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View Diary: Sen. Joe Donnelly (D-IN) announces support for universal background checks for gun purchases (19 comments)

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  •  Federal Law - Bkgrnd Checks - Who is prohibited? (3+ / 0-)
    Recommended by:
    pistolSO, Laurence Lewis, cuphalffull

    If you never owned a gun, and want to understand what this legislation is about, you may be surprised to know the list of persons prohibited from buying guns goes quite a bit beyond "felon" and "mentally ill."

    For those who never thought about it until recently, this is the ATF quick guide to current federal law prohibiting sale or transfer from a Federally Licensed Firearms Dealer to any potential buyer.  

    Under current law private party sales are exempt in two ways. The seller is not obligated to ask whether the potential buyer would pass a background check, and the potential buyer does not have to complete form 4473.

    The legislation for universal background checks would extend the prohibitions below to all firearm transfers, including sales and gifts to friends and family members.

    Federal Firearms Licensee Quick Reference and Best Practices Guide
    (A few excerpts)

    Prohibited Transfers

    You MAY NOT sell or transfer a firearm or ammunition to any person you know or have reasonable cause to believe is prohibited from possessing or receiving a  firearm. Do not sell or otherwise transfer a firearm and do not contact NICS if you have reason to believe that a person seeking to obtain a firearm is prohibited from receiving or possessing a firearm.

    Note: If a person answers “No” to Item 11.a or 12 of Form 4473, or answers “Yes” to one or more questions in Items 11.b through 11.l of Form 4473, that person has given you reason to believe he or she is prohibited and the transaction must be stopped.

    You MAY NOT sell or transfer a firearm or ammunition to any of the following prohibited persons or in the following circumstances:

    1. Straw Purchaser: A “straw purchaser” is a person who is not the “actual buyer” of the firearm; that is, a person who obtains a firearm for another person. Straw purchases are a primary source of firearms used in crime. If you suspect that a transaction is a straw purchase or there are suspicious circumstances surrounding the potential sale—such as one person picking out the firearm, handling the firearm, and providing the payment for the firearm while another person completes the Form 4473—you should not sell the firearm. Similarly, if one person attempts to purchase a firearm, NICS denies or delays the attempted purchase, and another person with him or her attempts to buy the same firearm, you must not complete this sale.

    2.  Person Under Indictment: A person “under indictment” includes any person who has been charged by indictment or information in any court with a crime for which he or she may be sentenced to a term of imprisonment exceeding 1 year.

    3.  Person Convicted of a Crime Punishable by Imprisonment for a Term Exceeding 1 Year: This prohibited person category includes any person who has been convicted of a felony or other crime for which the person could have been sentenced to imprisonment for a term exceeding 1 year—EVEN if the court actually placed the person on probation or sentenced the person to a term of imprisonment for 1 year or less.

    4.  Fugitive from Justice: A fugitive from justice is a person who has fled from any State to avoid prosecution for a crime (felony or misdemeanor) or to avoid giving testimony in any criminal proceeding.

    5.  Unlawful Drug User or Drug Addict: This prohibited person category includes any person who unlawfully uses—or is addicted to—marijuana, depressants, stimulants, narcotic drugs, or other controlled substances. Alcohol is NOT considered a controlled substance.

    6.  Adjudicated Mental Defective or Person Involuntarily Committed to a Mental Institution: This prohibited person category includes any person who has EVER been adjudicated by a court, board, commission, or other lawful authority to be, as a result of marked subnormal intelligence or mental illness, incompetency, condition, or disease, a danger to himself or herself or to others or to lack the mental capacity to contract or to manage his/or her own affairs. This category also includes any person who has been subject to a finding of insanity in a criminal case, including a finding that he or she is incompetent to stand trial. Also included is any person who has EVER been formally committed to a mental institution by a court or other lawful authority. This category does NOT include a person committed to a mental institution solely for observation or a person who was voluntarily admitted to a mental institution.

    7.  Person Dishonorably Discharged from the Military: A person is considered dishonorably discharged only if he or she was separated from the Armed Forces of the United States as a result of a dishonorable discharge or a dismissal adjudged by a general court-martial. This prohibition does NOT include persons with a bad conduct discharge or any other less than honorable discharge.

    8. Person Subject to a Restraining Order: This prohibited person category includes any person who is currently subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner, child of the person, or child of the intimate partner OR engaging in other conduct that would place the intimate partner in reasonable fear of bodily injury to the intimate partner or child. The court order must meet the specific requirements of 18 U.S.C. § 922(g)(8) to be prohibiting.

