Hypothetical gun purchae question?

This is where I disagree with you all. Please provide where this is stated.[wink]
So then I gotta ask what does this section of 128A then mean:
The provisions of section one hundred and twenty-eight shall not apply to any resident of the commonwealth who, without being licensed as provided in section one hundred and twenty-two, sells or transfers to other than a federally licensed firearms dealer or organization named above not more than four firearms, including rifles and shotguns in any one calendar year; provided, however, that the seller has a firearm identification card or a license to carry firearms, is an exempt person under the conditions of clauses (n), (o), (r) and (s) of the fourth paragraph of section one hundred and twenty-nine C, or is permitted to transfer ownership under the conditions of section one hundred and twenty-nine D
As I read this a resident who is not a dealer selling directly to an individual must have an FID or LTC, be exempt under sections n, o, r or s of 129D, or be exempt under 129D to do so (and sell not more than 4 per year). It appears to me that the cases where an unlicensed individual can legally sell a gun are quite limited. What have I missed?
 
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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)

It is effectively stated in 128. According to 128, nobody without a dealer's license may sell any firearm, rifle, or shotgun. There is nothing anywhere in the law that makes any exceptions for 128 except for 128A. So you either are a seller who is in compliance with 128A (which typically means you need an FID/LTC), or you are not allowed to sell firearms. End of story.
 
It is effectively stated in 128. According to 128, nobody without a dealer's license may sell any firearm, rifle, or shotgun.


128 deals with licensees.


There is nothing anywhere in the law that makes any exceptions for 128 except for 128A.

I would argue that 128B is an exception.


So you either are a seller who is in compliance with 128A (which typically means you need an FID/LTC), or you are not allowed to sell firearms. End of story.

Then who are they talking about under 128B when they say... Any resident of the commonwealth who purchases or obtains a firearm, rifle or shotgun or machine gun from any source within 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?

Who would be the source if it is not an FFL or a LTC/FID holder?

My opinion is that it is covering those unlicensed (but not prohibited) such as in the OP.

My $.02 and maybe we should let it die it's slow death.[wink]
 
You quoted 128A.
Yes I did. I've fixed the attribution in my original post.
Read 128B.
I did that too and AKAICT it does not apply to the question of who may sell a gun. 128B defines the reporting requirements for purchasers of firearms. As I read it 128B does not itself define who may sell a gun, although it does reference sections that do, including 128A.

Then who are they talking about under 128B when they say... Any resident of the commonwealth who purchases or obtains a firearm, rifle or shotgun or machine gun from any source within 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?
First you need to look at the full text of the sentence you mis-quote:
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,
You left out the "or without" part which is key.
Who would be the source if it is not an FFL or a LTC/FID holder?
Someone, by federal law a dealer, without (outside) the commonwealth from who a resident purchases a gun.
My opinion is that it is covering those unlicensed (but not prohibited) such as in the OP.
Sorry, I don't see it. As I said above 128B is defining a reporting requirement, not who may sell or purchase. Even if one stipulates that it does require reporting of sales by "those unlicensed (but not prohibited) such as in the OP" that does not mean such sales are actually allowed is they are prohibited by other parts of the law (e.g., 128A).
 
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128B defines the reporting requirements for purchasers of firearms.


It defines reporting requirements for purchases from non licensees!


First you need to look at the full text of the sentence you mis-quote:
You left out the "or without" part which is key.

I did not mis quote. Notice the law says "or" not "and". I posted the parts relevent to the OP. The "without" is not relevent as the purchase is "within" in the OP.


Someone, by federal law a dealer, without (outside) the commonwealth from who a resident purchases a gun.


So answer my original question:

Then who are they talking about under 128B when they say... Any resident of the commonwealth who purchases or obtains a firearm, rifle or shotgun or machine gun from any source within 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?

Who is the source of the firearm?


As I said above 128B is defining a reporting requirement, not who may sell or purchase.

