Is this legal?

[quinnt]

I can't really find anything on this in the MGL's.


If I'm a NH resident but lend my father who lives in Massachusetts and is an FID holder a shotgun for hunting/home defense are either of us in violation of any laws?

Thanks

 

[Jose]

When it comes to NH and federal law, I say no.

When it comes to MA, who the hell knows? Everything and anything may be illegal at some time or another there......

 

[HooVooLoo]

Didn't we just leave this party?

The MGLs state that possession has to do with a licensed person, not a licensed owner.

As for you and your shotgun being in NH, your father would have to be the one to drive back to MA with the gun safely stored as per MA storage/transport MGLs during the drive back across the border into MA, since you need a FID card to possess a shotgun in MA. Cake-walk.

 

[jar]

IIRC hunting is fine, but home defense isn't, federal law wise. I'm pretty sure the federal law about interstate lending of firearms references sporting purposes.

 

[jar]

Here's the scoop from the Calguns Foundation FAQ, with the cites to federal law:

Can I borrow a firearm from a person who resides in a different state than I do?

Yes, if it is a temporary loan for a lawful sporting purpose. If the loan was made in a state other than your state of residence, note that Federal law prohibits you from transporting the firearm back to your own state. Ref: 18 USC 922(a)(3), 18 USC 922(a)(5)(B)
Can I loan a firearm to a person who resides in a different state than I do?

Yes, if it is a temporary loan for a lawful sporting purpose and the loan is made within your state of residence or you lawfully transport the firearm to the state in which the loan is made (or ship it to the borrower if they have a FFL). Ref: 18 USC 922(a)(3), 18 USC 922(a)(5)(B)

ETA pasting lost the link: http://codes.lp.findlaw.com/uscode/18/I/44/922

 

[quinnt]

Thanks guys.

 

[DickWanner]

Didn't we just leave this party?

The MGLs state that possession has to do with a licensed person, not a licensed owner.

As for you and your shotgun being in NH, your father would have to be the one to drive back to MA with the gun safely stored as per MA storage/transport MGLs during the drive back across the border into MA, since you need a FID card to possess a shotgun in MA. Cake-walk.

Again, I thought we just went over this

According to jar's quote, the OP would have to bring the gun to his father in MA if the father were to use it for hunting in MA. No home defense as the courts haven't ruled shooting criminals as a sporting purpose... yet.

 

[HooVooLoo]

A ton of gobbledeygook in there.

Here's my trimmed down interpretation of it, straight from the HR. http://uscode.house.gov/download/pls/18C44.txt

(a) It shall be unlawful for any person to transport into or receive in the State where he resides any firearm outside that State, except;--->

(This paragraph shall not apply to the transportation or receipt of a firearm obtained in conformity with subsection (b)(3) of this section.)

(b) (3)<---any firearm to any person who the licensee knows does not reside in the State in which the licensee is located, except that this shall not apply to the delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee is located if the transferee meets in person with the transferor to accomplish the transfer. (It also shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes.)

I understand that there is language in there about being a "licensed dealer, importer" etc., but (a) (3) seems to make it clear that this bit applies to anyone that is NOT a licensed importer, dealer etc.

Read through it all.

IANAL, I cannot give legal advice.

 

[GSG]

As I explained in the thread that DickWanner linked to, the loan is likely not legal under federal law, but a non-resident can legally possess non-large capacity long guns in Mass. without any license, as long as it's legal in their home state.

 

[drgrant]

According to jar's quote, the OP would have to bring the gun to his father in MA if the father were to use it for hunting in MA. No home defense as the courts haven't ruled shooting criminals as a sporting purpose... yet.

Has anyone actually been prosecuted federally for violating that provision in the law? I'd love to see the case law on it. This is more of a question than it is a statement, although I have to wonder what kind of hyperbole the prosecutor would have to use in order to get that law to "fly" successfully in court. I'd love to see the prosecutor say "According to federal law, it is illegal to use a firearm borrowed from a resident of another state for self defense. "

I doubt it would ever fly in front of a jury unless ever juror is a Brady/VPC fume breather.

The operative problem, of course, is that if you got indicted federally, you're going to get punished at least in the wallet area (to the tune of a smoking crater with probably most of your net worth in it) to get a competent federal gun lawyer, even if the chances of actually getting prosecuted for that are in the slim to none range.....

-Mike

 

[GSG]

Has anyone actually been prosecuted federally for violating that provision in the law? I'd love to see the case law on it.

Good idea. I'll poke around and see if I can find any caselaw on it.

 

[GSG]

Has anyone actually been prosecuted federally for violating that provision in the law?

I found some case law.

443 F.2d 860

UNITED STATES of America, Appellee,
v.
Christos STAMAS, Defendant, Appellant.

No. 71-1002.

http://ftp.resource.org/courts.gov/c/F2/443/443.F2d.860.71-1002_1.html

United States of America, Appellee, v. Homayoun Bazargan, Appellant., 992 F.2d 844 (8th Cir. 1993)

http://vlex.com/vid/united-states-america-appellee-bazargan-37539000

WOODROW WILSON MILES, PETITIONER V. UNITED STATES OF AMERICA

No. 89-7858

In The Supreme Court Of The United States

October Term, 1990

http://www.justice.gov/osg/briefs/1990/sg900817.txt

No. 96-1080

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

BRIAN KEVIN CLEMENT, PETITIONER

UNITED STATES OF AMERICA

http://www.justice.gov/osg/briefs/1996/w961080w.txt

UNITED STATES of America, Plaintiff,
v.
James F. KRAASE, Defendant.
No. 71-CR-176.
United States District Court,
E. D. Wisconsin.
Jan. 25, 1972.

http://www.abanet.org/gunviol/docs/krase.pdf

444 F.2d 1037

UNITED STATES of America, Plaintiff-Appellee,
v.
Richard A. LAUCHLI, Jr., Defendant-Appellant.

No. 18595.

United States Court of Appeals, Seventh Circuit.

June 10, 1971.

http://bulk.resource.org/courts.gov/c/F2/444/444.F2d.1037.18595.html

FWIW, it looks like in every one of these cases the guns were actually sold, not borrowed.

I'll keep looking for more, I believe there's one case that touches on "sporting purposes."

 

[GSG]

Found one.

SMITH v. UNITED STATES, 508 U.S. 223 (1993)
508 U.S. 223
SMITH v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 91-8674

Argued March 23, 1993
Decided June 1, 1993

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=508&invol=223

It says in part:

When, for example, the statute provides that its prohibition on certain transactions in firearms "shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes," 18 U.S.C. 922(a)(5)(B), (b)(3)(B), I have no doubt that the "use" referred to is only use as a sporting weapon, and not the use of pawning the firearm to pay for a ski trip. Likewise when, in 924(c)(1), the phrase "uses . . . a firearm" is not employed in a context that necessarily envisions the unusual "use" of a firearm as a commodity, the normally understood meaning of the phrase should prevail.

That would seem to be sporting in an honest sense of the word. I don't think self defense would fly if that was the purpose of the loan, but it would appear that if the purpose of the loan was for it to be used in trap shooting or hunting, and it just so happened to be used for self defense, that it would be legal. Intent seems to be a big factor here.

Outside of abstract legal theory, it still strikes me as an incredibly bad idea to loan a gun across state lines. Take it to an FFL and transfer it back and forth that way seems to be the safest route.