Shipping guns to myself?

[Elkins45]

What if the OP moved back to Nevada temporarily? Or obtained residence in Nevada as a second state of residence while still maintaining the other home? Are there legal definitions of how long someone has to have physically been in a state to be considered a 'resident?'

I know there are things you are often required to show to demonstrate residency, such as phone or electric bills, but how does that work if you are sharing a house with a roommate and the bills are in their name? Could the OP move into the house where his guns are as a boarder or roommate? Or does he need to have a job in Utah too meet the residency requirement? That doesn't seem likely because retirees spend six months in Florida all the time and they are surely considered residents if they own condos there, aren't they?

 

[TimSr]

We're not talking about storing something on someone's property. We're talking about giving someone actual, physical possession, i. e., dominion and control, of something. And that is a transfer as the word "transfer" is defined.

You don't know that. Neither do I. Nobody asked how they were being stored, and what the agreement was. That was my point.

If the guns are in a locked storage locker or locked safe or case or sealed package to which no one else has access, one can at least argue that there is no transfer because no one else has physical possession, i. e., dominion and control or purposeful use.

Exactly the argument I'm making. There is no federal law that keeps him from going back, in person, and recovering his firearms from secured storage, and taking them to where he now resides unless he "transferred" them to somebody else before he left. People relocate ahead of their property all the time. The burden of proof is on the feds to show that he gave possession, care, and access to his buddy, in order for a "transfer" to have taken place, not just an agreement for temporary storage space. We don't know the details, and you are presuming a transfer took place.

I guess the moral to the story is that if you are going to move, can't take your guns right away, and want to avoid any confusion, put your guns in a 3rd party storage unit secured with YOUR lock, where the stored contents aren't specified, so that it cannot be construed as having transferred custody of them to someone else by overzealous feds with an overactive imagination. I know of no federal laws that specify any length of time after changing your address, that your firearms have to be moved along with you, if ever. Otherwise they would be very busy busting active duty military personnel who can't take their personal arms everywhere they move to.

 

[Frank Ettin]

What if the OP moved back to Nevada temporarily? Or obtained residence in Nevada as a second state of residence while still maintaining the other home? Are there legal definitions of how long someone has to have physically been in a state to be considered a 'resident?'....

For the purpose of the Gun Control Act of 1968, "State of residence" is defined as (27 CFR 478.11, emphasis added):

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). 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.

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.

We're not talking about storing something on someone's property. We're talking about giving someone actual, physical possession, i. e., dominion and control, of something. And that is a transfer as the word "transfer" is defined.

You don't know that. Neither do I. Nobody asked how they were being stored, and what the agreement was. That was my point.

The OP said nothing to support the assumption that he did anything but leave his guns in the physical possession of his Nevada friend. He has had ample opportunity to clarify that point.

If the guns are in a locked storage locker or locked safe or case or sealed package to which no one else has access, one can at least argue that there is no transfer because no one else has physical possession, i. e., dominion and control or purposeful use.

Exactly the argument I'm making. There is no federal law that keeps him from going back, in person, and recovering his firearms from secured storage, and taking them to where he now resides unless he "transferred" them to somebody else before he left....

And we have no information to support an inference that the OP did that.

 

[Jim K]

Frank Ettin wrote:

"First, the word "transfer" means what it means; and it absolutely is not limited to a change in ownership. It has to do with a change of possession, and possession is about physical control, not legal title."

"What you might believe or you might doubt is absolutely worthless when trying to predict how a court would apply the law."

Interesting. Courts following that interpretation would pretty well shut down gun shows as well as sending thousands of people to prison. No one, even a dealer, could let an out-of-state resident even handle a gun, and even a state resident could not do so without going through a formal transfer (4473, etc).

Do you know of anyone actually prosecuted for letting an out-of-state friend use a firearm in a lawful manner or any dealer prosecuted for letting a customer examine a gun without going through a formal transfer of ownership?

Jim

 

[danez71]

Jim K, that's been addressed on the 1st page, twice.

 

[Frank Ettin]

...Do you know of anyone actually prosecuted for letting an out-of-state friend use a firearm in a lawful manner or any dealer prosecuted for letting a customer examine a gun without going through a formal transfer of ownership?

Can you cite any legal authority challenging my interpretation? Apparently all you have to offer in rebuttal is that things don't make sense to you.

...Courts following that interpretation would pretty well shut down gun shows as well as sending thousands of people to prison. No one, even a dealer, could let an out-of-state resident even handle a gun, and even a state resident could not do so without going through a formal transfer (4473, etc)....

