Can You Lend a Firearm to Another Person under Federal Law?

From time to time, individuals inquire as to whether they can lend a firearm to a friend. While state firearms laws vary on this subject (for instance, in Pennsylvania an individual can lend shotguns and rifles but not handguns, unless the person receiving the handgun has a license to carry firearm), Federal law specifically allows one to lend a firearm to another individual, provided the individual is not prohibited.

Pursuant to 18 USC 922(a)(5), it is unlawful for “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…(B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;”

Does Federal Law allow you to lend a firearm to someone?

Does Federal Law allow you to lend a firearm to someone?

However, pursuant to 18 USC 922(d),

It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; (2) is a fugitive from justice; (3) is an unlawful user of or addicted to any controlled substance…; (4) has been adjudicated as a mental defective or has been committed to any mental institution; (5) who, being an alien— (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa…(6) who has been discharged from the Armed Forces under dishonorable conditions; (7) who, having been a citizen of the United States, has renounced his citizenship; (8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child…(9) has been convicted in any court of a misdemeanor crime of domestic violence.

So, what does all of this mean? Under Federal law, an individual may loan or rent a firearm to a resident of any State for temporary use for lawful sporting purposes, if he/she does not know or have reasonable cause to believe the person is prohibited from receiving or possessing firearms under Federal law.

So when do you have reasonable cause to believe a person is prohibited? That is always going to depend on the circumstances. For instance, if someone tells you that he/she has been previously denied the purchase of a firearm, you would have reasonable cause to believe the individual is prohibited. If, on the other hand, the person has never made any such statements (and I highly recommend that prior to lending any firearm, you have the individual sign a statement that he/she is not prohibited under state or federal law from possessing a firearm or ammunition) and you haven’t heard “rumors” of him/her having a criminal past or involuntary civil mental health commitments, then you can likely lend your firearm to that individual.

The grey arises when he/she states that he/she is not prohibited but you have heard “rumors” of his/her criminal past or psychological issues. In this scenario, I always advise a client against lending the firearm, as it is not clear whether you have reasonable cause to believe the individual is prohibited. Clearly, it is not worth the next several years of your life fighting the Government over and the loss of your home to pay the legal bills.

Even if you have no reason to believe the individual is prohibited, you still must determine whether your state permits the lending or renting of firearms. To make this determination, you should consult an attorney that is licensed in your state and familiar with your state’s firearms laws. Once you are satisfied that the individual is not prohibited and your state’s laws allow for the lending of the type of firearm that you intend to lend, you can actually lend your firearm to your friend.

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As an FFL, Can You Sell an NFA Firearm Through the Mail?

Often times, Federal Firearms Licensees (FFLs) inquire as to whether they can sell a National Firearms Act (NFA) firearm through the mail, without the buyer needing to be present. To the surprise of most FFLs, you actually can sell NFA firearms through the mail, provided the purchaser is not otherwise prohibited and is a resident in the same state as the FFL.

27 C.F.R. § 478.96 states that where the firearm is being provided to resident of the same state as the FFL and who is not prohibited, the FFL may sell a firearm that is not subject to the provisions of 27 C.F.R. § 478.102(a) to a non-licensee who does not appear in person. Section 478.102(a) requires a National Instant Check System (NICS) background check on most transactions; however, there is an exception, pursuant to subsection (d)(2), if  “The firearm is subject to the provisions of the National Firearms Act and has been approved for transfer under 27 CFR part 479.” Thus, Section 478.96 would apply and allow the FFL to transfer the firearm to the purchaser, who is a resident of the same state, without the purchaser having to be present.

However, pursuant to Section 478.96, the FFL has certain additional requirements to perform this type of transaction. Specifically, the purchaser must provide to the FFL an executed Form 4473, as provided for by 27 C.F.R. § 478.124, and attach “a true copy of any permit or other information required pursuant to any statute of the State and published ordinance applicable to the locality in which he resides.”

