Do US citizens living abroad lose their 2nd amendment rights?

[BPaddict]

I'm an American citizen living in Europe - I'd like to continue collecting firearms but my worry is filling out the ATF paperwork and also having in-state ID when making firearms purchases.

Is there any way for me to legally buy cartridge guns when I return to the US for visits? It seems ridiculous that my 2nd amendment rights should be suspended just because I live abroad. Obviously there is no 2nd amendment over here, but I should still have full constitutional rights when I'm back in the US, even temporarily.

I've sent letters to my congressman/senator, the NRA and the ATF asking them about this but have not received any answer.

Private sales might be an option but would I be placing the seller in risky spot since I'm not technically a resident of any state? I wouldn't be committing any crime by buying a gun that way would I?

Until then I've gone over to collecting blackpowder guns and buying conversion cylinders.

 

[BPaddict]

OK, found some articles... looks like current law does strip me of my 2nd amendment rights though SAF challenged this in court in 2006... Can't find the outcome of the case(s)

http://legaltimes.typepad.com/blt/2011/04/dc-circuit-revives-suit-challenging-firearm-laws.html

 

[Devonai]

You need to establish a state of residency to complete a sale. A private sale is only legal if both parties are residents of the same state. Do you have close relatives living stateside? It may be possible to use their address to establish residency, though there may also be a minimum time (i.e. 180 days per year) you must be in country.

You also have the issue of where to store your weapons while you are abroad. Ideally the same relatives would be willing to store them at your established residency.

You may find this story of interest:

https://iapcar.org/u-s-may-block-gun-sales-to-citizens-living-abroad/

 

[rodregier]

US Ex-Pats loose their 2A rights. Consequence of CGA 68.
(State of residency issue).

It would be good if this was favorably resolved in US case law, but last I saw the one applicable case was in limbo.

Similar issue for folks who choose to live a mobile lifestyle in the US. They'll create a fiction of a fixed location residence but if it's carefully examined it would fall apart.

Best workaround is to acquire firearms offshore and temporarily import then with 6NIA form and take away afterwards (if you can acquire offshore).

I suspect that in states that don't consider a loan being a legal transfer, a friend/relative can probably loan you a firearm for usage. Just be very careful that you don't get seduced into the straw purchase trap.

 

[Theohazard]

Do you have close relatives living stateside? It may be possible to use their address to establish residency, though there may also be a minimum time (i.e. 180 days per year) you must be in country.

This is very, very irresponsible advice. If followed, it's possible that the OP could be commiting a felony.

Per the 1968 Gun Control Act, your state of residence for the purpose of buying a firearm is defined in 27 CFR 478.11. Here is more info directly from the ATF (emphasis mine):

A person’s “State of residence” is defined by regulation in 27 CFR 478.11 as “the State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State.” Ownership of a home or land within a given State is not sufficient, by itself, to establish a State of residence. However, ownership of a home or land within a particular State is not required to establish presence and intent to make a home in that State. Furthermore, temporary travel, such as short-term stays, vacations, or other transient acts in a State are not sufficient to establish a State of residence because the individual demonstrates no intention of making a home in that State.

Unless the OP is actually living in the US, he can't have a firearm transferred to him. And the residence address used on the 4473 must be the actual address at which he currently resides; you can't just use a relative's address unless you're actually living at that address.

 

[Devonai]

I stand corrected, but I didn't exactly say "You're cool bro, go for it!"

 

[Theohazard]

I stand corrected, but I didn't exactly say "You're cool bro, go for it!"

Fair enough. I just constantly see people on here who misunderstand the residency requirements for buying a firearm, and very often they end up giving bad advice that could lead to a possible felony. I apologize if I came across as harsh.

It's something that comes up here and on TFL very often. People don't understand that residency for the purpose of buying a firearm is simply defined as where you're currently living. They often try to use other definitions of residency that are used for other purposes.

People often argue strongly that the address they use on the 4473 can be from the state where their military home of record is, or where they pay taxes, or where they own property, or even "where their heart is". I've seen all of these claims made. But none of these things matter when it comes to the residency requirements for buying a firearm.