Again, the statutes say what they say, and if this is the best you can offer, it's sure not much. What legal authority can you offer to challenge the plain language of the statutes and the plain meanings of the words used?

Part of your problem is that you don't bother to do the research.

Let's take a look at a dealer letting someone from another State examine a gun. One of the statutes material to this discussion here, 18 USC 922(a)(5) prohibits anyone except a dealer from transferring a gun to someone who is a resident of another State.

However, if one is a dealer, he is governed by 18 USC 922(b) which deals with "selling or delivering." The rules for a dealer are different from those for someone who is not a dealer.

Also, someone who is not a dealer may under 18 USC 922(a)(5) loan a gun to someone from another State temporarily for a lawful sporting purpose. Whether examining a gun is a "sporting purpose" the "loan" for several minutes to allow examination is certainly temporary.

In addition there is an overarching principle in the law, de minimis non curat lex, as thus described:

The law does not concern itself with trifles; - a principle of law, that even if a technical violation of a law appears to exist according to the letter of the law, if the effect is too small to be of consequence, the violation of the law will not be considered as a sufficient cause of action, whether in civil or criminal proceedings.

Furthermore, the statutes I have cited apply on their face directly to the situation under discussion here, viz.:

1. Fred, a resident of State A leaves his guns in the custody of John who is also a resident of State A in a manner which gives John physical access to and possession of those guns.
   
   
2. Fred leaves State A, makes a new home for himself in State B, and is now no longer a resident of State A, but is rather a resident of State B.
   
   
3. Fred would now like to reacquire possession of the guns he left with John.
   
   
4. And, as discussed, the way to accomplish that in a manner that complies with 18 USC 922(a)(3) and 18 USC 922(a)(5) would be for John to deliver or ship the guns to an FFL in State B who would then transfer them to Fred on a Form 4473 (and in accordance with any other formalities required under the laws of State B).

Different fact situations are different, and those statutes, or different provision of those statutes, or other laws, and/or any combination thereof might yield different results.

 

[danez71]

Frank,

Do you have any thoughts as to this.....

In CA for example, I believe it's still legal to loan a gun not exceeding 30 days.

That introduces a reference point of what could be considered a "loan" and not necessarily a "transfer" (acknowledging State, not Fed).


If a person was moving to another state and was making several trips to do it..... I could see it rationalized that a 30 day loan is no different than a 30 day storage.


Do you have any thoughts on that?


Sorry if this I'd too much of a thread drift. I'm just trying explore what may or may not be ....relevant?

 

[Frank Ettin]

In CA for example, I believe it's still legal to loan a gun not exceeding 30 days.

That introduces a reference point of what could be considered a "loan" and not necessarily a "transfer"...

It's not that a loan isn't a transfer. A loan is a transfer. But a loan which satisfies the applicable rules is a permitted transfer, subject to those rules applicable to loans.

...If a person was moving to another state and was making several trips to do it..... I could see it rationalized that a 30 day loan is no different than a 30 day storage....

I'm not sure exactly what you mean here. Let me try something, and you can let me know if I've understood you.

We're residents of California, and I'm moving to Arizona. I plan to make multiple trips to move all my stuff and expect to take about thirty days to do it. So I "loan" you my guns. Now over the next thirty days I make a bunch of trips between California and Arizona, and each trip I pick up a few more guns from you and take those guns to Arizona.

I'd argue that under those facts, I'm still a resident of California for the purposes of GCA68 during the time I'm schlepping back and forth to get my stuff moved. And if that flies, I don't have an interstate transfer problem under federal law.

I think the argument is a decent one as long as I'm talking about an overall reasonably short interval (like 30 or so days) and multiple and fairly frequent trips (say once or twice a week during) to get my stuff moved. Until at least the bulk of my worldly goods are in my new home in Arizona, I really haven't settled there.

That argument begins to break down as the interval gets longer and my trips to get my stuff become less frequent. Certainly no one will buy the argument that I haven't settled in Arizona if my last trip to California was two years ago, and I'm apparently in no rush to go back to collect my lava lamp and DVD of Weekend at Bernie's II.

When the facts don't continue to support my argument that I'm still a resident of California, that "loan" analysis falls apart. I now have a problem with the loan provisions under federal law. So with regard to loans under GCA68, let's look at the applicable statutes again:

• 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; except that this paragraph shall not apply to
  
  

  (A) the transfer, transportation, or delivery of a firearm made to carry out a bequest ..., and
  
  (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;​

  ..

