins45 Member

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    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.
     
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