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

[Acera]

Sorry to get your dander up frank,

I work overseas, and interact with a number of lawyers. One thing I have learned from that particular group is they don't let their ego get in the way of their work. (Unusual in my experience in that field, as I have an number of family members who are practicing attorneys.) They have issues with language and how it means different things in different parts of various legal codes all the time.

When they think that they are other ways to accomplish a task, they look into it, or find someone who knows about different angles to address the issue. They have firms they like to bring in to help, and are not opposed to searching for others. Interpretation of the law is not always black and white.

That is why the OP needs to look at other areas to help him.

I know you are not giving legal advice here, right??? So you ought to be comfortable with the suggestion to look at it in a different light, and approach from a different train of thought.

Can't see you resisting the advice for a person to pursue inquiries about legal assistance from individuals and firms that specialize in 'domicile' and 'legal residence' issues. Just maybe, one of them has dealt with this issue before.

 

[Theohazard]

That is why the OP needs to look at other areas to help him.

I know you are not giving legal advice here, right??? So you ought to be comfortable with the suggestion to look at it in a different light, and approach from a different train of thought.

How is this so difficult for people to understand? The 1968 GCA is very clear on this, and the ATF is even clearer. For the purpose of buying a firearm, residency is simply defined by where you're actually living at that time. There are no other areas for the OP to look into.

Right now the OP has three choices: Move back to the US and actually reside in a US state; challenge this law in court; or get the law changed.

Every time this subject comes up, people get so confused and start over-thinking the GCA's definition of residency. I even foresaw this in post #7 since it seems to happen every time.

 

[Frank Ettin]

...So you ought to be comfortable with the suggestion to look at it in a different light, and approach from a different train of thought....

I am certainly comfortable with, and recommend, anyone with a legal issue engaging his own lawyer for advice.

However, when someone such as you, uneducated in the law, unqualified to offer legal advice, and ignoring posted citation to applicable law, makes statements like:

...My friend would not have any issue purchasing a firearm legally when he is in Texas....

your ignorance needs to be pointed out to others. You don't know that; you're not professionally qualified to state that opinion as fact; and you might very well be wrong.

...Can't see you resisting the advice for a person to pursue inquiries about legal assistance from individuals and firms that specialize in 'domicile' and 'legal residence' issues.

And of course I think it's a great idea for folks to pursue getting legal advice from qualified lawyers they hire for such purposes. However, it would be a lousy idea for anyone to pay attention to your opinions on the topic since you clearly have no clue what you are talking about.

 

[Jim K]

Well, the use of what amounts to a dummy address would seem to run afoul of the same rules against use of a P.O. Box. Put simply, no one lives in a P.O. Box and he does not live at that dummy "address of convenience." Since it is not a P.O. Box, there is no obvious sign of non-residence and he will get away with it, at least for a while, but if he is ever investigated, he could probably be prosecuted for falsifying any 4473 on which he used that address.

There have been questions raised about RFD addresses, mainly by people (including some ATF agents) who do not know the difference between a P.O. Box and a rural mail box. The latter is as valid as a street address since the person can be found at that location; he cannot be found at a P.O. Box, or at an address of convenience..

Jim

 

[Sam1911]

They have issues with language and how it means different things in different parts of various legal codes all the time.

Acera, I think you put your foot on it right there. Words do mean very specific things in different parts of legal codes.

You MUST discern what legal code applies, and you MUST determine how that EXACT statute defines the term you're trying to apply.

In this case we know exactly which code regulates the act of buying a firearm. And we know exactly how that code defines the term "residency."

To say, that, well other people might look at other codes in other places as relates to other matters and find varying definitions for what a person's legal address might be, is immaterial.

We have THE code and we have THE definition. Looking for other interpretations and holding them out as useful here is simply dangerously misleading -- however tempting or convenient it may be to the RV-ers, boaters, and residents of foreign lands it may be.

...

I've no doubt that if you go on boaters' forums or RV-enthusiast forums you'll find advice to do exactly what you're suggesting. No doubt at all. This is not a well-understood area of law, so folks will report what they've seen or done, not necessarily what is TRUE. And folks will be quite happy to find a way to do whatever they want to do (like buy a gun even if they have no permanent address). They'll be quite pleased that they put together a solution by which a gun dealer sold them a firearm using an address that worked for the purpose. They -- like a lot of folks in the gun world -- will assume that if a dealer went ahead with a sale, then BANG!, that's a legal thing to do. Pointing out that it is actually a violation of federal law isn't going to be popular and 9 times out of 10 no one will believe that because, hey, it worked, so it must be legal.