 

[X-Rap]

I think there are some real legal consequences about storing guns as well. I don't know what you have done with the guns you own but I don't think you can just leave guns at anothers property while you are gone for an extended period of time.

 

[Jim K]

Well, when you live abroad you are under the laws of the country of your residence. You don't get to carry your U.S. rights with you (unless you are under some military SOFA or have diplomatic immunity).

As an example: If you choose, for whatever reason, to live or travel in a country that has no free speech right, you can be jailed if you speak out against what you see as some injustice. In friendly countries, the State Department will try to do what they can, but you lost your U.S. Constitutional rights when you entered another country.

If in doubt, check with those Americans who have been imprisoned for years in North Korea for doing or saying something we would not even consider a misdemeanor.

As to buying a gun in the U.S., how can someone claim to be resident of the U.S. if he doesn't live here, has no address, no way he can be traced in the U.S. And if he has no legal way to take it to his country of residence, why does he need or want to buy it?

For some reason people seem to think that guns, one of the most regulated products in the world, are unregulated in other countries.

I have seen many posts to the effect "I will be travelling to country X, and I have a Y state CCW and I plan to carry my Glock 17 and do you see any problem?" Well, maybe if you are lucky (or unlucky) you will get only life in prison instead of immediate execution. Then comes the inevitable, "But James Bond does it and I got my Second Amendment rights." Sure.

Jim

 

[Devonai]

Fair enough. I just constantly see people on here who misunderstand the residency requirements for buying a firearm, and very often they end up giving bad advice that could lead to a possible felony. I apologize if I came across as harsh.

I also apologize for speculating without doing better research.

 

[BPaddict]

Well, when you live abroad you are under the laws of the country of your residence. You don't get to carry your U.S. rights with you (unless you are under some military SOFA or have diplomatic immunity).

As an example: If you choose, for whatever reason, to live or travel in a country that has no free speech right, you can be jailed if you speak out against what you see as some injustice. In friendly countries, the State Department will try to do what they can, but you lost your U.S. Constitutional rights when you entered another country.

If in doubt, check with those Americans who have been imprisoned for years in North Korea for doing or saying something we would not even consider a misdemeanor.

As to buying a gun in the U.S., how can someone claim to be resident of the U.S. if he doesn't live here, has no address, no way he can be traced in the U.S. And if he has no legal way to take it to his country of residence, why does he need or want to buy it?

For some reason people seem to think that guns, one of the most regulated products in the world, are unregulated in other countries.

I have seen many posts to the effect "I will be travelling to country X, and I have a Y state CCW and I plan to carry my Glock 17 and do you see any problem?" Well, maybe if you are lucky (or unlucky) you will get only life in prison instead of immediate execution. Then comes the inevitable, "But James Bond does it and I got my Second Amendment rights." Sure.

Jim

You seem to have missed my point. Of course I know I have to comply with European laws while in Europe, including their de facto prohibition of self defense and near total firearm bans.

My question is how it can be legal to strip me of my rights when I return to the US for visits.

 

[Snejdarek]

I'm an American citizen living in Europe - I'd like to continue collecting firearms

Move to the Czech Republic. Learn language, get license, collect guns.

Still in Europe, yet issue solved.

 

[Praxidike]

I think there are some real legal consequences about storing guns as well. I don't know what you have done with the guns you own but I don't think you can just leave guns at anothers property while you are gone for an extended period of time.

Why couldn't he/she? Might differ from state to state, but in most states, there's no law against intrusting your firearms with an un-prohibited person...

 

[Praxidike]

Depending on the state, the only option I can think of, someone correct me if I'm wrong, is to have friend or family member who lives in the states give a gun to you as a gift, i.e., you do not compensate them for it in anyway.

 

[Theohazard]

I think there are some real legal consequences about storing guns as well. I don't know what you have done with the guns you own but I don't think you can just leave guns at anothers property while you are gone for an extended period of time.

Why couldn't he/she? Might differ from state to state, but in most states, there's no law against intrusting your firearms with an un-prohibited person...

