Understanding “private gun sales” laws
What are the legal restrictions on “private gun sales”?
Private individuals in Florida may legally buy, sell, gift, or otherwise transfer firearms to another private individual in Florida. However, when doing so, careful attention needs to be paid to not violate the laws regulating these transactions. So what are the legal restrictions? First, the ATF website has an informative pamphlet entitled “Best Practices: Transfers of Firearms by Private Sellers” located on its website. This pamphlet is a must-read before entering into “private gun sales”.
Under federal law, an unlicensed (non-dealer) may only “transfer” a firearm to another unlicensed person in the same state. This means that if a person is a resident of Florida, federal law prohibits the person from directly (not through a dealer) selling or transferring the firearm to a resident of another state. Federal law makes these transactions illegal from both the buyer/transferee and seller/transferor perspective. It is illegal for a private individual to transport into or receive within his own state a firearm which was purchased in another state from a private seller. See 18 U.S.C. §922(a)(3). Likewise, it is illegal for a private seller to sell or deliver a firearm to an individual whom the private seller knows or has reason to believe is not a resident of the seller’s state. See 18 U.S.C. §922(a)(5).
Bob is visiting his best friend from high school, Jim. Ten years ago after high school was over, Bob moved to Nebraska from Florida. One night, Bob and Jim decide to go to the shooting range during Bob’s trip back to Florida, and Bob borrows one of Jim’s handguns. After shooting at the range, impressed with both the feel and action of Jim’s handgun, Bob asks Jim if he could buy it from him. Since they’ve been friends for so many years, Jim says yes, and even offers him a good price for the transaction. Before leaving to go home to Nebraska, Bob pays Jim and packs his new handgun.
Has Jim committed a crime in selling the handgun to Bob? Has Bob committed a crime in purchasing the handgun from Jim? The answer to both questions is yes! Under federal law, Bob is not allowed to privately purchase a handgun in another state and transport it back to his home state. Likewise, Jim is not allowed to sell a firearm legally to a person he knows lives in another state. In this example, both Bob and Jim know that Bob is not a Florida resident—the place where Jim has sold his firearm. Bob has committed the crime of willful receipt of a firearm from an out-of-state unlicensed person while Jim has committed the federal crime of willful sale of a firearm to an out-of-state resident. See 18 U.S.C. §924(a)(1)(D). The penalties for these crimes include jail time of up to 5 years and/or a fine of $250,000!
What if the situation is less obvious? Let’s take a look at an example where “reasonable cause to believe” comes into play during a private gun sale.
Frank, a Florida resident, recently posted his Glock 19 for sale on an internet message board in Florida. He receives an email from a person named Ted who would like to buy the handgun. Frank and Ted agree, via email, on a purchase price and arrange to meet at a place in Florida one week later to facilitate the transfer. When Ted pulls up in his 1978 Ford LTD Wagon, Frank notices the car’s Tennessee license plates. Nevertheless, Frank shrugs and sells Ted the gun anyway without going through any of the formalities of a bill-of-sale, or asking for identification. Two weeks later, Frank finds himself at an FBI field office in Houston answering questions about a shooting that took place with his (former) Glock 19.
Is Frank in trouble? It is highly likely. Although Frank is not the center of the shooting investigation, Frank is probably the center of an investigation for illegally selling the firearm to an out-of-state resident under federal law.
Selling Across State Lines
To learn more about private gun sales or gifting a firearm across state lines, read the blog post by Danielle Wall – Selling Firearms across state lines.
Private Gun Sales: Don’t Knowingly Sell To The “Wrong” People!
A private individual may sell a firearm to a private buyer in the same state so long as the seller does not know or have reasonable cause to believe that the person purchasing the firearm is prohibited from possessing or receiving a firearm under federal or state law. See 18 U.S.C. §922(d).
Gordon and Josh are friends and Josh tells Gordon that he has just attempted to buy a gun from a local FFL and that he was denied because he was disqualified for some reason under federal law (something about a conviction or restraining order or drug use or psychiatric problems—Josh was too mad to remember!). Regardless, Gordon says, “No problem, I’ll just sell you one of mine,” and he does.
Gordon has just committed a federal crime, because he knew (or at least had reasonable cause to believe) that Josh was prohibited from purchasing a firearm under the law.