Other State Residency Purchases

[RKG]

1. Len beat me to it, but the quoted material is from the regulations promulgated by BATF, not the statute enacted by Congress, and the statute controls.

2. The statement part of the regulations, to wit: " State of residence. The State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State." is more or less correct, so long as it is understood that "resides" in the tail end means permanent, indefinite residence. The error is in Example 2. The examples are not the statement of the legal rule, and the error in the Example is patent.

(Not to make this overly complicated (probably already too late), but the world of federal administrative regulations is divided into two provinces. There are "interpretive regulations," which all agencies may promulgate. These do not purport to make law and are not enacted under any delegation from Congress to make law. They are not entitled to the force of law or to deference by a Court. The sole function of "interpretive regulations" is to give the world notice as to how the agency interprets the governing statute. Then there are also "legislative regulations." These may be promulgated only to the extent of a statutory authorization by Congress to the agency to "fill in the blanks." For instance, a statute may say that "the maximum permissible level of tritium emissions into the navigable waters is that level determined by the Agency from time to time to be below the level of injury to the average exposed individual." (This is just an example, though there are regulations of this sort.) With a "legislative regulation," once the agency supplies the specific, the Court is limited to ruling on whether it was delegated the power to do so; if so, its exercise of that power has the force of law. I'm reasonably certain that the BATF regulation we are looking at is an "interpretive regulation.")

3. I say again that I do not know what would happen if an individual, relying on the erroneous Example 2, purchased a handgun in the state in which he had a summer home but was not the state of his domicile. But neither would I risk it (or advise anyone else to) in order to find out.

 

[Nickle]

RKG, when I was stationed in El Paso, Texas, in the Army, was I permanent and indefinite?

Definitely not!

I guess both the ATF and I are apparently full of Crap and dumber than Bricks.

I suggest you DON'T tell them they are, though, especially the Field Agent in the Hartford Office, that does Compliance.

 

[RKG]

I promise.

(The example of an active duty serviceman's relationship to a PCS is not a good one, because it is affected by the provisions of the Soldier's and Sailor's Civil Relief Act of 1950. But in purely common law terms, a soldier is not a domiciliary of his PCS state unless and until he purchases real estate there with the intention of making it his permanent home.)

 

[Nickle]

The whole basis of this is the "Snow Birds".

Let's not refer to certain "Questionable" states, such as MA, CT, NY, NJ or MD.

Let's talk Florida and either Vermont or New Hampshire. All have fairly easy state laws that don't gum this up.

"Snow Bird" maintains 2 residences, is retired. owns a House and half acre in both states. Lives from November to May in FL, May to Nov up North. Votes in FL, Pays Income Tax in FL. Been doing this 10 years, plans on doing it until death.

Can "Snow Bird" buy a handgun in the Northern State in July? ATF says yes. CFR says yes. This has been the way it is for the last 37+ years. No new law or "interpretation" has been made. Why is illegal?

 

[Scrivener]

RKG, when I was stationed in El Paso, Texas, in the Army, was I permanent and indefinite?

Definitely not!

I guess both the ATF and I are apparently full of Crap and dumber than Bricks.

No, more likely you picked an egregiously bad example, as active-duty military come under special regulations wholly inapplicable to the OP's query. Superfluous use of capital letters does not enhance the example.

Oh - here are some REAL-WORLD (as in, APPLIED) examples of domicile law analysis, as opposed to some Feeb's personal interpretion:

BROGAN v. BROGAN, 59 Mass. App. Ct. 398, 401 (2003)

"Inhabitant" imports domicile; "resident" imports making a home in a place for purposes of employment or to live with a child, without necessarily giving up another, more permanent, abode. Martin v. Gardner, 240 Mass. 350, 353-354 (1922).


BOLTON v. KRANTZ, 54 Mass. App. Ct. 193, 194 (2002)

We must determine here where a prison inmate "lives" within the meaning of G.L.c. 223, § 1, the venue statute for transitory actions.[fn2] We conclude that, for purpose of the statute, an inmate "lives" both in the county where he maintains his domicile and in the county in which he is incarcerated at the time suit is brought.