Yes....a reporting requirement for purchases made from non-licensees


Even if one stipulates that it does require reporting of sales by "those unlicensed (but not prohibited) such as in the OP" that does not mean such sales are actually allowed is they are prohibited by other parts of the law (e.g., 128A).

Where does 128A prohibit sales?

128A dictates reporting requirements for sales made by LTC/FID holders.

128B dictates reporting requirements for purchases made from non-LTC/FID holders or gunsmiths/dealers.

Kevin9...I am more or less making a debate that there can be very intelligent arguments made for the sale of firearms by "non-licensee's".

I would not recommend it but the argument can most definately be made. There are some at EOPS who agree with me. There are others who do not.

In essence...the law is very poor and we should leave it at that![wink]
 
I know that I should really stay out of this migraine-causing-argument about how many angels can dance on the head of a pin, BUT . . .

Doe 128B make more sense in the following scenario (input from HC and other LEOs who deal with this are solicited and valued, at least by me):

- MGLs allows a chief to revoke a LTC for "suitability",

- MGLs REQUIRES confiscation of all guns, ammo, mags, etc. if LTC is revoked,

- MGLs ALLOWS the former LTC-holder to designate disposition of confiscated guns/ammo/mags/etc. to ANY LTC-holder. [This presumes revocation is NOT related to a 209A, as MGL PROHIBITS disposition in that case except to an FFL.]

- It is my understanding from LE sources that said disposition would be done on FA-10s (unlimited in this case) to new owner. In this case, person disposing of guns NO LONGER HAS A VALID LTC.

So is this one of the purposes of 128B? Might that not also then cover the person who just let it expire and didn't renew (asked, I don't know the answer wrt MGL)?


[I know I'm going to regret even raising this issue! [thinking] ]
 
So answer my original question:

Then who are they talking about under 128B when they say... Any resident of the commonwealth who purchases or obtains a firearm, rifle or shotgun or machine gun from any source within 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?

Who is the source of the firearm?

Who cares? 128B is not allowing or disallowing the sales of firearms from any set of people. It is simply stating that if the seller was not required to fill out an FA-10, then the buyer must file an FA-10, no matter where they got the gun from. If I bought a stolen gun from an illegal Russian imigrant in a crack house in Fitchburg, 128B would require me to fill out an FA-10 on the deal. That doesn't mean that therefore the deal was legitimate.

Half Cocked said:
Where does 128A prohibit sales?

128A is not the correct statute to be looking at. You are continuing to ignore the extremely obvious language in 128, I think perhaps because it destroys your entire argument. "128 only applies to licensees" was not a very strong argument on your part, as upon even a cursory reading of 128, it's blatantly untrue.
 
I did not mis quote. Notice the law says "or" not "and". I posted the parts relevent to the OP. The "without" is not relevent as the purchase is "within" in the OP.
OK so it's a partial quote. The problem is the part you omit is relevant to the interpretation of some of the phrases you are talking about.
So answer my original question:

Then who are they talking about under 128B when they say... Any resident of the commonwealth who purchases or obtains a firearm, rifle or shotgun or machine gun from any source within 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?

Who is the source of the firearm?
I answered it; you obviously disagree with my answer. I read and understand the entire sentence to mean that the source could be someone outside the commonwealth. Such a person, who by federal law would have to be a dealer, is not a licensee under 122 or an authorized seller according to 128A.
Yes....a reporting requirement for purchases made from non-licensees
No. It is a reporting requirement for purchases not covered by the reporting requirement in 128A.
Where does 128A prohibit sales?
128 defines who may sell a gun. Then the very first phrase of 128A, "The provisions of section one hundred and twenty-eight shall not apply to any person who..." indicates that it extends the definition of who may sell a gun from 128.
128A dictates reporting requirements for sales made by LTC/FID holders.
Among other things
128B dictates reporting requirements for purchases made from non-LTC/FID holders or gunsmiths/dealers.
No. It is a reporting requirement for purchases not covered by the reporting requirement in 128A.

