NICS participation map

[MCMXI]

I have an individual from Alaska who wants to purchase a rifle through my FFL here in Montana while visiting. The ATF is ok with this but based on their response below they shift the "burden of proof" onto the FFL holder (licensee). Montana state law doesn't seem to have an opinion one way or another re selling rifles to out of state residents so it's considered to be legal here. An FFL in MT can refer to the NICS participation map and sell a rifle/shotgun to residents of green or blue states without breaking federal or state laws. What isn't clear to me is whether or not other states have laws preventing over-the-counter sale of rifles to residents of other states.

https://www.fbi.gov/file-repository/nics-participation-map.pdf/view

https://www.atf.gov/qa-category/conduct-business#out-of-state-resident

May a licensee sell a firearm to a nonlicensee who is a resident of another State?
Generally, a firearm may not lawfully be sold by a licensee to a nonlicensee who resides in a State other than the State in which the seller’s licensed premises is located. However, the sale may be made if the firearm is shipped to a licensee whose business is in the purchaser’s State of residence and the purchaser takes delivery of the firearm from the licensee in his or her State of residence. In addition, a licensee may sell a rifle or shotgun to a person who is not a resident of the State where the licensee’s business premises is located in an over–the–counter transaction, provided the transaction complies with State law in the State where the licensee is located and in the State where the purchaser resides.

[18 U.S.C. 922(b)(3); 27 CFR 478.99(a)]

 

[dogtown tom]

I have an individual from Alaska who wants to purchase a rifle through my FFL here in Montana while visiting. The ATF is ok with this but based on their response below they shift the "burden of proof" onto the FFL holder (licensee). Montana state law doesn't seem to have an opinion one way or another re selling rifles to out of state residents so it's considered to be legal here. An FFL in MT can refer to the NICS participation map and sell a rifle/shotgun to residents of green or blue states without breaking federal or state laws.

The NICS map has nothing to do with the legality of selling a firearm. It merely shows which states contact FBI NICS directly for background checks and which states have a state level point of contact (or a combination in some cases).

Using the FBI NICS map to determine the legality of a nonresident long gun purchase is like using a measuring cup to determine your shoe size.

What isn't clear to me is whether or not other states have laws preventing over-the-counter sale of rifles to residents of other states.

Well, they most certainly do. California for example prohibits its residents from acquiring any firearm outside of California. Other states have restrictions on magazine capacity, other on "assault weapons".
That's why some dealers refuse to sell to nonresidents in an over the counter transaction.....they don't want to spend the time researching the minutiae of state laws.

 

[MCMXI]

The NICS map has nothing to do with the legality of selling a firearm. It merely shows which states contact FBI NICS directly for background checks and which states have a state level point of contact (or a combination in some cases).

And yet the map is what the big local gun stores use here to determine which out of state customers can buy and take delivery of a rifle or shotgun. The logic is that a NICS check in their own state is the same as a NICS check in MT.

 

[dogtown tom]

And yet the map is what the big local gun stores use here to determine which out of state customers can buy and take delivery of a rifle or shotgun. .

That is insane and not the least bit compliant with Federal law. Federal law requires the transfer of a firearm to a nonresident be legal in both the state where the dealer is located AND the state where the buyer is a resident. You can't determine that by looking at the NICS Participation Map.

The logic is that a NICS check in their own state is the same as a NICS check in MT.

That doesn't make any sense. The NICS check is conducted by the dealer making the transfer. Who he contacts for the NICS is determined by the state where HE is located, not where the buyer/transferee lives.


The legality of a transfer to a nonresident by a licensee and who the dealer contacts for a background check are wholly and completely unrelated.

 

[AlexanderA]

The underlying databases are the same, whether the FBI scans them or the state agency (for example, the Virginia State Police) scans them. If you get a "proceed" from any official point of contact, that means the person is clean.

I agree completely with dogtown tom. For example, I, as a resident of Virginia (which uses the State Police to conduct the NICS checks), have no problem buying a rifle from a dealer in Maryland (which uses the FBI as the contact point for long gun NICS checks). The Maryland dealer simply calls it in, following his usual procedure, and I'm good to go.

 

[bikemutt]

The NICS participation map shows Oregon as a full POC state, as a Washington resident I've bought more long guns in OR than I care to admit to, even at Big Box stores like Cabelas and Sportsman's Warehouse. WA on the other hand, is a POC state for handguns only. Never a problem, fill out the 4473, pay for the gun and the OR $10 BG check fee, done.

