Does Federal law require that firearm transfers at gunshows require an ID check?

[Bexar]

I've always understood that even non-FFL holders were required by Federal law to confirm age and state residence. Trying to answer a question for someone wanting to sell a gun at a show.

Thanks

 

[NavyLCDR]

Does Federal law require that firearm transfers at gunshows require an ID check?

Sales by FFLs - yes. Sales made by private parties - no.

Here's part of the Federal laws for private party transfers (there are more, but none require an ID check):

http://www.law.cornell.edu/uscode/text/18/922

18 U.S. Code § 922 - Unlawful acts

(a) It shall be unlawful—

(5) for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides;

(x)
(1) It shall be unlawful for a person to sell, deliver, or otherwise transfer to a person who the transferor knows or has reasonable cause to believe is a juvenile—
(A) a handgun; or
(B) ammunition that is suitable for use only in a handgun.

State laws may be more restrictive.

 

[Bexar]

Thanks

 

[JRH6856]

This is the so-called "gunshow loophole".

 

[Bexar]

If I was selling a gun at a show I'd make damn sure I checked an ID for the above conditions.

 

[oneounceload]

Does Federal law require that firearm transfers at gunshows require an ID check?

Nope, nor at flea markets, garage sales, FTF sales, or any other type of sale between two private individuals; local laws may be quite different.

 

[JRH6856]

That is certainly your option as a matter of individual choice, but not a requirement of federal law.

 

[Bubbles]

Bear in mind that some states require private parties to transfer through an FFL.

 

[Jim K]

State or local law aside, the answer to the question is no. But since it is very much illegal to sell to someone who is not a resident of the same state as the seller, or who is a juvenile, it would seem to me that getting an ID would be common sense as a matter of protection. The seller would be vulnerable if the buyer were not a good guy and later "ratted out" the seller, or if the buyer is an ATF agent (or one of Bloomberg's hired thugs).

Private sales can be tricky, though. Consider this situation. Two residents of VA meet at a gun show in MD. One sells a handgun to the other. Since both are from VA, the sale is legal under federal law, even though the sale takes place in MD. But MD law says transfer of a handgun must go through a MD-licensed (an FFL is not enough) dealer. So the transaction would be legal under federal law, but illegal under state law in the state where it takes place.

Jim

 

[Frank Ettin]

...Two residents of VA meet at a gun show in MD. One sells a handgun to the other. Since both are from VA, the sale is legal under federal law,...

It's not absolutely certain that's true. See 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,...

 

[Jim K]

Frank is correct. I apologize for the error.

Jim

 

[Frank Ettin]

Not to worry, Jim. This is not intuitive stuff.

 

[Bexar]

Frank..."Not to worry, Jim. This is not intuitive stuff."

That's what's bothersome about all these gun laws and most laws is the interpretation of reasonable...should have known...etc. Bothersome at best...very very expensive at worst.

Are they leaving us an out or them a way in with these open-ended obligations?

 

[Frank Ettin]

...That's what's bothersome about all these gun laws and most laws is the interpretation of reasonable...should have known...etc. Bothersome at best...very very expensive at worst.

Are they leaving us an out or them a way in with these open-ended obligations?

That was discussed in this thread, and specifically in this post:

...I haven't found a reported federal appellate case in which there was a prosecution solely on the basis of a reasonable cause to believe. But far more important I found a case that discusses the application of "reasonable cause to believe" language in the context of another, non-firearm statute.

In U.S. v. Saffo, 227 F.3d 1260 (10th Cir., 2000), the 10th Circuit considered an appeal from a conviction of a violation of 21 U.S.C. 841(d)(2), viz. (emphasis added):

(d) Offenses involving listed chemicals

Any person who knowingly or intentionally -

(2) possesses or distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance . . . shall be fined in accordance with Title 18 or imprisoned not more than 20 years . . . .

As stated by the court (at 1267):

...The first question raised by Saffo is whether the alternative "reasonable cause to believe" mental state in § 841(d)(2) is constitutionally sufficient to impose criminal liability....

In answering defendant's question, the court wrote (at 1267 -- 1269):

...We hold that it is.

