In this diary we consider one of the permanent provisions of the Brady Act in a seasonal context – guns given as Christmas presents to someone who lives in another state.
New readers of the Daily Kos Firearm Law and Policy group blog may want to begin with What the heck is a background check anyway? That diary includes an introduction to US Criminal Code, Title 18 U.S.C. § 922(g). A failed background check was a key part of the back story in TRPChicago's diary on the Schrader v. Holder case, SCOTUS Declines to Hear Navy Vet's Gun Rights Appeal. In this diary we discuss a practical application of the law, giving a gun as a gift to someone who lives in another state.
This is an Open Thread.
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In recent years gun manufacturers have marketed guns to their customers using the same marketing techniques used to drive year-end sales of other specialty consumer products. But guns are unique. You can't simply buy a gun in any store or online and have it shipped directly across state lines to yourself or anyone else.
The legal website FindLaw is an excellent free resource for full-text judicial opinions from any court in the country. They also publish digests of important cases and points of law, such as this handy little Legal How-To; Giving a Gun as a Gift. The main considerations are the recipient’s age, whether they need and have the appropriate license in their state, whether you are gifting a new, used, or heirloom gun, and how you plan to ship it. To legally send a gun across state lines, even if it is a gift, you must go through a federally licensed firearms dealer in the recipient's home state.
The starting point is considering whether the recipient can/must pass a background check before they can receive the gun you are giving them. Federal restrictions on gun ownership go way beyond felons and people who are dangerous because of severe mentally illness. According to federal law eleven categories of persons are prohibited from buying/selling/owning guns. Many states have additional restrictions. Note that only two of the eleven categories require a criminal conviction. Only one category involves persons adjudicated to be mentally ill.
This is important and bears repeating. For most of the categories of prohibited persons listed below, due process does not require a criminal conviction.
How To - Identify Prohibited Persons (from BATFE)To get the discussion started let's consider a few hypothetical giver/receiver scenarios. Feel free to address any one of these or to make up your own.
The Gun Control Act (GCA) makes it unlawful for certain categories of persons to ship, transport, receive, or possess firearms. 18 USC 922(g). Transfers of firearms to any such prohibited persons are also unlawful. 18 USC 922(d).
These categories include any person:
• Under indictment or information in any court for a crime punishable by imprisonment for a term exceeding one year;
• convicted of a crime punishable by imprisonment for a term exceeding one year;
• who is a fugitive from justice;
• who is an unlawful user of or addicted to any controlled substance;
• who has been adjudicated as a mental defective or has been committed to any mental institution;
• who is an illegal alien;
• who has been discharged from the military under dishonorable conditions;
• who has renounced his or her United States citizenship;
• who is subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner; or
• who has been convicted of a misdemeanor crime of domestic violence (enacted by the Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, effective September 30, 1996). 18 USC 922(g) and (n).
1. Suppose you want to buy a gun for someone as a gift, someone in your immediate family or your girlfriend of three years? Choose any two states that interest you, just as long as the giver and receiver live in different states.
2. Suppose you drew your uncle Ned when your family drew names for Christmas gifts. You live in New York and uncle Ned lives in Arizona. Your mom clues you in that there had been some problems in his first marriage. She doesn't know the details beyond the fact that he had gone to jail and had then gotten back together with his ex-wife, before they eventually divorced a few years later.
3. Suppose your grandfather, who lives in Virginia, drew your sister, who is only 14. He wants to continue the family tradition and pass on a family heirloom rifle that has been in the family for three generations.
The current mix of federal and state law make buying a gun as a gift much more complicated than almost any other consumer product. Let's discuss the legal, moral, and ethical considerations of such gifts.
Further reading - The STATUTES
- Brady Law (P.L. 103-159, Title I; 107 Stat. 1536)
- 1968 Gun Control Act, as amended by Brady Law (18 U.S.C. Chapter 44)
- Prohibited categories (18 U.S.C. § 922(g) (1)-(9) and (n))
- Lautenberg Amendment (18 U.S.C. § 922(g)(9))
Further reading - Cases to watch in January 2014
- Abramski vs. US - Opinion (4th Circuit Court of Appeals)
- US vs. Castleman - Opinion (6th Circuit Court of Appeals)