Components - Out of State Sales

[dd]

LenS posted on Feb 2005

Mach, YES that is true. NOBODY can buy legally w/o LTC. Your AGENCY can purchase from anywhere and have it shipped to their office, but no private purchases without MA LTC.

Them's the laws in MA.


Len, from the above statement it would seem that you have deduced that sale of ammo and components to a MA resident is OK as long as said merchant has ID’d the MA resident as having a valid LTC. Is this now true??

dd

 

[vellnueve]

If you can find someone who will ship it to you, then you can buy it. MA residents are not prohibited from ordering ammunition and components by mail or web, however the AG has deemed this practice illegal because he claimed that these sales take place in Massachusetts. This is of course patently not true, but too many dealers have backed down.

 

[RKG]

I think this has gotten a wee bit confused.

1. In Massachusetts, no one may sell ammunition except to a person holding a given class of license regarding firearms.

2. In Massachusetts, no one may engage in the business of selling ammunition without being licensed as a dealer in ammunition.

3. There is no prohibition under Massachusetts law against either:

a) any Massachusetts resident going to New Hampshire and purchasing ammunition, or

b) any Massachusetts resident holding a license to carry or FID from bringing back into Massachusetts ammunition that he went up to New Hampshire and purchased.

It is Point #2 that forms the basis for the claim that out-of-sale dealers may not sell or deliver to Massachusetts residents in Massachusetts.

 

[Len-2A Training]

I think this has gotten a wee bit confused.

2. In Massachusetts, no one may engage in the business of selling ammunition without being licensed as a dealer in ammunition.

It is Point #2 that forms the basis for the claim that out-of-sale dealers may not sell or deliver to Massachusetts residents in Massachusetts.

. . . and ignoring the UCC that 49 other states abide by.

 

[Len-2A Training]

LenS posted on Feb 2005

Mach, YES that is true. NOBODY can buy legally w/o LTC. Your AGENCY can purchase from anywhere and have it shipped to their office, but no private purchases without MA LTC.

Them's the laws in MA.


Len, from the above statement it would seem that you have deduced that sale of ammo and components to a MA resident is OK as long as said merchant has ID’d the MA resident as having a valid LTC. Is this now true??

dd

Dave, sorry but you are grossly mis-quoting me here.

I wrote that yesterday or the day before wrt a Fed LEO who thought he could purchase ammo inside MA on his badge/ID alone (no LTC)!

The point you raise is a totally different subject which RKG and I addressed above.

 

[KMaurer]

. . . and ignoring the UCC that 49 other states abide by.

... and also the close, but not quite on point precendent of the DoR having their heads handed to them by the SJC when they attempted to argue that Como's was required to collect sales tax for its sales to Massachusetts residents at the Salem, NH store. Seems that the SJC's opinion was that those sales, whether on site or by phone indeed took place in NH, not MA.

Ken

 

[RKG]

. . . and ignoring the UCC that 49 other states abide by.

Well, maybe.

For the edification of others, Len (who routinely claims not be a lawyer but nonetheless usually ain't bad at faking it) is referring to Article 2 of the Uniform Commercial Code, and in particular the FOB provisions. In general and as applied to most mail order sales, the sale would be considered complete at the time the seller placed the goods in the hands of a carrier (such as FedEx or UPS).

However, Article 2 concerns itself with such things as the passage of title and the risk of loss (including risk of loss in transit). It does not expressly address, and the Comments of the Commissioners on Uniform Laws that drafted it expressly negated any implication that it applied to, non-commercial regulations purporting to address the conditions under which out-of-state sellers might engage in transactions with in-state purchasers of specific types of goods.

So (back to our story), the real issue is how to interpret the word "sell" in the phrase "sell . . . in the commonwealth" in G.L. ch. 140, sec. 122B, which provides (in part): "No person shall sell ammunition in the commonwealth unless duly licensed. . . ."

The word "sell" is not specifically defined in section 121 (firearms regulation definitions), nor, so far as I am aware, elsewhere for this purpose. This leaves a Court with the tast of supplying a definition from other sources of statutory law, or the common law, or common sense, all with a view to achieving whatever the Court perceives to be the legislative purpose. Adopting the UCC Article 2 rules on passage of title/risk of loss is a possibility, but not a certainty.

 

[C-pher]

So (back to our story), the real issue is how to interpret the word "sell" in the phrase "sell . . . in the commonwealth" in G.L. ch. 140, sec. 122B, which provides (in part): "No person shall sell ammunition in the commonwealth unless duly licensed. . . ."

Let me get this right...

SO pretty much, you could read this as saying that they didn't sell it in the commomwealth becuase they were out of the state at the time of the sale?

When I call someone in Albuquerque for ammunition or compontents...the sale didn't take place in Mass, it took place in Albuquerque. Therefore, he didn't sell it in the commonwealth per say, therefore making the sale legal.

Or am I all twisted up??

