Hypothetical gun purchae question?

[classaltc]

Hi, I am new to this forum and what little I have explored thus far has been very informative. I have a hypothetical question that almost hapined to a friend last year (late '08)
A private party (student) residing in MA for less than 60 days has 3 long guns to sell.
The guns are not on the "banned gun list. The seller has no ma lic/fid.
My friend has a MA FID.He almost purchased these 3 guns whthout getting a signed gun transfer form.He could get enough info off of a drivers lic to identify this person.
There is no paperwork from NY (home state for this person) On these guns.
My questions are as follows...

1 IF he had purchased these guns and wanted to register them in MA how could this be done.

2 Could he fill out a transfer form and just check register? (knowing he may get a knock on the door requestin the guns and a ride downtown to answer questions.

3 What if he was unable to contact the previous owner?

He (the buyer)is a sensable person (with poor impulse buying judgement) and realized that if these guns were stolen he would lose them but would have been more than happy to cooperate with LE to apprehend the person who was selling the guns. He did believe the seller was honest and just wanted to sell the guns before the time limit ran out and didnt want to deal with MA paper.

conclusion: Had my friend in this hypothetical situation purchased these guns could he register them in MA or should he donate them to local law enfoircement
Thank you

 

[jdubois]

If the new resident did not yet have his FID/LTC, he could not sell the guns privately. The transfer would have needed to go through an FFL. If this friend of yours did buy them privately from this unauthorized seller, they would be required under C. 140 § 128B to file an FA-10 for each said purchase, including listing the name and address of the seller.

 

[M1911]

The only way he could have done so legally is if he and the owner took the guns to an FFL and did the transfer through an FFL. You can't buy a gun in a private sale from an unlicensed person.

 

[jdubois]

You can't buy a gun in a private sale from an unlicensed person.

There's nothing illegal about buying it, per se. It's the selling that is illegal. The problem comes in when you, the buyer, file the required FA-10 form without listing a seller FID/LTC number. If anybody even cared at CHSB, somebody would come take the gun for evidence and you'd never see it again.

 

[appraiser]

now for the sake of conversation if the Mass resident went to NY and picked up the guns there assuming the seller legally owned the weapons there, can the buyer bring the guns back into MA and file a FA-10 or does he still have to FFL it somewhere in the transaction?

 

[Half Cocked]

You can't buy a gun in a private sale from an unlicensed person.

Says who?

 

[vellnueve]

now for the sake of conversation if the Mass resident went to NY and picked up the guns there assuming the seller legally owned the weapons there, can the buyer bring the guns back into MA and file a FA-10 or does he still have to FFL it somewhere in the transaction?

He would have to go through an FFL. Interstate transfers of firearms between private parties are prohibited by federal law.

Says who?

A transfer from a non-resident to a resident LTC holder in MA is a violation of federal law, so the question is moot. If you're referring to in-state transfers from nonlicensed persons to licensed persons without using an FFL, please let us know how that argument is made.

 

[GSG]

There's nothing illegal about buying it, per se. It's the selling that is illegal. The problem comes in when you, the buyer, file the required FA-10 form without listing a seller FID/LTC number. If anybody even cared at CHSB, somebody would come take the gun for evidence and you'd never see it again.

If the seller has an FA-10 with their info already filled out on the top, or even if they didn't, is the buyer responsible to confirm that the seller has an active FID/LTC?

Searching, I just found this here:

http://www.mass.gov/legis/laws/mgl/140-128b.htm

Chapter 140: Section 128B. Unauthorized purchase of firearms; report to commissioner; penalties


Section 128B. Any resident of the commonwealth who purchases or obtains a firearm, rifle or shotgun or machine gun from any source within or without the commonwealth, other than from a licensee under section one hundred and twenty-two or a person authorized to sell firearms under section one hundred and twenty-eight A, and any nonresident of the commonwealth who purchases or obtains a firearm, rifle, shotgun or machine gun from any source within or without the commonwealth, other than such a licensee or person, and receives such firearm, rifle, shotgun or machine gun, within the commonwealth shall within seven days after receiving such firearm, rifle, shotgun or machine gun, report, in writing, to the executive director of the criminal history systems board the name and address of the seller or donor and the buyer or donee, together with a complete description of the firearm, rifle, shotgun or machine gun, including the caliber, make and serial number. Whoever violates any provision of this section shall for the first offense be punished by a fine of not less than $500 nor more than $1,000 and for any subsequent offense by imprisonment in the state prison for not more than ten years.

I don't see anything about putting the FID/LTC number on that form. I also don't see it here:

http://www.mass.gov/legis/laws/mgl/140-129.htm

Chapter 140: Section 129. Fictitious name or address and other false information; penalties


Section 129. Whoever in purchasing, renting or hiring a firearm, rifle, shotgun or machine gun, or in making application for any form of license or permit issued in connection therewith, or in requesting that work be done by a gunsmith, gives a false or fictitious name or address or knowingly offers or gives false information concerning the date or place of birth, his citizenship status, occupation, or criminal record, shall for the first offense be punished by a fine of not less than five hundred nor more than one thousand dollars, or by imprisonment for not more than one year, or both; and for a second or subsequent offense, shall be punished by imprisonment for not less than two and one half years nor more than five years in the state prison.