But that may be breaking federal law depending how it's done. Federal law in 18 USC 922(a)(5) prohibits anyone but a dealer from transferring a gun to someone who is a resident of another state. So all private transfers must be done between residents of the same state and the transfer must occur in that state.

Federal law in 18 USC 922(a)(5) does allow a non-dealer to loan a gun to someone from another state temporarily for lawful sporting purposes, but it seems to me that giving your guns to someone else while on vacation and then going back oversees for months at a time wouldn't be considered a temporary loan for sporting purposes. So my opinion is that could easily be considered an illegal interstate transfer. But I'm no lawyer, that's just my layman's interpretation of what the law says.

I do know that the ATF says you can leave your registered NFA items in someone else's house in another state provided they're in a safe that only you have access to. This might also be relevant to non-NFA firearms considering it wouldn't be considered a transfer if only the owner had access to the safe, but again, that's a question for a lawyer.

 

[Theohazard]

Depending on the state, the only option I can think of, someone correct me if I'm wrong, is to have friend or family member who lives in the states give a gun to you as a gift, i.e., you do not compensate them for it in anyway.

No. Again we have someone advising the OP to commit a possible felony.

Federal law doesn't distinguish between a gift or a sale in this regard. Both are transfers. And if the transfer occurs between people who are residents of different states, then it must go through an FFL (where this FFL needs to be located depends on what type of firearm it is). And since the OP isn't a resident of any state, he can't be transferred a firearm from an FFL or an individual.

 

[Jim Watson]

BPaddict,
Do you plan to move back to the USA in the foreseeable future?

What do the legal experts say about a layaway plan?
I have paid deposits on guns but not done the registration until I paid them off and took possession.

 

[Theohazard]

I'm not a legal expert, but those residency requirements only apply to the actual transfer of a firearm. I'm not aware of any federal law that would prohibit someone from paying a dealer for a firearm ahead of time with the intention of transferring it legally once they became a resident.

 

[Praxidike]

Op, what state would you be visiting/staying in when you come to the US?

 

[Frank Ettin]

Why couldn't he/she? Might differ from state to state, but in most states, there's no law against intrusting your firearms with an un-prohibited person...

It's not necessarily a state law issue. We discussed this a lot here, most recently last March. See this post:

...Giving guns to someone in another State to store for you is highly problematic under federal law.

The federal laws relating to the transfer of a gun from a resident of one State to a resident of another (i. e., the Gun Control Act of 1968 or GCA68) are about physical possession, not ownership. GCA68 was Congress' responding to enormous public pressure after the assassinations by gunfire of three wildly popular public figures -- JFK, RFK and MLK. The law was intended to regulate and control the interstate transfer of firearms. It was structured so that to the extent reasonably possible any transfer of possession of a gun from a resident of one State to a resident of another would have to go through an FFL.

And in the context of the concerns intended to be address by Congress through GCA68, it's possession and not ownership that matters. Someone who has a gun in his possession can use it, whether or not he has legal title to it.

Giving someone your gun to store for you will be considered a transfer. It certainly is under federal law, and would also most likely be also considered a transfer under state laws. That's just what "transfer" means.

1. In general, any transfer of a firearm from a resident of one State to a resident of another must go through an FFL who will follow all usual formalities (e. g., completion of the 4473). There are a few limited, narrow, specific exceptions: if you have an appropriate federal firearms license; inheritance by will or intestate succession; or a loan (subject to a number of limitations which will be discussed in more detail below).
   
   
2. The applicable federal statutes are: 18 USC 922(a)(3); 18 USC 922(a)(5); and 18 USC 922 (b)(3). The full texts of those statutes may be found here.
   
   
3. The federal laws I've cited are about possession, not necessarily ownership.
   
   
   • Possession means:

     1 a : the act of having or taking into control...

     
     
   • Transfer is about possession, not ownership.
     
     Some definitions of "transfer" (emphasis added):
     
     
     • http://legal-dictionary.thefreedictionary.com/transfer:

       ...Transfer encompasses the sale and every other method, direct or indirect, of (1) disposing of property or an interest therein or possession thereof;...