 

[Dick]

SO pretty much, you could read this as saying that they didn't sell it in the commomwealth becuase they were out of the state at the time of the sale?

I deal regularly with one large mail-order supplier who apparently does read it exactly that way and has no problem shipping components and ammo into MA as long as you provide them a copy of your LTC and a short statement indicating you believe it to be legal for them to do so.

 

[RKG]

Let me get this right...

SO pretty much, you could read this as saying that they didn't sell it in the commomwealth becuase they were out of the state at the time of the sale?

When I call someone in Albuquerque for ammunition or compontents...the sale didn't take place in Mass, it took place in Albuquerque. Therefore, he didn't sell it in the commonwealth per say, therefore making the sale legal.

Or am I all twisted up??

Close. In fact, how you, I or someone else might read (actually, "interpret" is a more apt verb) the statute is utterly irrelevant. What matters is how the Court may someday in the future "read" it, about which people have different predictions.

In the absence of a definitive judicial resolution, the "opinion" of the Attorney General of a state tends to govern as a practical matter, for the same reason that the 600-lb gorilla at the table gets to eat first.

 

[C-pher]

Correct, but without any case law, or whatever you would call it.. It's completely fightable. If you so choose to spend the money.

Therefore, if you're not afraid of the powers that be in MA, you could interpret this as a legal activity.

Now, being that the sale didn't originate in MA, how can the MA AG go after this said dealer?



ETA: Thank you very much, by the way, for taking your time to explain this to us.

 

[RKG]

This could go on forever, so let me see if I can clarify a bit:

1. From time to time I had someone ask me, "Can I sue?" My answer was: "Wrong question; for $2 anyone can sue. [At one time, the civil action entry fee was $2.] The real question is: Can you win?" The real question entails a prediction of how the court will rule on a given question -- when, as and if that question is ever presented to it. (That is the essence of what lawyers do: predict the outcome of hypothesized future litigation.)

2. The issue of whether 140/122B precludes mail order ammo sales to Massachusetts addressees is actual two questions: A) is that what the statute intended? and B) if so, does it pass muster under the Commerce Clause?

3. I'd say 50-50 on the first question. On the one hand, if you assume the General Court intended to require licensing of ammo sales, it doesn't make a lot of sense to license local sales but say "OK" to mail orders. On the other hand, there is no prohibition on a Massachusetts denizen zipping up to NH and buying the same stuff and bringing it home, in which case all the statute does is penalize local dealers. How would a court rule? BTSOOM.

4. I pass on the second question, as it would require research. For those interested, though, see if what you can find on the statute that bars mail-order wine sales, which was the subject of some notoriety lately.

5. Now, none of this addresses the question of how, assuming the mail order sales of ammo were unlawful but some out-of-stater keeps doing it, a prosecuter gets jurisdiction over the out-of-stater. At one time the rules were simple and easy to administer: you could only get in personam jurisdiction on a person who (or whose agent) you could physically serve with process within the borders of the Commonwealth. More modern precepts are sort of convoluted and complicated, but I suspect that the Massachusetts courts would rule that 223A/3 extends to such cases.

6. Now you hypothesize that the prosecuter sues the out-of-stater (say, for a DJ and injunction) in a Massachusetts court, asserts in personam jurisdiction under ch. 223A, and serves process by mail. The out-ot-stater, back in his home state, utters a hortatory subjective in the prosecutor's direction and ignores the process. The Massachusetts action proceeds to default judgment. So what (so far)?

7. At that point, the Massachusetts prosecutor has to take his default judgment to the out-of-stater's jurisdiction and ask that it be enforced by the out-of-stater's state courts. This will be required if (A) ch. 223A does apply (a question on which the out-of-state court will likely defer to the Massachusetts court), and (B) the out-of-state court decides that so extending in personam jurisdiction is consonant with the mandate of the Due Process Clause of the federal constitution. That is sort of a crap shoot.

8. The bottom line is a pragmatic one. However a court might some day rule, the position asserted in favor of applying 140/122B to out-of-state mail order houses is credible enough that they have elected effectively to concede. As a pragmatic judgment, that is hard to fault.

 

[C-pher]

4. I pass on the second question, as it would require research. For those interested, though, see if what you can find on the statute that bars mail-order wine sales, which was the subject of some notoriety lately.

Holy Crap, that's a mess as well.

From what I can gather... Under the ABCC, is seems that they can ship to MA, but they have to have proof of a license make and sell alcohol. Or Provide to MA that they have a license to make and sell in their state or in the US...

I'm having a hard time reading those... I'm in MGL 138...

But it looks like they can sell directly to MA residents as long as they are licensed by the Feds...or their home state. But I didn't see where they needed a MA permit to sell to MA residents. But like I said, these are very hard to read.

I went to wine.woot.com and they say that they ship to MA. As well as several wine of the month clubs... I can't seem to find a beer of the month club that will ship to MA...but all the Wine ones seem OK with it...


Anyway, if I'm reading that right... It's too bad that they can't do ammo and components the same way.