Last week I received a call from a distressed client. He had just been subjected to a federal search warrant, and he was… and continues to be… terrified.
His bucolic life was instantly turned upside down. He will never be the same. What portends of his future remains in question, and the trauma of the unknown, coupled by the reality of “what might be”, has kept him awake since that first fateful knock at his door.
What is worse, the scope of this investigation has expanded to include others. Now multiple individuals have been subjected to those same sleepless nights.
The issue here is instructive to us all. It also highlights the idiocy of both our federal, as well as our state, gun laws.
Mr. X (that is what we will call him) has been a California resident for many years. A few years ago he decided to buy property out of state. The thought at the time was that he would become a permanent resident of that state and forgo all of the great benefits of being a California resident. He did, however, still have family here in the People’s Republic and was unwilling to completely abandon them. So he kept his Southern California home and spent roughly half the year out of state with the occasional soirées back to Cali.
In his new home state he obtained a driver’s license. He did not, however, surrender his California driver’s license, not that they asked him to. The “ask” never took place, and he felt no obligation to inform the apparatchiks in Sacramento that they no longer had their jurisdictional claws in him.
While in the new state he bought some guns… lots of guns. This was finally an opportunity to be able to legally purchase firearms manufactured after 2015 and not on the California state-approved list.
But, he still had that home in California, and family demands were pressing. So he traveled home and… because he could… he brought some of those guns back with him.
Pursuant to the 1968 Federal Gun Control Act, someone can only purchase a handgun in the state in which they are domiciled. One of the dispositive forms of evidence of intent to domicile is a driver’s license or state ID. Well, with that driver’s license, he bought those guns.
For a private party transfer to take place, both parties need to be residents of the state in which the transfer is occurring. Again, a driver’s license is dispositive evidence that the party is domiciled in that state.
So… back in California he decided to sell (primarily to friends) some of the guns he had acquired out of state. Since California has that idiotic roster, and an FFL cannot transfer guns to customers out of their inventory that are not on the roster, one of the ways California residents can get their hands on an “off-roster” gun is through a private party transfer.
To be sure, the transaction cannot take place in someone’s living room. Both parties need to go through an FFL that is on the California Centralized Firearms Dealers’ List.
So… Mr. X sought out the services of a local FFL and, over the course of the last few years, did occasional private party transfers of firearms.
This is where things get tricky… and stupid.
Federal law demands that someone who is in the “business” of transferring firearms be an FFL. What constitutes “in the business”, in my opinion, is arbitrary and capricious. If you have accumulated a collection of firearms and want to liquidate it… say for retirement money (yeah… the ATF website actually states that)… then you are “not in the business”. Buy a couple of guns and decide that you want to sell them to a buddy… you may now “be in the business”… especially if you make money on the transaction. (I remember talking to an ATF agent about a similar case and she was fixated on the profit the suspect made.)
Worse, when you buy a gun, you have to fill out a federal Form 4473. One of the statements you make on that form is that you are the actual buyer or transferee. If you are, in fact, buying it with the intent to resell then by checking this box you are effectively committing perjury.
The issue here… and it is a big issue… is what the buyer’s intent was at the time of the purchase. Good luck, State, in proving that intent. First off, intent to be domiciled is almost impossible for the State to disprove. Secondly… without some form of evidence the buyer was, in fact, buying the gun for a specifically identifiable individual does not prove that he did not intend to be the actual owner at the time of the purchase…
Here is the thing that really rubs me the wrong way though: Mr. X used an FFL for all transfers! This is not someone who was trying to “deal in illegal transfers” to prohibited persons, you know… like real criminals do. He knew the law required all gun transfers go through an FFL and he used a local FFL. He did not do this because he was stupid… he did it because he thought he was following the law.
The irony is that since he personally knew each of the buyers, and had he purposely violated the law and sold the guns outside the system… ATF would never have known and there would not have been an investigation and potential indictment.
Like I said, this has caused collateral damage as well. The FFL he used had its guns seized pursuant to a federal search warrant, and the gunsmith who is located near the FFL where many of the FFL customers bring their newly acquired firearms for modification work, had all of his customers’ guns seized. This means that regular Joes and Janes, who have absolutely no connection to this case, now have their firearms in the possession of ATF with no dates or timelines available for when they will be returned.
Mr. X is despondent. The FFL is terrified. The gunsmith is incredulous. The gunsmith’s customers are infuriated. For what? This is how the government keeps us safe?