"The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951); see also Morissette v. United States, 342 U.S. 246, 250-51, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1952). Congress has the authority to define the mens rea it deems appropriate for a specific crime. See United States v. McArthur, 108 F.3d 1350, 1354 n.8 (11th Cir. 1997) (citing Staples v. United States, 511 U.S. 600, 603-06, 114 S.Ct. 1793, 1796-97, 128 L.Ed.2d 608 (1994)); see also Liparota v. United States, 471 U.S. 419, 424, 105 S.Ct. 2084 2087, 85 L.Ed.2d 434 (1985) ("The definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute."). We should "avoid construing a statute to dispense with mens rea where doing so would 'criminalize a broad range of apparently innocent conduct.'" Staples, 511 U.S. at 610 (citing Liparota, 471 U.S. at 426).

The scienter standard of "knowing or having reasonable cause to believe" or one essentially identical to it is present in numerous federal statutes, many of which, like § 841(d)(2), impose felony punishments for violations. See e.g., 21 U.S.C. § 960(d)(3) (importing or exporting listed chemicals "knowing or having reasonable cause to believe" that the chemical will be used to manufacture a controlled substance); 18 U.S.C. § 842(h) (possessing, transporting, or selling explosive materials "knowing or having reasonable cause to believe" that the explosive materials were stolen); 18 U.S.C. § 922(d) (selling or otherwise disposing of any firearm or ammunition to any person "knowing or having reasonable cause to believe" that such person meets one of nine criteria); 18 U.S.C. § 231(a)(1) (teaching or demonstrating to another the use, application, or making of any firearm or explosive or incendiary device "knowing or having reason to know or intending" that it will be unlawfully employed for use in, or in furtherance of, a civil disorder that may obstruct, delay, or adversely affect commerce); 18 U.S.C. § 231(a)(2) (transporting or manufacturing for transportation in commerce any firearm, or explosive or incendiary device "knowing or having reason to know or intending" that it will be used unlawfully in furtherance of a civil disorder"); 18 U.S.C. § 1546(b) (using an identification document "knowing (or having reason to know)" that the document was not issued lawfully for the use of the possessor or is false); 18 U.S.C. § 2512(1) (manufacturing, distributing, possessing, and advertising devices for the surreptitious interception of communications "knowing or having reason to know" that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications).

Standards such as these have been described as imposing a sufficient mens rea requirement on a number of occasions. For example, in Gorin v. United States, 312 U.S. 19, 27-28, 61 S.Ct. 429, 433-34, 85 L.Ed. 488 (1941), the Supreme Court responded to a vagueness challenge to the Espionage Act, which used a scienter standard of "intent or reason to believe [that the information is to be used to the injury of the United States,]" by stating: "The obvious delimiting words in the statute are those requiring 'intent or reason to believe . . . .' This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established." See also United States v. Wuliger, 981 F.2d 1497, 1504 (6th Cir. 1992) (upholding the "reason to know" standard of 18 U.S.C. § 2511(1)(d) as a "constitutionally sufficient basis for criminal liability"); United States v. Green, 779 F.2d 1313, 1318-19 (7th Cir. 1985) (rejecting defendant's argument that the "knowing or having reasonable cause to believe" standard in 18 U.S.C. § 841(d)(2) sets up a standard of negligence or recklessness that is different from knowledge); United States v. Featherston, 461 F.2d 1119, 1121-1122 (5th Cir. 1972) (upholding "knowing or having reason to know" standard in 18 U.S.C. § 231(a)(1), and citing Gorin, 312 U.S. at 27-28); National Mobilization Comm. to End the War in Viet Nam v. Foran, 411 F.2d 934, 937 (7th Cir. 1969) (stating that the "knowing, or having reason to know or intending" language of 18 U.S.C. § 231(a)(1) is an intent requirement that "of course 'narrows the scope of the enactment by exempting innocent or inadvertent conduct from its proscription'" (citation omitted)).

In light of these authorities, we hold that the "knowing or having reasonable cause to believe" standard in 21 U.S.C. § 841(d)(2) imposes a constitutionally sufficient mens rea requirement. In so holding, we note that the standard involves a subjective inquiry that looks to whether the particular defendant accused of the crime knew or had reasonable cause to believe the listed chemical would be used to manufacture a controlled substance. This requires scienter to be evaluated through the lens of this particular defendant, rather than from the prospective of a hypothetical reasonable man. In this context, the "reasonable cause to believe" standard is one akin to actual knowledge. See State v. Smith, 123 A.2d 369, 64-65 (N.J. 1956) (stating, in the context of a discussion of a statute's "reason to believe" standard, that "[k]nowledge within the meaning of law . . . may consist of credible information on material facts and circumstances sufficient in content and quality to generate a reasonable belief.") (citation omitted). The "reasonable cause to believe" standard thus comports with the subjective "guilty mind" or "guilty knowledge" requirement for imposing criminal liability. As further stated in Smith's discussion of a "reason to believe" statutory standard:...