Furthermore, the FFL MUST “prior to shipment or delivery of the firearm, forward by registered or certified mail (return receipt requested) a copy of the record, Form 4473, to the chief law enforcement officer named on such record, and delay shipment or delivery of the firearm for a period of at least 7 days following receipt by the licensee of the return receipt evidencing delivery of the copy of the record to such chief law enforcement officer, or the return of the copy of the record to him due to the refusal of such chief law enforcement officer to accept same in accordance with U.S. Postal Service regulations.”

Lastly, the original Form 4473, and evidence of receipt or rejection of delivery of the copy of the Form 4473 sent to the chief law enforcement officer must be retained by the licensee as a part of his/her/its required records. After completing this step, the FFL can now send the NFA firearm to the purchaser, provided that there are no separate state law requirements. Some states, such as Pennsylvania, require additional state forms to be completed, depending on the type of NFA firearm (e.g. if it constitutes a “firearm” under Pennsylvania law, then a Record/Application of Sale form would have to be completed).

Accordingly, while an NFA transfer can occur without the instate purchaser being present, there are additional obligations placed upon the FFL and the purchaser may not be happy with the additional information being provided to his/her CLEO. Thus, it is a best practice for an FFL to only conduct in-person transfers, unless you are familiar with the requirements and have put in place procedural safeguards to ensure that none of the additional requirements are overlooked.

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The Second Amendment: Enforcing the Heller Decision

While at a conference last week I had the pleasure of attending a panel discussion entitled:  “The Second Amendment:  Enforcing the Heller Decision.”  A panel that included voices from across the political spectrum engaged in a give-and-take that well summarized developments in recent years.  The discussion was recorded and you can view it here.  I was quite pleased to have an opportunity to ask the panel to address the “as applied” challenges of the kind that Firearms Industry Consulting Group has helped to spearhead, and to find broad consensus on the panel for expanding the favorable case law through careful presentation of such cases.

My colleague, Josh Prince, has blogged much more extensively about the “as applied” challenges both with regard to non-violent, non-felony convictions as well as with regard to isolated encounters with the mental health establishment.  FICG has had success with such challenges.

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A Proposal to Limit the Regulatory State

Readers of this blog are well aware of the extent to which individual liberties are constrained not only by laws passed by Congress but also by federal administrative agencies (like ATF but also including EPA, and any number of other examples).  For most of last week I was in Washington, D.C., attending a conference, where over lunch one day I learned of a new proposal to empower Congress to limit runaway agency rules.

For the past few years a bill has been pending to enact the REINS Act, which would require that major rules be enacted by Congress itself, treating the output of a federal agency’s notice-and-comment rulemaking effort as the equivalent of a bill for the consideration of Congress.  That legislative proposal has not moved forward due, in part, to the lack of a filibuster-proof majority in the Senate as well as the certainty of a veto from President Obama (who often took unilateral action as the head of the bureaucracy).  Had the REINS Act been law, presumably measures like ATF-41P would have died from the lack of affirmative congressional approval.

I learned last week of a proposal that would go a step beyond the proposed REINS Act.  The Madison Coalition and its energetic Director, Roman Buhler, are generating pressure for a constitutional amendment that would permit 25% of the membership of either house of Congress to object to federal agency rulemaking, requiring that Congress then affirmatively act on the agency’s proposal before it would go into effect.  The Reguatory Freedom Amendment already has generated significant support and it certainly worthy of public consideration.  I welcome readers to visit the Madison Coalition to learn more about the proposal.

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Symbolism That We Can All Learn From

I was struck by an article this morning on Fox News regarding two moose who were found frozen in Alaska with their horns interlocked. The symbolism, without even reading the article, struck me. How many would would recognize the underlying moral to the story?

I frequently lecture on the use of force and that in many occasions, the best response, if possible, is to remove yourself from the situation. Yet, for some, sometimes their emotions, their “man card” and their pride preclude them from heading my advice. So, let me try through an extremely poignant picture.