If you found an opinion written by a lawyer that explained how this actually IS legal to do, with proper citations to applicable law and to cases which have dealt with the question decided in favor of it, then that would be meaningful. Otherwise, this is simply spreading incorrect information.

 

[Elkins45]

Has the OP addressed the very relevant question of what he plans to do with those guns while he's abroad, assuming he could legally purchase them? That seems like it is equally at issue as the residency for purchasing question.

If one could simply step back on US soil and them immediately buy a gun, what must be done with that gun when returning overseas?

If one rents an apartment, starts there when in the US, and keeps the guns there while away then it's both a residence and a place of storage--no issues under the law--but an expensive solution. What if he rents a room in a storage facility and installs a gun safe? That's a place to store them but it wouldn't pass muster as a "residence," correct?

To me the issue of storage is more interesting than purchasing.

 

[Elkins45]

Well, the use of what amounts to a dummy address would seem to run afoul of the same rules against use of a P.O. Box. Put simply, no one lives in a P.O. Box and he does not live at that dummy "address of convenience." Since it is not a P.O. Box, there is no obvious sign of non-residence and he will get away with it, at least for a while, but if he is ever investigated, he could probably be prosecuted for falsifying any 4473 on which he used that address.

There have been questions raised about RFD addresses, mainly by people (including some ATF agents) who do not know the difference between a P.O. Box and a rural mail box. The latter is as valid as a street address since the person can be found at that location; he cannot be found at a P.O. Box, or at an address of convenience..

There was a period of time post-GCA68 but pre-911 system that I didn't actually have a designated physical address even though I lived in a real physical house. There wasn't a box at the end of the driveway and I don't think the mailman came down our road. I had a PO box address and that was the only way I could receive mail. If I had to receive a parcel I had it sent to a work address. Looking back I have no idea what I would have done if I had needed police, fire or ambulance service. Maybe dictate directions to the dispatcher?

During that time I bought a couple of guns and I'm pretty sure I used the PO Box address on the 4473 form. That was the address on my driver's license. Not sure if that would fly today.

 

[enine]

What defines a home?

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 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.

I live in OH and have land and a small cabin in WV. What is the legal definition of cabin and what is the legal definition of home? I would think it needs an address. What about utilities?
Some states define resident as living there for a minimum # of consecutive days, some have a minimum number of days per year. So if I were to make my cabin a legal home because I'm there (some) weekends it looks like it would count.
Does the ATF define minimum number of weekends or minimum number of summer months?
If the OP did similar and made a tiny vacation 'home' on some land they owned with an address and spent some time there could that be a legal (second) residence as in Example 2?

 

[Frank Ettin]

What defines a home?

Well for the purposes of GCA68, it's defined at 27 CFR 478.11. The full definition as been quoted here a number of times, but note the key phrase:

...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. ....

So one must both be present in the State and have the intention of making it his home.

Lawyers prove intent all the time using circumstantial evidence from which one's intentions are inferable. For example, if one is moving to a State with an intention to make that State his home, one would expect him to (1) buy a house or enter into a lease on an apartment; (2) get a driver's license and register his car in that State; (3) change his address to that State for all purposes: (4) open a bank account at a local bank in that State; (5) look for a job in that State (unless retired); (6) move all, or substantially all, his belongings; and (7) generally do all things one would normally do when settling into a new home.

Similarly, if one is going to claim that he has a second home in another State, his claim could be successfully challenged if he doesn't do those things consistent with having a second home in a different State, e. g.: (1) owning or renting property where he lives when present on the second State; (2) keeping some portion of his personal property at that property in the second State; (3) being present at his property in that second State on some sort of regular basis over time. Just bunking with a buddy from time to time won't make the grade.

If one claims to be a new resident of a State and hasn't done such things, a federal prosecutor, a federal grand jury, and the jury at his trial for violating the GCA68 rules on interstate transfer of firearms, would be permitted and likely to infer that his claim is a sham.

 

[Frank Ettin]

...Some states define resident as living there for a minimum # of consecutive days, some have a minimum number of days per year....

And with state law, it can often depend on the purpose.