       
       
     • http://www.thefreedictionary.com/transferred:

       2. Law To make over the possession or legal title of; convey.

     • http://law.yourdictionary.com/transfer:

       Any and every method of removing something from one person or place to another; specifically, the handing over of possession or control of assets or title. ...

     
     
   • Let's look at the statutes:
     
     
     • 18 USC 922(a)(3), which provides in pertinent part (emphasis added) as follows:

       (a) It shall be unlawful—
       ...
       
       (3) for any person, ... to transport into or receive in the State where he resides ...any firearm purchased or otherwise obtained by such person outside that State,...

       
       
     • And 18 USC 922(a)(5), which provides in pertinent part (emphasis added) as follows:

       (a) It shall be unlawful—
       ...
       
       (5) for any person ... to transfer, sell, trade, give, transport, or deliver any firearm to any person ...who the transferor knows or has reasonable cause to believe does not reside in ... the State in which the transferor resides..;

     
     
   • Note carefully the words of those statutes. Words, like "transport", "receive", "obtained", "transfer", "give", "transport", and "deliver" do not necessarily imply ownership and include possession. They will be read and applied by a court according to their ordinary meanings. See Perrin v. United States, 444 U.S. 37 (United States Supreme Court, 1979), at 42:

     ...A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning...

   
   
4. Is there no way to store your gun in another State?
   
   
   • Leaving a gun with someone in another State clearly raises interstate transfer problems when that person has access to the gun.
     
     
   • One possible way to avoid the problem would be to secure the gun or guns in a locked case or similar container to which only you have the key or combination.
     
     
   • That might avoid the transfer problem inherent in having someone store your guns, ATF has advised here that one may ship a firearm to himself in care of another person in another State.
     
     Specifically ATF has said (emphasis added):

     6. May I lawfully ship a firearm to myself in a different State?
     
     

     Any person may ship a firearm to himself or herself in the care of another person in the State where he or she intends to hunt or engage in any other lawful activity. The package should be addressed to the owner “in the care of” the out-of-State resident. Upon reaching its destination, persons other than the owner must not open the package or take possession of the firearm.​

   
   
5. Note that violations of federal law regarding interstate transfers are punishable by up to five years in federal prison and/or a fine; and since the crime is a felony one will lose his gun rights for the rest of his life.

Depending on the state, the only option I can think of, someone correct me if I'm wrong, is to have friend or family member who lives in the states give a gun to you as a gift, i.e., you do not compensate them for it in anyway.

You're wrong. Giving a gun to someone you know or have reasonable cause to believe is not a resident of your State is illegal under GCA68.

 

[Jim K]

That is a great answer as far as it goes, but how can the OP, who has no state of residence, buy or obtain a gun legally in the U.S. He can't complete a 4473 at a gun store, and he can't do a FTF deal where otherwise legal, since that is only between residents of the same state and he has no state.

Of course, he could give someone else's address, and store the gun(s) with that person, but that would be lying on the 4473 since the OP is not a resident at that address, only a visitor.

I have lived overseas (Italy), most of the time as a government employee or contractor under SOFA, but when I was not under SOFA I had no U.S. Constitutional rights except the right to vote. Otherwise, I did not even have the rights accorded to any citizen of Italy (like the right to vote in Italian elections), because I was a foreigner.

Service members are considered as retaining their residence of record as where they lived when they entered military service, but that is not the case here.

I am NOT an attorney, so I am supposed not to comment on these topics, but in my non-legal opinion, the OP is out of luck, but it is by his own choice.

Jim

 

[Theohazard]

Service members are considered as retaining their residence of record as where they lived when they entered military service

Not when it comes to buying a firearm. When buying a firearm, a service member can either use their permanent duty station or the home where they actually live, but "home of record" has no relevance when buying a firearm. I already mentioned that in post #7.

 

[pintler]

Quoted ATF guidance: "Ownership of a home or land within a given State is not sufficient, by itself, to establish a State of residence."