Horvitz v. Commr. of Revenue, 51 Mass. App. Ct. 386, 391 (2001)

4. Burden of proof. The board allocated to Horvitz the burden of proof - and specifically the burden of persuasion - on the issue of change of domicile. Allowing that the commissioner was required to produce evidence of a domicile change upon a prima facie showing by the taxpayer that his domicile originally was elsewhere (a showing plainly made here), the board nevertheless ruled that the burden of persuasion on the issue would remain throughout with the taxpayer. This latter ruling was error.

The rules governing determinations of domicile are generally accepted. Domicile is "the place of actual residence with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode." Commonwealth v. Davis, 284 Mass. 41, 50 (1933). Thus, a person may have a residence in one place and a permanent home (i.e., a domicile) in another. Hopkins v. Commissioner of Corps. & Taxn., 320 Mass. 168, 173 (1946). Everyone has a domicile, and that domicile is not lost until a new domicile is actually acquired. Commonwealth v. Davis, supra at 49. "A new domicil `is acquired only by a clear and honest purpose to change, which is carried into actual execution.'" Mellon Natl. Bank & Trust Co. v. Commissioner of Corps. & Taxn., 327 Mass. 631, 641 (1951), quoting from Thayer v. Boston, 124 Mass. 132, 147 (1878). "A change of domicil takes place when a person with capacity to change his domicil is physically present in a place and intends to make that place his home for the time at least. . . ." Hershkoff v. Registrars of Voters of Worcester, 366 Mass. 570, 576-577 (1974). The Restatement (Second) of Conflict of Laws § 11 comment a (1969) defines a person's domicile as "usually the place where he has his home." "Home" is defined as "the place where a person dwells and which is the center of his domestic, social and civil life." Id. § 12. See Reiersen v. Commissioner of Rev., 26 Mass. App. Ct. 124, 125 (1988). "It is a general rule that the burden of showing a change of domicil is upon the party asserting the change." Mellon Natl. Bank & Trust Co. v. Commissioner of Corps. & Taxn., supra at 638. See Commonwealth v. Davis, supra at 49 ("The burden of proof that his domicil was changed rested on the defendant because he is the one who asserted that such change had taken place").

 

[TonyD]

Hey, Scriv (Feeb), how about making your point without being an eletist ass??

We all appreciate your knowledge and contribution, however, I abhore your bullshit. How about you curtail it a bit or go find one of your "bar-buddies" site to post on.

 

[LarrySav]

The rules governing determinations of domicile are generally accepted.

And the rules vary by state. No one is trying to claim that they can visit a Mass. vacation home and buy a handgun on the weekend. I don't see how Mass. residency cases apply.

As a Mass. resident, I purchased a handgun in Maine while making a summer home in Maine in property I own. Maine has a state photo ID, which does not require residency, and that is all that's required under Maine law to buy gun in Maine (state issued ID).

The dealer I used was unaware of the process, but the BATF straightened him out.

I expect Mass. officials to not react favorably if this procedure is used to allow parttime Mass. residents to import handguns into that state without Tom Reilly's approval. For that reason, the handgun was never brought into Mass. In fact, I took all my guns and left that sorry place four years ago.

I fail to see how any state or federal laws are violated by this.

 

[Scrivener]

And the rules vary by state. No one is trying to claim that they can visit a Mass. vacation home and buy a handgun on the weekend. I don't see how Mass. residency cases apply.

Because, whether you realize it or not, the analysis is remarkably consistent. A person can have ONE domicile and the criteria by which that domicile are clear and consistent. I'd have thought the citations from Black's Law Dictionary would have made that clear to you, but apparently not.

It logically follows that the application of those criteria in Mass. cases will be reflected in the analysis by other states' courts.

 

[KMaurer]

...
The rules governing determinations of domicile are generally accepted. Domicile is "the place of actual residence with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode." Commonwealth v. Davis, 284 Mass. 41, 50 (1933). Thus, a person may have a residence in one place and a permanent home (i.e., a domicile) in another. Hopkins v. Commissioner of Corps. & Taxn., 320 Mass. 168, 173 (1946). Everyone has a domicile, and that domicile is not lost until a new domicile is actually acquired. Commonwealth v. Davis, supra at 49. ...