State laws often define the concepts of residence and domicile in fairly general terms, e. g., where one intends to make his home, or his permanent place of residence, or where he intends to return when temporarily absent, or principal place of residence, or words or phrases of similar import. But the real issue is the facts or factors which will be needed to establish the definition is satisfied. Let's by way example consider California law on residence since I have it handy.

So under California Vehicle Code 12505:

12505.

(a)

(1) For purposes of this division only and notwithstanding Section 516, residency shall be determined as a person’s state of domicile. “State of domicile” means the state where a person has his or her true, fixed, and permanent home and principal residence and to which he or she has manifested the intention of returning whenever he or she is absent.

Prima facie evidence of residency for driver’s licensing purposes includes, but is not limited to, the following:

(A) Address where registered to vote.

(B) Payment of resident tuition at a public institution of higher education.

(C) Filing a homeowner’s property tax exemption.

(D) Other acts, occurrences, or events that indicate presence in the state is more than temporary or transient.​

(2) California residency is required of a person in order to be issued a commercial driver’s license under this code.​

(b) The presumption of residency in this state may be rebutted by satisfactory evidence that the licensee’s primary residence is in another state....

It can also depend on one's purpose for claiming residency or non-residency. If it's a matter of being a California resident for the purposes of being eligible for resident tuition at the University of California, see here:

Establishing physical presence and intent

To meet these requirements, you must be continuously physically present in California for more than one year (366 days) immediately prior to the residence determination date (generally the first day of classes) and intend to make California your home permanently. You can demonstrate your intention to stay in California by relinquishing legal ties to your former state and establishing legal ties to California.

Here are some ways you can establish intent:

• Remain in California when school is not in session.
  
  
• Register to vote and vote in California elections.
  
  
• Designate your California address as permanent on all school and employment records, including current military records.
  
  
• Obtain a California driver's license within 10 days of settling in California. (If you've never had a driver’s license in any state, then obtain a California identification card.)
  
  
• If you have a car, obtain a California motor vehicle registration within 20 days of settling in California.
  
  
• Work in California and file California resident income tax forms from the date of entry into the state. Income earned outside of California after that date must also be declared in California.
  
  
• Establish and maintain active bank accounts in California banks and close out-of-state accounts.
  
  
• Surrender all out-of-state identification (including driver's license).
  
  
• Establish a permanent home where your belongings are kept.
  
  
• Obtain a license for professional practice in California.

You’ll need to relinquish out-of-state ties and demonstrate intent while simultaneously meeting the physical presence requirement.

If the question is California residency for tax purposes, see here (pg 4):

The underlying theory of residency is that you are a resident of the place where you have the closest connections.

The following list shows some of the factors you can use to help determine your residency status. Since your residence is usually the place where you have the closest ties, you should compare your ties to California with your ties elsewhere. In using these factors, it is the strength of your ties, not just the number of ties, that determines your residency.This is only a partial list of the factors to consider. No one factor is determinative. Consider all the facts of your particular situation to determine your residency status.

Factors to consider are as follows:

• Amount of time you spend in California versus amount of time you spend outside California.

• Location of your spouse/RDP and children.

• Location of your principal residence.

• State that issued your driver’s license.

• State where your vehicles are registered.

• State where you maintain your professional licenses.

• State where you are registered to vote.

• Location of the banks where you maintain accounts.

• The origination point of your financial transactions.

• Location of your medical professionals and other healthcare providers (doctors, dentists etc.), accountants, and attorneys.

• Location of your social ties, such as your place of worship, professional associations, or social and country clubs of which you are a member.

• Location of your real property and investments.

• Permanence of your work assignments in California.

 

[pintler]

"I live in OH and have land and a small cabin in WV."

Let's say that you do whatever one does to get an address for the cabin, and you get a WV ID card listing that address (let's assume WV will let part time residents do that).

In post #23 I quoted the ATF : "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."

Case 1: you live Jan-Jun in WV and Jul-Dec at your OH house. It seems like you could buy guns in WV from Jan to Jun, and in OH from Jul to Dec.

Case 2: you haven't visited the cabin in years, but one weekend you drive to WV and buy a gun as a WV resident, and return to OH without even visiting the cabin. It seems hard to characterize the afternoon you spent in WV as a period you were residing in WV.

Case 1 seems legit; case 2 doesn't. In between, there is a continuum of possibilities - you spend one night at the cabin, you spend lots of weekends at the cabin, you spend three months in summer at the cabin, and so on.