Dog fight bird symbolism.jpg

What can we learn from this picture?

First, sometimes our safest and most astute response to provocation is not to fight; but rather, to walk away. Yet, some may see or comprehend this as an opportunity lost.

However, the second learning experience that we can take away from this picture is that not all opportunities are to be taken, as some opportunities are traps that may lead to our own demise.

And this leads us to the third learning experience that we, as human beings, can become so determined to harm or destroy our adversary that we become blind and end up destroying ourselves.

And let me be abundantly clear, your actions may be completely justified and supported by the law and yet, even if you survive the encounter without even a scratch, you still may destroy yourself. Few people can comprehend the impact on their psychological state after being involved in a use of force situation, even where the perpetrator was only harmed and survived. There are reasons, as Lieutenant Colonel David Grossman points out in his book On Killing: The Psychological Cost of Learning to Kill in War and Society, that our soldiers, historically, are disinclined to kill, unless we dehumanize the enemy, and that there are relatively few recorded instances in history of soldiers using bayonets against one another. I have in my profession, unfortunately, seen the aftermath of a justified use of force situation on an individual’s psychological well-being…I have also seen the aftermath of a non-justified use of force situation on an individuals psychological well-being and frankly, they do not tend to be that different. You will not be the same, at least, not for a while, although you will believe you are the same exact individual. Your family – those that you love the most – however, will see drastic changes in you. And with time, love, support and proper counseling, you can go back to being substantially similar to who you were before, but you’ll never be the exact same.

Keep this in mind if you find yourself in a situation, where you can safely remove yourself. There is far more to be proud of in deescalating a situation than the possibility of your family sitting over your grave.

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ATF Announces New Form 4473 – Firearms Transaction Record

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The National Shooting Sports Foundation is reporting that on Monday, November 14, 2016, ATF announced that the new 4437 would be required on ALL firearms transactions beginning on January 16, 2017. As you may remember, I previously blogged about ATF soliciting comments on the proposed 4473 and then filed a Comment in Opposition to ATF’s Proposed Changes to the Form 4473. ATF responded to my comment in which it admitted to violating its own regulations but seemingly did not care.

It does seem that ATF took into consideration some of the comments FICG had filed in drafting the new form. One of the biggest problems I took issue with was the certification statement that the transferor (person transferring the firearm) had to sign.

Specifically, the individual signing the form is currently certifying that based upon

“…information in the current ATF Publication ‘State Laws and Published Ordinances’ – it is my belief that it is not unlawful for me to sell, deliver, transport, or otherwise disposes of the firearm(s) listed on this form to the person identified in Section A.”

The issue, as I previously blogged about, is that the ATF Publication “State Laws and Published Ordinances” has not been updated since January of 2011, in violation of ATF’s own regulations. See 27 CFR § 478.24.

ATF in the updated version of the form has changed the language to read that based upon

“…State or local law applicable to the firearms business — it is my belief that it is not unlawful for me to sell, deliver, transport, or otherwise dispose of the rearm(s) listed on this form to the person identified in Section A.”

Essentially, ATF changed the language so that the individual signing the form would not be responsible for referring to the guide that ATF is required to publish by its own regulations but rather be responsible for knowing the applicable state and local laws on their own.

Equally of interest is the new language found over question 11e. In case there was any confusion from licensees or individuals attempting to purchase firearms who utilize medical marijuana, there can be no more confusion. If an individual is a user of medical marijuana, they may not answer no to question 11e.

Marijuana leaf on a white background

e. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.

ATF did fail to take into consideration an important suggestion that FICG had made. There is no box on the form to indicate the firearm is being transferred to a legal entity. Rather than having licensees use a form, which the licensee has to make on their own, ATF could have simply added a spot on the form to indicate the firearm was being transferred to a legal entity. ATF stated that we were free to submit that suggestion again in the future, which is a comical response, because the reason they said they could not include it was that the form had already been drafted when the suggestion was made. It appears this ideal will turn into a Catch 22.