Regardless, I'm not arguing reporting requirements per say. The question is who may sell a gun according to sections 128, 128A and 128B. As I've said I read 128 and 128A to be the laws defining who may sell a gun, with 128B only defining reporting requirements not covered by 128A, not further defining lawful sellers beyond 128 or 128A.

Kevin9...I am more or less making a debate that there can be very intelligent arguments made for the sale of firearms by "non-licensee's".
I understand what you are saying, and I disagree with you. I don't see that the laws as written support what you are arguing.
I would not recommend it but the argument can most definately be made. There are some at EOPS who agree with me. There are others who do not.
That may be true, but the problem is that EOPS staff are not the ones who make the practical decisions about whether certain sales are legal or not.
In essence...the law is very poor and we should leave it at that![wink]
I 100% agree that the law is very poor and that it is written very poorly too. I often think that whoever wrote it must have failed 7th grade English. The problem is that as a law-abiding citizen complying with such awful laws is most difficult if one cannot understand them.
 
OK, jumping into the fire... first off normal disclaimer.... nothing written here is to be construed as offering legal advice..... I am a lawyer and while I don't practice in the gun law arena I agree with Len S' interpretation. Also, a lot of this is moot because almost all courts around the country have held that a student has not changed his residence, thus the seller is not a MA resident. Residence changes when a person moves from one jurisdiction to another with an intent to stay indefinitely. Usually college students are construed to be planning to stay for school and then places unknown, possibly where they study, possibly elsewhere. Until they are PLANNING on staying in that place indefinitely they are still a resident of their home state for legal purposes, even if they register their car, get a license and register to vote (although all these things can help in the argument that they are planning on staying indefinitely and thus their residence has changed.
 
I agree 100% with that interpretation, jon33ma... a student has never really been considered a resident of the state he/she goes to school in.
 
almost all courts around the country have held that a student has not changed his residence, thus the seller is not a MA resident.

Thanks for your input on residency, jon33ma. I have heard that common law definition from multiple sources, and have always treated it as the definition to use. But, with ATF Rul. 80-21 stating that they consider college students as local residents when they are residing in their dormitory or off campus housing, the presumption would be that they would never charge a student for purchasing a handgun in the same state as they attend school, so it would never make it to a court to rule upon.

And one would hope that if ATF did try to charge them with it, that the courts would look leniently upon the defendant if it was shown that they were acting in good faith after reviewing ATF Rul. 80-21.

Now, not being a lawyer myself, I don't know if any of that would fly; but it would seem reasonably unjust if ATF could tell you one thing and then charge you anyway for following their formal written advice.
 
And one would hope that if ATF did try to charge them with it, that the courts would look leniently upon the defendant if it was shown that they were acting in good faith after reviewing ATF Rul. 80-21.

Now, not being a lawyer myself, I don't know if any of that would fly; but it would seem reasonably unjust if ATF could tell you one thing and then charge you anyway for following their formal written advice.

The ATF rule follows their rule wrt Military that are assigned a duty station outside their official state of residence, so it makes perfect sense to me. It's the same as their snowbird ruling.

The student thing is all moot in MA anyway since MA's official position is that students always maintain ONLY residency in the state that they graduated high school. Therefore, most cities/towns will NOT issue them a Resident FID/LTC and blow them off. They can obtain a NR LTC if they wish. [The state fears giving in-state tuition deals to NRs and thus their almost unwavering rule.]
 
The student thing is all moot in MA anyway since MA's official position is that students always maintain ONLY residency in the state that they graduated high school. Therefore, most cities/towns will NOT issue them a Resident FID/LTC and blow them off. They can obtain a NR LTC if they wish. [The state fears giving in-state tuition deals to NRs and thus their almost unwavering rule.]

Yes, good point. That makes it completely moot here in MA.
 