So we've really been looking at the statute(s) incorrectly. Thus the crime described in 18 USC 922(d) is not transferring a gun to someone you know or have reasonable cause to believe is a prohibited person -- whether or not he is a prohibited person. The crime is transferring a gun to a prohibited person when you have the requisite scienter/criminal intent, viz., knowing or having reasonable cause to believe that the transferee is prohibited.

 

[scythefwd]

At least 1 state requires you to take down info from a firearms owners ID.. IL does. I believe the last time i bothered to read the back you had to take down certain info and retain it for 5 years.

That said, Federal has no requirement but your state may. It will vary by state, so check those laws as well.

 

[AlexanderA]

As a practical matter, all the private sellers I have dealt with at gun shows have asked to see ID as proof that I was an in-state resident. They may or may not have copied down the information. This is not a federal requirement, but it's just common sense. These gun shows are crawling with ATF agents.

 

[Jim K]

I should not have made that error, since one of the specific purposes of GCA 68 was to ban residents of one state from buying a gun in another state and bringing it back to their own state. When I worked in a gun shop (not in NY) prior to 1968, it was common for NY state "snow birds" coming from FL to stop in to buy guns to take back to NY. In theory, they were supposed to register the guns once in NY. In theory.

One of the biggest buyers was the mayor of an upstate NY town who passed the guns around to his friends in return for political contributions and support. At that time, we were doing nothing illegal in selling those guns; what the Honorable Mayor was doing was illegal, but AFAIK, he never was arrested.

Jim

 

[Sniper66]

18 U.S. Code § 922 - Unlawful acts

(a) It shall be unlawful—

(5) for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides;

(x)
(1) It shall be unlawful for a person to sell, deliver, or otherwise transfer to a person who the transferor knows or has reasonable cause to believe is a juvenile—
(A) a handgun; or
(B) ammunition that is suitable for use only in a handgun.

So, if I am reading the above quote correctly, if I wanted to, I cannot legally buy 9mm ammo and bring it from the Tulsa Gun Show back to Kansas?? I don't have a 9mm, but plan to and had thought about buying some ammo. I hope that is not the law, but it appears to be.

 

[dogtown tom]

Sniper66

18 U.S. Code § 922 - Unlawful acts
(x)
(1) It shall be unlawful for a person to sell, deliver, or otherwise transfer to a person who the transferor knows or has reasonable cause to believe is a juvenile—
(A) a handgun; or
(B) ammunition that is suitable for use only in a handgun.

So, if I am reading the above quote correctly, if I wanted to, I cannot legally buy 9mm ammo and bring it from the Tulsa Gun Show back to Kansas?? I don't have a 9mm, but plan to and had thought about buying some ammo. I hope that is not the law, but it appears to be.

Are you 21?

 

[Midwest]

There is no longer a license needed to buy or sell ammo, that was done away with FOPA 86.

How does someone buy handgun ammo if they are under 21? I guess they have someone buy it for them. Some states you can get a carry permit at age 18, like Indiana. Those who are under 21 have to be able to get ammo for their carry gun somehow.

If a store does not have an FFL, but sells ammo. They have to still comply with the under 21 restriction?

.

 

[NavyLCDR]

18 U.S. Code § 922 - Unlawful acts

(x)
(1) It shall be unlawful for a person to sell, deliver, or otherwise transfer to a person who the transferor knows or has reasonable cause to believe is a juvenile—
(A) a handgun; or
(B) ammunition that is suitable for use only in a handgun.

So, if I am reading the above quote correctly, if I wanted to, I cannot legally buy 9mm ammo and bring it from the Tulsa Gun Show back to Kansas?? I don't have a 9mm, but plan to and had thought about buying some ammo. I hope that is not the law, but it appears to be.

Are you 21?

If the seller is not an FFL, the age limit is 18:
18 USC 922 (x)(5)
(5) For purposes of this subsection, the term “juvenile” means a person who is less than 18 years of age.

18 U.S. Code § 922 - Unlawful acts

(a) It shall be unlawful—

(5) for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides;

So, if I am reading the above quote correctly, if I wanted to, I cannot legally buy 9mm ammo and bring it from the Tulsa Gun Show back to Kansas?? I don't have a 9mm, but plan to and had thought about buying some ammo. I hope that is not the law, but it appears to be.

18 USC 922 (a)(5) only says firearm.