All in all, from my experience behind the gun shop counter, the revisions to the form (at least the part the transferee or purchaser will be responsible for completing) appear to make it a bit easier for individuals to follow and complete. While ATF could have done a better job listening to some of the suggestions which would have been helpful to licensees, it appears this version of the form is better than the last.

 

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PAPUC Commissioner Powelson Elected as President of National Association of Regulatory Utility Commissioners

Congratulations to Pennsylvania’s own Commissioner Powelson!  The Pennsylvania Public Utility Commission (PUC) Commissioner Robert F. Powelson has been elected as the next president of the National Association of Regulatory Utility Commissioners (NARUC). He will serve a one-year term.powelson

“Since my first meeting in 2008, I have found NARUC to be an organization with a diversity of leaders and staff who work to bring a variety of perspectives to the table,” said Commissioner Powelson. “Its mission to serve the public is something that has been steadfastly supported by those who have come before me, and I am honored and committed to continuing this work.”

Founded in 1889, NARUC is a non-profit organization dedicated to representing the state public service commissions who regulate the utilities that provide essential services such as energy, telecommunications, power, water, and transportation. NARUC’s members include utility regulators from all 50 States, the District of Columbia, Puerto Rico, and the Virgin Islands.

Commissioner Powelson was nominated by PUC Chairman Gladys M. Brown, who noted his extensive background and strong record of service in Pennsylvania. “It is with great pleasure that I nominate someone who is knowledgeable about issues that impact all of our states; someone who is forward thinking, especially in our ever changing environment; and someone who is passionate about public utilities, as demonstrated in every conversation he has on the many issues that we face as Commissioners,” said Chairman Brown.

Looking ahead to the coming year, Commissioner Powelson will focus on three critical issues driving the future of utility regulation: Infrastructure, innovation and investment. “I think we would all agree that no modern nation has ever achieved economic prosperity or a high quality of life without adequate investment in infrastructure,” Powelson said. “It is clear that encouraging sound financial investment in our nation’s utility infrastructure is an important issue and one that NARUC should be engaged in.”

Additionally, he noted that NARUC – and utility regulators across the country – can play a major role in embracing and fostering innovation. “From increased data analytics and cloud based software to new forms of energy storage – just to name of few – NARUC is the perfect place to examine these trends and figure out which ones have longevity and should be pursued,” Powelson noted. “Over the next year, NARUC will focus on bringing thought-leaders in technology to NARUC and showcasing some of the newest technologies in the utility realm.”

Finally, Commissioner Powelson stressed the need to invest in people, especially efforts to ensure that the next generation of utility workers is prepared for future challenges, along with a focused effort to encourage utilities to hire veterans. “Investing in people – investing in the brain trust that will carry us forward into the next generation – is an essential investment that cannot be overlooked,” Powelson said. “I would also like to launch a NARUC Task Force on Veterans’ Affairs to examine best practices for hiring veterans in utility work and for partnering with community colleges to produce qualified candidates. I believe this is a partnership that has the potential to benefit everyone.”

Commissioner Powelson was first nominated to the PUC in 2008, and he served as Chairman from 2011 to 2015. He is also a member of the NARUC Board of Directors and has served as NARUC first vice president, chair of the NARUC Committee on Water and a member of the Committee on Critical Infrastructure, the Subcommittee on Nuclear Issues-Waste Disposal and the Subcommittee on Education and Research.

Additionally, Commissioner Powelson is a past president of the Mid-Atlantic Conference of Regulatory Utilities Commissioners (MACRUC), a voting member of the National Regulatory Research Institute (NRRI) and serves on the Electric Power Research Institute (EPRI) Advisory Council. He also served as a member of the Marcellus Shale Advisory Commission and was President of the Chester County Chamber of Business & Industry from 1994 to 2008.

 

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