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Legal Basics

Before you read this article, please READ MY DISCLAIMER at the bottom of the page.

Please do not just take my word, or anyone else’s word, about any of these legal issues. I AM NOT A LAWYER and THIS ARTICLE IS NOT LEGAL ADVICE. You should look up your own state laws and do your own research about how those laws apply to you. If you do not understand anything, ask a qualified expert in your own state law to explain the statutes to you. This stuff is way too serious to simply trust the word of some chick on the ‘net. LOOK IT UP YOURSELF.

Let me start out by saying that there is absolutely no way I can tell you exactly what is legal in your jurisdiction, and what is not. There are roughly a gajillion federal gun laws in America, with another sixty kazillion state, county, and municipal laws beneath those. Every time Congress meets, every time your state legislature is called to session, every time some bureaucratic committee needs to interpret and refine existing regulation, the rules are likely to change.

My purpose in writing this article is simply to give you a very general overview of how to buy a gun, and then point you to places where you can find the specific information you need.

About the BATFE

At the federal level, the sale and purchase of firearms is regulated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE). This federal bureau has a long history. Originally created in 1886 underneath the financial department which later became the IRS, bureaucratic predecessors of the BATFE were responsible for enforcing Prohibition law in the 1930′s. These were the famous “revenooers” of moonshine lore.

For most of the past century, the bureau, which was then referred to as the ATF, was a separate department under the authority of the US Department of the Treasury. After the terrorist attacks of September 11, 2001, the bureau was transferred to the newly-created Department of Homeland Security. At the same time, the old Bureau of Alcohol, Tobacco, and Firearms (ATF) became the new Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE). The bureau was given somewhat expanded powers and responsibilities which the new name reflected, but its responsibility to oversee tax collection on alcohol and tobacco products remained with another department within the US Treasury.

If you have a question about federal firearms laws, and cannot find the information anywhere else, you can query the BATFE. Before sending a direct letter, be sure to read the BATFE’s FAQ page. Remember that the BATFE regulates only federal firearms laws; your state or local laws may prohibit activities which are legal under federal law.

FFLs (Gun Stores)

Under federal law, new firearms may only be sold by businesses which possess a Federal Firearms License (FFL). These businesses are referred to in bureaucratic style as FFL dealers. The rest of us call them “gun stores.”

Used firearms may also be bought and sold by FFL dealers. Not all FFL dealers sell used guns, but many do.

Although FFL dealers are licensed by the federal government, they are also subject to many local laws and regulations. They must possess business licenses, fit within zoning requirements (sometimes very onerous ones), and may only offer guns for sale which are legal within the state, county, and city where they operate. Additionally, they must observe any federal, state, and local  laws, regulations, and rules which may apply to the purchase. If a waiting period applies to your purchase, it is the FFL dealer’s responsibility to inform you of its duration and to enforce it.

Your FFL dealer will ask to see legal proof of your identity whenever you purchase a firearm. He may also ask to see other personal information, at his discretion.

In some states, in addition to simple identification such as a driver’s license, FFL dealers are required to ask the buyer to show either state- or locally-issued proof  that the buyer is authorized to purchase a firearm. This may be a long-term, renewable license similar to a driver’s license, or it may be a limited-time permit good for a single purchase. If this is the case in your state, your local FFL dealer will be able to tell you how to obtain the permission your purchase requires.

Some local jurisdictions require buyers to purchase firearms locks, show proof that they own a gun safe, or pass a test before they can buy a gun from an FFL. If you are in doubt about any of these local requirements, your FFL dealer should be able to give you more information, or at least tell you where to find more information, about your local laws. If your dealer appears unable or unwilling to do this, walk away from the sale.

When you buy a gun from an FFL dealer, the dealer has a very specific set of rules and regulations he must follow. The federal paperwork requirements are very stringent and allow the dealer very little discretion. You will need to show photo ID and fill out a Form 4473. The dealer must keep this form on file at the business for just about forever, and show it to the BATFE upon request. If the FFL later goes out of business, the BATFE will take possession of all the 4473 Forms on the premises.

If you are purchasing a handgun, the FFL will call in your personal information to a federal clearinghouse called the National Instant Criminal Background Check System (NICS). After giving information about the purchase to the NICS, the dealer will receive one of three possible answers from NICS: an approval, a delay, or a deny. If the sale is approved, the FFL dealer is given an authorization code which he will note on your paperwork. Delays happen for a variety of reasons which may not be immediately obvious to the buyer. Delays do not always result in a denial, so if your purchase is delayed, don’t despair. The dealer will tell you when you can come back to finish processing your paperwork. A denial means something has gone badly wrong somewhere. If your sale is denied, you will want to find out the reason for it and, if justified, fight to appeal the denial.

Many states require waiting periods when purchasing a handgun. If this is the case, your FFL dealer will expect you to complete all paperwork and pay in full before the waiting period begins. When the waiting period is over, you will then go back to the dealer to pick up your new firearm.

Buying a gun for yourself from an FFL dealer sounds very complicated on paper, and the dealer does work under very strict rules. But from the buyer’s end, it is not so complicated. You walk in, select the gun you wish to purchase, and then let the dealer guide you through the paperwork and legal requirements.

Private Party Sales

While new firearms may only be purchased through an FFL dealer, in some but not all states, private sales of used firearms are legal. This means that in some states, an ordinary citizen may lawfully sell a used gun to another ordinary citizen within the same state.

There are many federal, state, and local regulations which apply to private party sales. Whether you are the buyer or the seller, it will be your responsibility to find out which laws apply to your sale, and to comply with those laws.