  
  
• So under federal law a resident of one State may loan a gun to a resident of another State, but only temporarily and only for a lawful sporting purpose.
  
  
  • Temporary means:

    : continuing for a limited amount of time : not permanent
    
    : intended to be used for a limited amount of time

    
    
  • Sporting means (in this context):

    ...of, relating to, used, or suitable for sport...

    
    
  • Purpose means (in this context):

    : the reason why something is done or used : the aim or intention of something

  
  
• So a court is likely to look at the "temporary loan for a lawful sporting purpose" exception to the prohibition on interstate transfers to apply when a gun is loaned so that the person it's been loaned to can engage in a specific sporting activity (i. e., a hunt, a competition, etc.) of limited duration. "Temporary" would refer to the duration of that activity. Such an interpretation would be consistent with the common meanings of the words used in the statutes and the underlying purpose (controlling interstate transfers of firearms) of GCA68.
  
  
• And while you may go to another State where (under 18 USC 922(a)(5)) a friend may loan you a gun to, for example, go target shooting together, or an outfitter may rent you a gun for a guided hunt, if you were to take the gun back to your home State with you, you would be violating 18 USC 922(a)(3), which has no applicable "loan" exception. Since there is no applicable loan" exception in 18 USC 922(a)(3), a loan of a firearm may not cross state lines to the borrower's State of residence.

So once under the applicable facts I'm a resident of another State, the "loan" argument doesn't help, and I'll need to go through an FFL in my new home State to get any guns left behind.

 

[danez71]

That's exactly what I thought!

Thank you Frank. Your graciousness is appreciated.

 

[Elkins45]

Thank you Frank. Your graciousness is appreciated.

Seconded. I appreciate your efforts as well. I have learned useful things in this thread.

 

[joem1945]

Reading post # 6 it looks like he is caught in a catch 22. Looks like it will be terribly expensive to get his property back.

 

[Frank Ettin]

Reading post # 6 it looks like he is caught in a catch 22. Looks like it will be terribly expensive to get his property back.

It is what it is, and yes, it will be expensive and a nuisance for the OP to now take possession of those guns.

This also illustrates the utility of understanding the law and doing some research. This subject has previously been generally touched upon on THR here, here, and here. It's also been discussed on other boards.

A solid understanding of the application of the GCA 68 to this situation would have allowed the OP to have better prepared for his move and to have made arrangements which would have made it easier and much cheaper to get the guns.

 

[Gun Master]

Frank Ettin, thank you for your enlightening information.
Is it proper to ask your opinion of the possibility of at least ammending some of the federal laws, rules, and regulations regarding firearms restriction?

 

[Frank Ettin]

.....Is it proper to ask your opinion of the possibility of at least ammending some of the federal laws, rules, and regulations regarding firearms restriction?

It is indeed. Right now I'm away from home on a mobile device (we're putting on our monthly Basic Handgun class). I'll respond either very late tonight or tomorrow.

 

[Frank Ettin]

....your opinion of the possibility of at least ammending some of the federal laws, rules, and regulations regarding firearms restriction?

Looking just at the federal law relating to interstate transfers, as under discussion in this thread, I think the chances of meaningful, legislative change are pretty slim.

The result of restrictions on transfers of guns, such as those on interstate transfers set out in the GCA68, is essentially to force, to the extent possible, transfers of guns from one person to another to go through an FFL with all the associated folderol, like a background check. Thus there are very few exception under GCA68 for such transfers, and most of the time a resident of one State transfers possession of a gun to a resident of another, it will need to go through an FFL. That's really what this is all about.

The federal law applies to interstate transfers. A few States have laws requiring that intrastate transfers (with some exceptions) go through an FFL or include some sort of background check or vetting of the transferee. And thus these state laws are analogs of federal law.

Political pressures has been increasing to adopt these sorts of restriction in States which previously did not regulate intrastate transfers by private parties.

Washington State recently adopted a Universal Background Check (UBC) law by initiative (popular vote). The initiative measure, I-594 won by 20% -- a substantial majority as these things go. It generally requires that all intrastate transfers of a gun (with few exceptions) go through an FFL, and it defines transfer very broadly.

And shortly after the Washington debacle, the Oregon legislature passed its own UBC law.

Given the pressure to thus extend background check requirements, the political climate doesn't look very favorable for a rollback of federal law. And right now a lot of our RKBA advocacy efforts are too focused on merely holding back the spread of these laws.

 

[Gun Master]

Thanks, pretty dismal, but not impossible.