I answered it; you obviously disagree with my answer. I read and understand the entire sentence to mean that the source could be someone outside the commonwealth. Such a person, who by federal law would have to be a dealer, is not a licensee under 122 or an authorized seller according to 128A.


Kevin...I hate to keep beating this but you are not answering the question.

Once again my original question:

Then who are they talking about under 128B when they say... Any resident of the commonwealth who purchases or obtains a firearm, rifle or shotgun or machine gun from any source within 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?

Again.....Who is the source of the firearm within Ma?
 
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I know that I should really stay out of this migraine-causing-argument about how many angels can dance on the head of a pin, BUT . . .

Doe 128B make more sense in the following scenario (input from HC and other LEOs who deal with this are solicited and valued, at least by me):

- MGLs allows a chief to revoke a LTC for "suitability",

- MGLs REQUIRES confiscation of all guns, ammo, mags, etc. if LTC is revoked,

- MGLs ALLOWS the former LTC-holder to designate disposition of confiscated guns/ammo/mags/etc. to ANY LTC-holder. [This presumes revocation is NOT related to a 209A, as MGL PROHIBITS disposition in that case except to an FFL.]

- It is my understanding from LE sources that said disposition would be done on FA-10s (unlimited in this case) to new owner. In this case, person disposing of guns NO LONGER HAS A VALID LTC.

So is this one of the purposes of 128B? Might that not also then cover the person who just let it expire and didn't renew (asked, I don't know the answer wrt MGL)?


[I know I'm going to regret even raising this issue! [thinking] ]
As I read it 129D is law that allows the transfer of guns in this situation. 129D is referenced by 128A which would mean that the reporting would be done by the sending person.
 
Kevin...I hate to keep beating this but you are not answering the question.

Once again my original question:

Then who are they talking about under 128B when they say... Any resident of the commonwealth who purchases or obtains a firearm, rifle or shotgun or machine gun from any source within 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?

Again.....Who is the source of the firearm within Ma?
Nobody. This badly written law only effectively applies to purchases by a residents from out of state sources. Furthermore it only talks about reporting, not who may sell, therefore it does not apply to the discussion.
Think about LenS scenario...
Already did. Not applicable. The case he raised is not a sale and is already covered in 128A by its reference to 129D.
 
If I bought a stolen gun from an illegal Russian imigrant in a crack house in Fitchburg, 128B would require me to fill out an FA-10 on the deal.

First MackDaddy T (http://northeastshooters.com/vbulletin/showthread.php?t=47829&page=3), and now an illegal Russian immigrant? jdubois, you sure do know a lot of shady people in Fitchburg...[wink]


OK, but seriously, I have a question that sort of pertains to this. I know that federal law only allows FTF transfers of firearms between residents of the same state. But would federal law allow for two residents of the same state who were simultaneously together out of state to do a FTF transfer? Meaning if Person One had a gun for sale in the classifieds, Person Two responds, both live in Mass., but they meet in NH to do the FTF, would this be legal? If it were legal, would the OP be covered if the transfer had been done like that, out of state FTF, assuming that the student had residency here?

I know it's a very long shot, but that's what the Internet's for, I suppose.
 
would federal law allow for two residents of the same state who were simultaneously together out of state to do a FTF transfer?

Yes and no. Federal law allows this scenario, but you cannot bring a gun back into your state of residence that you acquired out of state (with the usual exceptions- FFL long gun transfer, inheritance, etc). So you could do the transfer legally, but then your stuck.
 
Yes and no. Federal law allows this scenario, but you cannot bring a gun back into your state of residence that you acquired out of state (with the usual exceptions- FFL long gun transfer, inheritance, etc). So you could do the transfer legally, but then your stuck.

Well I learned something new anyway. Thanks for tolerating my questions. When I was 5 or 6, my dad told me "You are the king of 'what if'." [grin] Looks like I'm unchanged.
 
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