Thank heavens I don't have to rely on Massachusetts courts to determine what I'm allowed to do when I'm in some other state. Back to my example: After my wife decides to retire, we plan to live roughly half the year in our home in one state, and the remainder in our other home, located in a different state. Now whichever home we're at, it should be clear to anyone that we don't intend to "remain permanently or for an indefinite time" and we most definitely do have a "certain purpose to return to a former place of abode." So I gues neither qualifies as our "domocile". But according to the same bunch of geniuses, "[e]veryone has a domicile, and that domicile is not lost until a new domicile is actually acquired," so it must be the last place we lived, despite the fact that we don't live there now, own no real or other property located there, and have have absolutely no intention of ever setting foot there again. Obviously the citations provided were not attempting to address the very real scenario I'll find myself in (if the stress of dealing with lunatic Massachusetts politicians and judges doesn't kill me first!), and any attempt to apply them to such a situation leads to patent absurdities that should be obvious even to an attorney (unless, of course, he's simply asserting it in a sophistic effort to show how much more clever he is than everyone else).

When it comes to buying firearms, I'll continue to do exactly as I have ever since GCA '68, and simply rely on 18 USC 921 & 922, CFR 178.11 and the laws of the state I happen to be living in at the time. I really couldn't care less what the legislature and/or courts of some other state think of the whole thing.

Ken

 

[LarrySav]

It logically follows that the application of those criteria in Mass. cases will be reflected in the analysis by other states' courts.

Perhaps they will be reflected differently. Many of the states vary in residency requirements for voting. Even if all the states have similar requirements for determining a domicile, what does that have to do with part time residency?

What matters is how the term "residency" is applied at the federal level. GCA '68 uses the term residency and the CFR's interpret that to allow for part time residency.

My second amendent rights to purchase a handgun are not suspended because I choose to reside in another state for a time.

This has been allowed for so long, I'm surprised that people still debate it.

 

[Scrivener]

Back to my example: After my wife decides to retire, we plan to live roughly half the year in our home in one state, and the remainder in our other home, located in a different state. Now whichever home we're at, it should be clear to anyone that we don't intend to "remain permanently or for an indefinite time" and we most definitely do have a "certain purpose to return to a former place of abode." So I gues neither qualifies as our "domocile" [sic].

Hardly. You will be registered to vote in one state (unless you are illegally registered) and have your drivers license from one state (barring some aberrant state practice to the contrary, which is highly unlikely). Ergo, the state in which you are so registered and/or licensed would be the primary residence; i.e., your "domocile."

That should be pretty simple to understand, even for wanna-be's.

 

[LarrySav]

Hardly. You will be registered to vote in one state (unless you are illegally registered) and have your drivers license from one state (barring some aberrant state practice to the contrary, which is highly unlikely).

What do voting and driving have to do with purchasing a handgun?

Ergo, the state in which you are so registered and/or licensed would be the primary residence; i.e., your "domocile."

So? Again, what does this have to do with purchasing a handgun?

 

[KMaurer]

So get your F'ing story straight, Keith. The cites you posted made no mention of drivers licenses or voter registration; I simply followed the exact definitions of domocile from the court opinions that you provided.

Now where do you get the silly and totally conunterfactual idea that a person can only hold a driver's lincense and be registered to vote in a single state, and that both of those must be the same state? Wake up and smell the coffee. Case in point. My inlaws used to regularly split their time between two states. They owned property, and paid utilities and taxes in both. When they lived in state A, the registered to vote in state A, and did vote there; when they moved to state B, then that's where they registered and voted. (Now please don't get all confused and think that they were residents of two state simultaneously, something nobody has ever asserted is possible on this forum.) We plan on doing the same thing upon retirement, only with different states than they did. During six months of the year, one state would qualify as a "primary residence" according to all the criteria you've stated; during the other six months the other state would. Why is that so difficult for you to grasp? Or are you simply pretending that somebody has been talking about being a resident of two different states simultaneously in order to dazzle everyone with your ability to cite court decisions?

Just recently my son moved from Florida to New Hampshire, and neither state required that he do so at midnight on December 31. As a result, he held a drivers license to two different states, was registered to vote in two different states, owned property and paid taxes in two different states, all during a single year, and without any professional legal assistance. Why I'd bet that if he were to decide to move across the river to Vermont he could manage to do that as well, making it three different states, and again without the "help" of a lawyer.

Ken

 

[Scrivener]

What do voting and driving have to do with purchasing a handgun?

Indicia of residency, as discussed in detail these previous 3 pages.

So? Again, what does this have to do with purchasing a handgun?

Yet again, see above.