If anyone has any experience or case law with where on that continuum the legal boundary is drawn, I'd love to hear it.

 

[Jim K]

SAm1911 wrote, "You MUST discern what legal code applies, and you MUST determine how that EXACT statute defines the term you're trying to apply."

In my ignorance, I always thought the prosecutor/court will "discern" those issues, not the defendant.

Jim

 

[Sam1911]

Well, if you don't do a pretty good job of figuring it out ahead of time ... they will take the opportunity to do that for you.

That sure sucks for you.

 

[jstert]

dont overthink it. there is no national citizenship, we are all citizens of a state or territory. residence may be claimed after one day or one year, it all depends on the intended use of it. register to vote, write a will, buy an annuity, open a bank/credit union account, get your mail forwarded to new residence, get a state d.l. or i.d. and cwp, comply with state tax law. you need a credible address but no need to be inside its walls 24x7x365. finally except for d.l. there is no state cross index of residency.


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[Frank Ettin]

...there is no national citizenship,...

Cite legal authority for that proposition. Indeed you are wrong. Section 1 of the Fourteenth Amendment provides:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...

...residence may be claimed after one day or one year,...

And I guess that you haven't been paying attention. One's State of residence for the purposes of the Gun Control Act, which is what this thread is about, is defined under federal law in the regulations of the ATF. See post 24 for the text of the applicable regulation (27 CFR 478.11).

Furthermore, the ATF publication, Federal Firearms Licensee Quick Reference and Best Practices Guide (ATF P 5300.15), describes satisfactory identification for establishing State of residence for the purposes of acquiring a gun from an FFL in conformity with the Gun Control Act as follows (pg 6, emphasis in bold in original, emphasis in italics added):

General Identification Requirements

You MUST verify the identity of each non-licensee buyer by examining the person’s identification document(s) prior to transferring a firearm. A proper “identification document” is:

1. A document containing the name, residence address, 1. date of birth, and photograph of the person;
   
   
2. A document that was made or issued by or under 2. the authority of the U.S. Government, a State or local government, or a foreign government;
   
   
3. A document that is of a type commonly accepted for 3. the purpose of identification of individuals.

Common examples of acceptable identification documents are a valid driver’s license or a valid State identification card issued in lieu of a driver’s license. Social security cards are not acceptable because they do not contain a residence address, date of birth, or photograph. However, a firearms buyer may be identified by any combination of documents which together contain all of the required information (as long as all the documents are Government issued): name, residence address, photograph, and date of birth.

If the identification proffered by the transferee lists an address which is not his residence, i. e., where he actually lives, he has made a material misrepresentation for the purpose of buying a gun in violation of 18 USC 922(a)(6), which crime is punishable by up to five years in federal prison. Eighteen USC 922(a)(6) reads as follows:

(a) It shall be unlawful—
...

(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;...​

 

[jstert]

to o.p. and mr ettin: nothing i wrote is intended to circumvent any law. perhaps i wrote inelegantly in haste, if so my apologies. i am no attorney but i wished to point out from my experience that o.p. is not and indeed cannot be stateless by virtue of his residence overseas. there are also parallel situations where a citizen may be considered resident in two states at different times during the year. as I wrote in my earlier post, residence may have different tests, e.g. many states only allow instate university tuition after one year of residency while allowing immediate voter or vehicle registration. mr. ettin's citations of ffl law are correct and salient. i merely encourage o.p. to take appropriate and timely steps now to establish his state of residence, subject to the law as to their many uses, as he sees fit, in his particular circumstances.


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[Frank Ettin]

...i am no attorney but i wished to point out from my experience that o.p....

Whether or not your personal experience means anything or is a reasonable basis upon which to base an understanding of what the law is or how it applies is certainly open to debate. Folks who default to personal experience as a basis for understanding law often wind up sorry.

...cannot be stateless by virtue of his residence overseas...

A citizen of the United States living abroad is not "stateless" insofar as he remains a citizen of the United States. And he might be considered a resident of some State for some purposes. That doesn't necessarily mean that he will be considered a resident of that State, or any other State, for the purposes of the Gun Control Act of 1968.

....residence may have different tests...

Yes, depending on the purpose. But for the purposes of the GCA, the test is defined in 27 CFR 478.11. In order to lawfully buy a gun in a State one must be a resident of that State according to that (27 CFR 478.11) test.