 

[GSG]

He would have to go through an FFL. Interstate transfers of firearms between private parties are prohibited by federal law.

Yes, but does a student residing in Mass. have residency here as far as federal law is concerned? I honestly don't know.

 

[vellnueve]

Yes, but does a student residing in Mass. have residency here as far as federal law is concerned? I honestly don't know.

I think that in general, students have not been held to have dual residency.

 

[jdubois]

If the seller has an FA-10 with their info already filled out on the top, or even if they didn't, is the buyer responsible to confirm that the seller has an active FID/LTC?

You're right that the law does not require the FID/LTC number to be reported, it's an additional request for information on the FA-10 that's not supported by statute. But non-the-less, the seller *is* required by law to confirm that the seller has an active license. If the seller has no license, they are not authorized by 128A to sell the firearm. At that point, 128B kicks in and it's the buyer is responsible for the FA-10 form. If, at that point, because it is now your responsibility, if you allow an FA-10 to be filed with a false license number, you're the one filing false information to the government.

But if the license number is left blank, would the CHSB notice or care? I just don't know the answer to that question.

 

[appraiser]

so right now the seller is in violation of some federal and state laws it seems, and the buyer has not reported the sale within 7 days so they are in theory in violation.

 

[jdubois]

so right now the seller is in violation of some federal and state laws it seems, and the buyer has not reported the sale within 7 days so they are in theory in violation.

There would have been no federal violation that I can see, depending upon the student's residency status. ATF Rul. 80-21 holds that students are residents of the state they are going to school in during the period they are actually residing at the dormitory or off-campus housing.

 

[Half Cocked]

A transfer from a non-resident to a resident LTC holder in MA is a violation of federal law, so the question is moot. If you're referring to in-state transfers from nonlicensed persons to licensed persons without using an FFL, please let us know how that argument is made.

The op is asking about in-state transfer from an unlicensed person to a licensed person.

The argument is made in 128B. The buyer fills out the FA-10 and mails it in.

IMO...it is perfectly legal as 128B addresses purchases from unlicensed individuals.

 

[Half Cocked]

But if the license number is left blank, would the CHSB notice or care? I just don't know the answer to that question.

In my opinion no......This is the express purpose of 128B.

 

[jdubois]

IMO...it is perfectly legal as 128B addresses purchases from unlicensed individuals.

It's certainly not legal on the seller's side, because 128B does not protect the seller from the penalties of 128. And, so, while there is no criminal conduct on the buyer's part in such a transaction, there is no way a legal contract of sale can take place (you cannot have a sale that requires one of the parties to break the law). The only time this would really be a problem for the buyer, however, is if the state becomes interested in the deal for some reason. They could take the gun from you, because you have no legal title to it.

That's why I wonder about the CHSB. As long as you, as the buyer, file the FA-10 correctly, you've met your legal obligations to the state. But would the CHSB be interested enough in the information contained on that FA-10 to have LE investigate a possible illegal sale on the seller's part? You, as the buyer, would basically become a witness at that point, unless they felt it reasonable to file conspiracy charges against you.

My suspicion is that none of this is ever likely to happen. The CHSB would just file it without paying any attention, just like any other FA-10, and that would be the end of it.

 

[Half Cocked]

It's certainly not legal on the seller's side, because 128B does not protect the seller from the penalties of 128. And, so, while there is no criminal conduct on the buyer's part in such a transaction

The op was about the buyer.

They could take the gun from you, because you have no legal title to it.

What is a "Legal title". An FA-10 is strictly a record of transaction

That's why I wonder about the CHSB. As long as you, as the buyer, file the FA-10 correctly, you've met your legal obligations to the state.

Correct

But would the CHSB be interested enough in the information contained on that FA-10 to have LE investigate a possible illegal sale on the seller's part?

You, as the buyer, would basically become a witness at that point, unless they felt it reasonable to file conspiracy charges against you.

Conspiracy...for what? There can only be a conspiracy if they were both involved in furthering a criminal act. The buyer was doing nothing illegal.

My suspicion is that none of this is ever likely to happen. The CHSB would just file it without paying any attention, just like any other FA-10, and that would be the end of it.

Agreed!

As usual another FA-10 debate that brings to light the poor language of our laws.

 

[vellnueve]

The op is asking about in-state transfer from an unlicensed person to a licensed person.

The argument is made in 128B. The buyer fills out the FA-10 and mails it in.

IMO...it is perfectly legal as 128B addresses purchases from unlicensed individuals.

