The Gun Control Act (“GCA”) specifically authorizes federal firearms licensees (“FFLs”) to sell rifles and shotguns to unlicensed purchasers who reside in a state other than the state where the dealer is located. However, the statute specifically requires that the transactions comply with state law where the transaction takes place and the laws of the state where the buyer resides. Sellers are generally knowledgeable about laws of the state where they are located, but may not be fluent in the laws of the buyer’s state. This article addresses the hazards of selling long guns in violation of state law and highlights some of the types of state and local laws that apply to these sales.
From 1968-1986 the GCA allowed FFLs to sell rifles and shotguns to unlicensed purchasers who resided in states other than the state where the dealer was located only if (1) the transaction was a face-to-face, over-the-counter transaction; (2) the sale, delivery, and receipt fully complied with the legal conditions of sale in the seller’s state and the buyer’s state; and (3) the purchaser resided in a “contiguous state.” The GCA was amended by the Firearms Owners Protection Act of 1986 to allow licensees to sell rifles and shotguns to residents of any state as long as the first two conditions above are satisfied. The statute in question, 18 U.S.C. § 922(b)(3), further provides that FFLs shall be presumed, in the absence of evidence to the contrary, to have had actual knowledge of the state laws and published ordinances of both states.
The term “published ordinance” is defined in the GCA as any published law of any political subdivision of a state which the Attorney General determines to be relevant to the enforcement of the GCA and which is contained on a list compiled by the Attorney General, published in the Federal Register, revised annually, and furnished to each FFL. ATF revises and updates its publication State Laws and Published Ordinance-Firearms every 2-3 years and recently published its 33rd edition on the ATF website (https://www.atf.gov/firearms/state-laws-and-published-ordinances-firearms-33rd-edition) (last visited August 26, 2019). This version is current through March, 2019. The publication is broken down by state and includes provisions of each state code and local ordinances relevant to the sale, transfer, receipt, possession, and carrying of firearms.
Importance of Compliance with State Law
One of the principal purposes of the GCA was to assist the states in enforcing their laws. The GCA accomplishes this purpose by channeling interstate and foreign commerce through FFLs and requiring FFLs to comply with state law in conducting firearms transactions. Section 922(b)(3) furthers this purpose by allowing nonlicensees to purchase rifles and shotguns from FFLs in any state, but requires that the seller abide by state law relating to the sale, delivery, and receipt as if the transaction were occurring in the buyer’s state of residence.
FFLs who sell rifles and shotguns to nonresidents in violation of section 922(b)(3) are running two risks, as follows:
- If ATF determines that a particular transaction violated section 922(b)(3) and was a “willful” violation, ATF may revoke the seller’s license. To be “willful” ATF must have evidence the seller had knowledge of the state law in question and acted with intent to violate that requirement with indifference or reckless disregard thereof. If the state law requirement was included in ATF’s publication State Laws and Published Ordinances, the FFL will be presumed to have actual knowledge of the requirement. Violations of section 922(b)(3) are one of the most frequently cited by ATF during annual compliance inspections.
- FFLs who knowingly violate a state or federal statute applicable to the sale or marketing of firearms may lose their immunity from civil liability under the Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901-7903. Sale of a rifle or shotgun in violation of 18 U.S.C. § 922(b)(3) would, if committed knowingly, appear to be a violation of federal law relating to sale of a firearm. Such a violation could be used by plaintiffs in a civil liability action whether or not ATF cites it against an FFL during a compliance inspection.
Legal Conditions of Sale
As stated above, section 922(b)(3) requires FFLs selling rifles and shotguns to nonresidents to ensure that sale, delivery, and receipt fully comply with the legal conditions of sale in the seller’s state and the buyer’s state. This means that the seller must make a reasonable effort to determine the relevant “legal conditions of sale” in the buyer’s state. The starting point for this inquiry should be ATF’s compilation of state laws and local ordinances on the agency website. These are the legal provisions the FFL is presumed to know and those that ATF investigators will consult in determining the legality of a nonresident sale. Reviewing these provisions can be a daunting task, as some of the state law summaries are over 50 pages long. Questions about particular provisions of state law may be raised with state authorities (generally the state police) or the FFL’s local ATF office. Licensees may also wish to consult with qualified counsel.
Some of the more common “conditions of sale” include the following:
- Age restrictions. A number of states (e.g. Florida) recently raised the age for purchasing any firearm (including a rifle or shotgun) to 21.
- Waiting periods. A number of states (e.g. Rhode Island) impose a waiting period before a firearm may be delivered to a purchaser.
- Registration requirements. States and local jurisdictions may impose registration requirements on firearms, including rifles and shotguns. An example is the District of Columbia, which requires that all firearms be registered with the D.C. Metropolitan Police.
- Firearms owners identification cards. States (e.g. Illinois) may impose a requirement that residents present a firearms identification card or other authorization before purchasing a firearm from an FFL.
The above list is for purposes of example only and should not be read as a complete list of state laws that are “legal conditions of sale” within the meaning of 18 U.S.C. § 922(b)(3).
FFLs who sell rifles and shotguns to nonresidents must make every effort to ensure the transaction complies with the state and local law where the premises are located and the laws where the buyer resides. ATF’s State Laws and Published Ordinances should be consulted to determine the legal conditions of sale, and the FFL must sell the firearm in accordance with those conditions. Licensees who fail to comply with all relevant state laws risk ATF citations and, in the event the firearm is misused, potential civil liability.
This bulletin is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this bulletin does not establish an attorney-client relationship.
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