    9. Person Convicted of a Misdemeanor Crime of Domestic Violence: This prohibited person category includes any person who has EVER been convicted in any court of a misdemeanor crime of domestic violence regardless of the title of the offense. The offense must meet the definition of “misdemeanor crime of domestic violence” in 18 U.S.C. § 921(a)(33). Note: Unlike other prohibited person categories, law enforcement officers purchasing firearms for official use are NOT exempt from this prohibited person category.

    10. Person who has Renounced U.S. Citizenship: A person has renounced his or her United States citizenship if he or she takes formal steps to renounce her/his citizenship before a diplomatic or consular officer or before an officer designated by the Attorney General during a time of war.

    11. Aliens Illegally or Unlawfully in the United States: This prohibited person category includes any person who unlawfully entered the United States or who illegally remains in the United States after his or her authorized period of stay has expired.

    11a. Nonimmigrant Aliens: A nonimmigrant alien is an alien who is lawfully in the United States on a temporary basis for purposes of travel, business, study, etc. The term does NOT include a permanent resident alien (someone who possesses a “green card.”) A nonimmigrant alien may only purchase or receive a firearm if he or she: (a) was admitted to the United States for lawful hunting or sporting purposes or presents a valid hunting license or permit issued by a State; (b) qualifies as a foreign diplomat, official, or law enforcement officer as defined at 18 U.S.C. § 922(y)(2); or (c) has received a waiver of the prohibition from the Attorney General.

    12. Sale of a Firearm or Ammunition to a Person Under Age 18: You may not sell or deliver a firearm or ammunition to a person you know or have reasonable cause to believe is less than 18 years old.

    13. Sale of a Handgun or Handgun Ammunition to a Person Under Age 21: You may not sell or deliver a firearm other than a rifle or a shotgun—or ammunition other than rifle or shotgun ammunition—to a person who you know or have reasonable cause to believe is less than 21 years old. A firearm frame or receiver is not a rifle or shotgun and may not be sold to a person under 21 years old.

    14. Sale in Violation of State Law or Published Ordinance: You may not sell or deliver a firearm to any person in any State where the purchase or possession would be in violation of a State law or published ordinance.

    We recommend that you refer to the most recent edition of ATF’s State Laws and Published Ordinances–Firearms.
    Age Restrictions

    As noted above, under Federal law, the minimum age to purchase firearms and ammunition from an FFL is 18. If the firearm is other than a rifle or a shotgun—or ammunition for other than a rifle or a shotgun—the minimum age is 21 [18 U.S.C. 922(b)(1)]. However:

    1. You may sell ammunition that is interchangeable between rifles and handguns to a buyer who is at least 18 years of age if you are satisfied that he or she will use the ammunition in a rifle.

    2. Regardless of less restrictive State and local age requirements for firearms and ammunition purchases, you must adhere to the above Federal mininum age

    Transfers Between Licensees

    Generally, FFLs may transfer firearms to other FFLs, including interstate transfers, without completing Form 4473 for these transactions. In these instances, the following procedures must be followed:

    1. Transactions between licensees must be recorded in the bound book (Acquisition and Disposition or A&D) records of both licensees.

    2. The FFL who is buying the firearm must furnish a certified copy of their license to the selling FFL prior to the transfer of any firearm. This certified copy may be emailed or faxed.

    For more background, see also Background Check 101 - What is a Straw Buyer?

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Wed Mar 27, 2013 at 11:25:25 AM PDT

    •  I wish the ATF and local law enforcement (1+ / 0-)
      Recommended by:

      would be more inclined to act when a person fails a NICS check.  

      Yes, they could be one of the 0.5% of American's incorrectly flagged, or somebody who didn't realize that criminal charge they plead guilty to in college 20 years ago had legs.  Or, they could be somebody with a violent past trying to obtain another firearm, and need another trip to the pen before they hurt someone (not afterwards).

      •  What is the correct process? (0+ / 0-)

        Who is responsible for reporting to whom?

        ATF contacts local law enforcement?

        Dealer contacts local law enforcement?

        Is it another case of selective enforcement? Such that some locales have a don't bother policy, but in others people are prosecuted?

        "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

        by LilithGardener on Wed Mar 27, 2013 at 06:44:26 PM PDT

        [ Parent ]

        •  The impetus is on the ATF (0+ / 0-)

          The dealer can't do much aside from citizen arrest (and even then can't actually detain).

          Local law enforcement should investigate.  They're often right there in the store  off-duty anyways (I realize this would be an administrative hassle).

          At the very least they have reasonable cause to investigate.

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