OK, but it's still illegal for the unlicensed individual to sell it.

And either way, in the initial case presented, this would appear to be a non-resident, thus the question is moot.

 

[M1911]

Conspiracy...for what? There can only be a conspiracy if they were both involved in furthering a criminal act. The buyer was doing nothing illegal.

But wasn't the seller violating the law?

 

[jdubois]

The op was about the buyer.

What's your point? Illegal actions of the seller can impact the buyer, even if the buyer is not doing anything illegal.

What is a "Legal title". An FA-10 is strictly a record of transaction

Legal title is "a collection of rights of ownership that are defined or recognized by law or that could be successfully defended in a court of law." It is the ability to claim that you own something. A legal contract of sale transfers legal title of the goods to you, the buyer. An illegal contract of sale does not.

 

[jdubois]

But wasn't the seller violating the law?

Right, if you could show that the buyer knew it was illegal for the seller to sell the gun, but encouraged the sale anyway for their own gain, that could easily fit the description of conspiracy. Would be extremely difficult to prosecute though, I'd imagine.

 

[Half Cocked]

OK, but it's still illegal for the unlicensed individual to sell it.

This is where I disagree with you all. Please provide where this is stated.

 

[Half Cocked]

What's your point? Illegal actions of the seller can impact the buyer, even if the buyer is not doing anything illegal.

My point is that there could be nothing done(legally) to the purchaser. I also believe that the seller can sell the gun legally.

Legal title is "a collection of rights of ownership that are defined or recognized by law or that could be successfully defended in a court of law." It is the ability to claim that you own something. A legal contract of sale transfers legal title of the goods to you, the buyer. An illegal contract of sale does not.

Agreed but that is not the intended purpose of an FA-10.

 

[jdubois]

I also believe that the seller can sell the gun legally.

Well, if that were true, then there'd be no issue. But how do you account for § 128?

"any person who, without being licensed as herein before provided, sells, rents or leases a firearm, rifle, shotgun or machine gun, or is engaged in business as a gunsmith, shall be punished by a fine of not less than $1000 nor more than $10,000, or by imprisonment for not less than one year nor more than ten years, or by both such fine and imprisonment."

§ 128A makes exception to the above, but only "provided, however, that the seller: has a firearm identification card or a license to carry firearms" (or a few 129C exemptions that don't apply here)

Agreed but that is not the intended purpose of an FA-10.

True, but I wasn't discussing the FA-10 at that point. I was discussing whether the buyer could complete a legal contract of sale with a non-licensed individual.

 

[drgrant]

Here we go again.....

I need an animated gifs, basically a guy beating a drum that says 128A on one side and then 128B on the other, and then the guy walks back and forth beating on the drum...

Only part thats missing is the ravenous wolves...

http://www.youtube.com/watch?v=9cmT8M_67ow

 

[jdubois]

Here we go again.....

Half Cocked and I just can't keep away from arguing 128A&B, can we? I think we need to just end this thing in a no holds barred steel cage match .

 

[toga]

Here we go again.....

I need an animated gifs, basically a guy beating a drum that says 128A on one side and then 128B on the other, and then the guy walks back and forth beating on the drum...

Only part thats missing is the ravenous wolves...

http://www.youtube.com/watch?v=9cmT8M_67ow

+1 for working in an old Outpost.com commercial.

 

[Half Cocked]

Here is my point and I know we are beating it to death but this is my interpretation of things:

128A and 128B are mutually exclusive of each other. The failure of an act in 128A does not trigger (in my oipinion) any requirement of the buyer under128B.

128A deals with the seller who has an LTC/FID. It states that it is the sellers responsibility to submit an FA-10 within 7 days of the transaction.

128B deals with the purchaser who purchases from someone who does not have a LTC/FID. It states that in this case it is the buyers responsibility to file the FA-10.

No where does it state that it is required that the seller have an LTC/FID. (If they were a prohibited person it may bring up other issues)

The whole purpose of 128B is dealing with purchases outside of 128A.

 

[Half Cocked]

Half Cocked and I just can't keep away from arguing 128A&B, can we? I think we need to just end this thing in a no holds barred steel cage match .

Who's arguing? It is a gentlemans debate.

LOL...it just shows how foolish the laws are

 

[classaltc]

Wow, If I knew someone with that problem I sure came to the right place. If this had really hapined to someone I knew I would have told myfriend (buyer) to fill out the correct forms with a cover letter and fax it over to CHSB with in 7 days, (after of course calling the seller one last time to explain what he was going to do and how it may affect him,seller). I will advise my friend that, should he try to obey the law and register the guns for future confiscation, the worse thing that can occur, it appears, is that the <insert state sponsered secret police organization name here EX: KGB, Gestapo, STAZI> may come and confiscate the firearms but no ill should come to him.

Thanks for all the help. i'll try to come up with a new, and just as perplexing, hypothetical situation for next weeked.
Rich