Because firearms laws are complicated and punishments for breaking them are very severe, I really recommend that your very first firearm purchase should be made through an FFL. This is especially true if you are buying a handgun, because handguns especially are often subject to additional laws at the local level.

Gun Shows (and that famous “loophole”)

Many guns shows feature two types of sales.

Most common are sales run from tables set up by an FFL dealer. These are manned by folks from the local gun store who packed up their wares and brought them down to the gun show for buyers to see. FFL dealers at gun shows must comply with every single one of the same federal, state, and local laws which apply to them when they operate out of their regular places of business. This includes background checks, waiting periods, and whatever extra purchases or taxes are required by your local politicians.

If private sales are legal in your state, and if the gun show’s management allows, there may also be private sellers at the gun show.  Private sellers at gun shows must comply with every single federal, state, and local law which applies to all other private sales within your jurisdiction. If private sales are not legal in your state, county, or city, there will be no private sellers at your local gun show.

The famous “gun show loophole” so beloved of anti-firearms activists is an attempt to confuse the public into believing that the already incredibly complicated laws about firearms purchases somehow do not apply to firearms which are sold in the convenient setting of a gun show. This is most emphatically not true. If you decide to purchase a firearm from a gun show, you must still obey every firearms law which would apply if you bought the firearm anywhere else.

Online or Interstate Gun Sales

In most states, it is legal to purchase a gun from someone who lives in a different state than you do. But such sales must go through an FFL dealer. Remember that some  firearms which are legal in a neighboring state may not be legal in your home state. Do your research before plunking down any money!

Except where local laws prohibit it, it is legal to purchase a long gun in person from an out of state FFL dealer without first transferring the gun to an FFL dealer in your home state. Apart from that very narrow exception, any firearm purchased from out of state must be shipped to an FFL dealer in your home state. It is not legal to ship a firearm to a private individual in another state who does not possess an FFL. 1

The way an interstate sale usually works is that the buyer and the seller agree on terms. Then each must find an FFL dealer in her own home state. The seller takes the firearm to her FFL dealer. That dealer makes certain the sale is legal at the selling end, and then ships the firearm to the buyer’s FFL dealer. Occasionally, if it is legal in both the buyer’s and the seller’s state, the seller may be able to ship directly to the buyer’s FFL dealer and avoid using an FFL at the selling end.

When the buyer goes in to pick up her purchase from her own FFL dealer, the buyer’s FFL dealer makes certain the sale is legal on the buying end. The buyer must comply with all the other legal requirements of buying a gun from an FFL dealer: 4473 Form, NICS check, state-issued permission slips, additional required purchases or taxes, and any other local requirements that would apply if she were simply purchasing the firearm from the FFL dealer directly.

FFL dealers typically charge anywhere from $20 to $50 for this service. When looking for a deal online, remember to consider the additional costs of shipping and transfer fees.

Buying a Gun for Someone Else

The rules about purchasing firearms for other people are very strict and very confusing. If you just assume that such purchases are illegal unless you have specific information proving otherwise, you won’t be too far from wrong.

First, remember the most important rule: It is NOT legal to purchase a firearm for someone who is prohibited by law from owning a firearm. Purchasing a firearm on behalf of someone who cannot legally own the firearm is called a “straw purchase,” and the legal penalties for doing so can be very severe. If the other person gives you money to buy the gun simply so that your name will be on the FFL paperwork instead of theirs, you are flirting with straw purchase territory. Don’t risk it. 2

Very generally speaking, it is legal to purchase firearms for someone in your immediate family. Standard disclaimers apply, especially the bits about “varies from state to state” and “know your own local laws.” Remember that handguns are often subject to additional regulations above and beyond those that affect rifles. If you live in a state where a handgun purchase permit is required you may need to transfer title officially through the local cop shop, but most states do not require this.

The laws regarding children and firearms ownership are even more complex than the ones governing a basic gift purchase. If you want your youngster to own a gun, you’re pretty much on solid ground if you purchase the firearm yourself and retain possession yourself until the child reaches legal maturity. Whether the child can directly own or possess the firearm without your immediate presence is a much more local question. Some states permit children of any age who have parental permission to possess and shoot firearms under the supervision of any competent adult, while others require specific parental supervision. Still others set age limits for specific activities, with or without parental supervision.

In most states, young adults may purchase rifles and shotguns for themselves when they reach 18 years old, or handguns after age 21. Some states permit 18- to 21-year-olds to own and possess handguns, but federal law bans these young adults from directly purchasing their own handguns.

In most states, it is legal to purchase a firearm for yourself and then later sell it to someone else. For safety’s sake, unless you really know the ins and outs of the law, and are also prepared to vouch for the character of the person who wants to buy your gun, your best bet is to sell it on consignment through a licensed FFL dealer.

Where to Find More Information

In most states, if you want to know more about firearms laws, you may contact your state Attorney General’s office. Some states, especially the ones which have very restrictive laws, will also have at least one agency, and sometimes multiple agencies, responsible for writing and enforcing regulations about firearms. It is worthwhile to discover what these departments or agencies are in your state. A good place to start your research about this is Handgun Law dot US.

There are also many good books, articles, and web pages about this very complicated topic. See the Legal Resources page for more information.

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Footnotes

  1. Except for Curios & Relics — a legal term meaning really ancient firearms which are collector’s items. These types of firearms are not the focus of this website. The rules for C&R firearms are totally different in nearly all cases.
  2. On a closely related note: if your new schmoopie wants you to buy a firearm for him, look him in the eye and ask him why he does not purchase it himself. The answer might be benign, but don’t take anything on faith. It’s not worth risking jail over.