FWIW, they elaborate here: https://www.atf.gov/questions-and-a...tate-and-owns-property-another-state-purchase

"If a person maintains a home in 2 States and resides in both States for certain periods of the year, he or she may, during the period of time the person actually resides in a particular State, purchase a firearm in that State. However, simply owning property in another State does not alone qualify the person to purchase a firearm in that State."

n.b. I'm not disagreeing with the quoted posting; but wanted to point out that it seems like, say, a snowbird who split the year between AZ and MN could buy in either state, while in the respective state. I'd welcome any further details people have - what if the time split isn't even, e.g. 3 months in AZ and 9 months in MN, etc, etc.

 

[Frank Ettin]

...how can the OP, who has no state of residence, buy or obtain a gun legally in the U.S....

Perhaps he can't.

ATF addressed the issue in Ruling 2010-6:

...Held, for the purpose of acquiring firearms under the Gun Control Act of 1968, a United States citizen who temporarily resides in a foreign country, but who also demonstrates the intention of making a home in a particular State, is a resident of the State during the time period he or she actually resides in that State.

Held further, the intention of making a home in a State must be demonstrated to a Federal firearms licensee by presenting valid identification documents. Such documents include, but are not limited to, driver’s licenses, voter registration, tax records, or vehicle registration.....

So whether or not a U. S. national living abroad can buy a gun in the U. S. largely turns on whether he has a bona fide second residence in the U. S. But in any case, that second residence must still satisfy the applicable definition of State of Residence under GCA68 (27 CFR 478.11):

State of residence. The State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State. If an individual is on active duty as a member of the Armed Forces, the individual's State of residence is the State in which his or her permanent duty station is located, as stated in 18 U.S.C. 921(b). The following are examples that illustrate this definition:

Example 1.

A maintains a home in State X. A travels to State Y on a hunting, fishing, business, or other type of trip. A does not become a resident of State Y by reason of such trip.

Example 2.

A maintains a home in State X and a home in State Y. A resides in State X except for weekends or the summer months of the year and in State Y for the weekends or the summer months of the year. During the time that A actually resides in State X, A is a resident of State X, and during the time that A actually resides in State Y, A is a resident of State Y.

Example 3.

A, an alien, travels to the United States on a three-week vacation to State X. A does not have a state of residence in State X because A does not have the intention of making a home in State X while on vacation. This is true regardless of the length of the vacation.

Example 4.

A, an alien, travels to the United States to work for three years in State X. A rents a home in State X, moves his personal possessions into the home, and his family resides with him in the home. A intends to reside in State X during the 3-year period of his employment. A is a resident of State X.​

...Service members are considered as retaining their residence of record as where they lived when they entered military service, but that is not the case here.....

A Servicemember's home of record is not necessarily his State of Residence for the purposes of GCA68. Let's see what the Army Staff Judge Advocate has to say (bolded text in original, underlined emphasis added):

..."Home of record" is almost always the state where you first joined the military. Home of record (HOR) is an accounting term used by the military to determine a number of military benefits, such as travel allowances back to your state when you leave active duty. A Soldier's HOR is usually the same as the Soldier's SLR, but that's merely a coincidence, since most people just happen to join the military in the state that is also their SLR. Except in the military, HOR is usually a meaningless term. Military spouses do not have a HOR. You may only change your HOR to correct an error or if you leave the military and then rejoin....

A Servicemember may only buy a gun in a State which satisfies the 27 CFR 478.11 definition of State of Residence.

...I am NOT an attorney, so I am supposed not to comment on these topics,...

One doesn't have to be an attorney to comment. But one's comments do need to be based on what the law actually is and supported as appropriate by evidence and legal authority.

 

[Jim K]

I stand corrected on "home of record"; I was thinking of driver's license/auto registration, which IIRC are good as long as the person is a member of the armed forces; the idea is avoid forcing a service member to be constantly changing those documents during his/her term of service.

I also didn't mention that the OP would have some avenues of relief: One is to contact a member of Congress, the NRA, etc, and start the ball rolling toward a change in the law; the other is to file suit against the government on the basis of denial of rights. I probably don't need to discuss the chances or either succeeding, especially since the OP would have (IMHO) difficulty showing more than limited ability to exercise his rights in any case.

Jim