 

[MCMXI]

So it appears that some of the big stores here might be in violation of ATF regulations in addition to the laws of some states, and they may be turning away potential customers such as CO residents who can buy long guns in MT (SB 135). At this stage, the only states I know for sure that don't permit their residents to buy and take possession of a long gun in MT are CA and OR. There are supposedly 43 states that allow their residents to buy and take possession of long guns in non-contiguous states.

 

[dogtown tom]

So it appears that some of the big stores here might be in violation of ATF regulations in addition to the laws of some states, and they may be turning away potential customers such as CO residents who can buy long guns in MT (SB 135). At this stage, the only states I know for sure that don't permit their residents to buy and take possession of a long gun in MT are CA and OR. There are supposedly 43 states that allow their residents to buy and take possession of long guns in non-contiguous states.

It's not just if the buyer can "take possession of a long gun".........if the firearm is illegal in the buyers state of residence you cannot transfer it to him in your state.
Would the long gun meet the definition of "assault rifle" in Connecticut, Massachusetts, New Jersey, New York ?
The NICS Map doesn't tell you how each of those states defines "assault rifle".

I'm curious about why you think you can't sell a long gun to an Oregon resident. The only law I found was https://www.oregonlaws.org/ors/166.490 which states:

2015 ORS 166.490¹
Purchase of firearms in certain other states
(1) As used in this section, unless the context requires otherwise:
(a) "Contiguous state" means California, Idaho, Nevada or Washington.
(b) "Resident" includes an individual or a corporation or other business entity that maintains a place of business in this state.

(2) A resident of this state may purchase or otherwise obtain a rifle or shotgun in a contiguous state and receive in this state or transport into this state such rifle or shotgun, unless the purchase or transfer violates the law of this state, the state in which the purchase or transfer is made or the United States.

(3) This section does not apply to the purchase, receipt or transportation of rifles and shotguns by federally licensed firearms manufacturers, importers, dealers or collectors.

(4) This section expires and stands repealed upon the date that section 922(b) (3) of the Gun Control Act of 1968 (18 U.S.C. 922(b) (3)) and regulations pursuant thereto are repealed or rescinded. [1969 c.289 §§1,2,3,4]

That statute doesn't prohibit buying a rifle or shotgun in another "non contiguous" state.

 

[Frank Ettin]

So it appears that some of the big stores here might be in violation of ATF regulations .....

Not necessarily. Nothing in federal says a dealer must sell a long gun if the statutory conditions are satisfied. The law says only that a dealer may lawfully deliver a long gun to someone from another State if certain circumstances exist.

The Gun Control Act isn't violated by a dealer not selling a gun when he lawfully could.

 

[MCMXI]

Not necessarily. Nothing in federal says a dealer must sell a long gun if the statutory conditions are satisfied. The law says only that a dealer may lawfully deliver a long gun to someone from another State if certain circumstances exist. The Gun Control Act isn't violated by a dealer not selling a gun when he lawfully could.

Either you're misinterpreting what I wrote or I didn't do a good job explaining what I meant. There were two separate thoughts there. One re breaking ATF rules and two, re losing out on potential sales to CO residents who are permitted to purchase long guns in MT.

About three years ago I bought a Kimber Mountain Ascent and Vortex scope for a girlfriend from Hawaii. She came up to MT to hunt with that rifle, and while she was here I transferred it to her using 4473 form. After the trip she took it home to Hawaii and as per state law took it to HPD to register. She had a valid Hawaii long gun permit so I had no problem transferring the rifle to her since it's legal in MT and legal in HI. However, the officers at the police station were adamant that she should have had it shipped from me to an FFL in the state of HI which is total BS. There is nothing in the Hawaii gun regs stating that a resident of HI can't purchase a long gun out of state and so the ATF considers this to be a legal transfer. If she didn't have a long gun permit (good for one year) then she'd be in trouble but that wasn't the case. The bottom line is that many don't know the laws in their own state and some even try to push their anti-gun agenda despite having no legal right to do so.

 

[Frank Ettin]

....There is nothing in the Hawaii gun regs stating that a resident of HI can't purchase a long gun out of state and so the ATF considers this to be a legal transfer. If she didn't have a long gun permit (good for one year) then she'd be in trouble but that wasn't the case. ....

Nothing you've described constitutes a:

....violation of ATF regulations .....

Assuming you're correct and, notwithstanding an apparent error by some local police in Hawaii, the woman's acquisition of the rifle in Montana was done in a manner that satisfied Hawaiian law, she has a defense if charged with a violation of 18 USC 922(a)(3).

Note that the Gun Control Act does not preempt state law (18 USC 927):

No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.