FrugalFannie
NES Member
Is it true then that if a person (non-dealer) sold me a gun from another state that isn't "on the list" it's okay?
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Restricted List and Beretta Factory Repair Bull $!@&
- Thread starter dbhn
- Start date
Is it true then that if a person (non-dealer) sold me a gun from another state that isn't "on the list" it's okay?
Chris
NES Member
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Federally, you can not buy any guns privately from the resident of another state without dealing with an FFL. For a Handgun, it has to be an FFL of the state YOU reside in and the list will count. For a long gun, you can buy from an FFL out of state. But then there is no long gun list.
A Manufacturer sending back a repair/replacement is NOT a sale.
A Manufacturer sending back a repair/replacement is NOT a sale.
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For what it's worth I recently sent a handgun to Beretta for repair and they sent it directly back to my house with no hassle (in fact they were super fast about it). The only problem I encountered was convincing either UPS or Fedex that they can actually ship guns. Fedex won, but only after about a half dozen phone calls and loads of frustration. Next time I have no intention of telling them there's a gun inside the box!
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Most manufacturers will return the same gun, however, it is uncommon to find a major manufacturer that will replace with a different serial numbered gun even though they are permitted to do so under federal law.
Rusty, I had no problem shipping other than needing to go to a UPS service center (not store) and they are only open M-F. That was a pain. The other pain was the $40 price tag. Told them it was a firearm and both guys working seem to have dealt with it many times before.
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Even so, many manufacturers voluntarily refuse to ship to MA dealers. They figure it's easier to make friends with the AGs office than risk having to spend legal fees just to service a tiny state with a low gun ownership rate.
So, the saga continues. I just got off the phone with the rep and now am about to email the Legal Counsel to get it straigthened out. He is expecting my email. Should be interested and I'll have it all in writing.
Rep said they would need a letter from me from the AG's office stating it was OK to ship in a new Tomcat. What bull. She said is was the law and not Beretta's policy, which I argued and hence how I got to the legal counsel. She claimed it was because their will be a replacement fee (not repair cost) and a new serial number.
I'll keep you all up to date.
Rep said they would need a letter from me from the AG's office stating it was OK to ship in a new Tomcat. What bull. She said is was the law and not Beretta's policy, which I argued and hence how I got to the legal counsel. She claimed it was because their will be a replacement fee (not repair cost) and a new serial number.
I'll keep you all up to date.
Lens- sure you can blame MA and Beretta however we have to realize that as much as most of us love guns as a hobby/sport, manufacturers are running a business. Even if something is "legal" it may still not be worth the pursuit of this business and to "potentially" have to pay attorney fees to get out of possible messes (or to just figure out our majorly F'd up laws before hand). Some folks here choose to boycott Midway and countless others for chosing not to deal with MA... to me it's makes sense as much as it sucks for us.
This was part of my argument with Beretta. They told me it was the law so I argued. I did tell them that if they told me it was Beretta policy I would understand, but not agree.
Seems like for them to get out of it (i.e. get me off their back) they are going to need to say "I realize it is legal but we still are not doing it."
I'd like to see the day that any MA AG will send a letter to any mfr and tell them it is legal to ship/sell any gun in MA.
I won't stand around holding my breath in the meantime however!
I won't stand around holding my breath in the meantime however!
This should be interesting. This is the response I got from the lawyer after bugging him about my email.
"I got it and I dictated a reply to you over the weekend that my assistant
is typing now." {That was two hours ago....}
Seems real down to earth.
By the way, I used a good portion of the language that LenS and Chris supplied my in this thread in my letter. Thanks guys.
"I got it and I dictated a reply to you over the weekend that my assistant
is typing now." {That was two hours ago....}
Seems real down to earth.
By the way, I used a good portion of the language that LenS and Chris supplied my in this thread in my letter. Thanks guys.
Looks like I am SOL. Here is my email to their lawyer and his response.
MY EMAIL:
As you know, I have been in contact with Cheryl regarding my Beretta Tomcat repair.* I have been informed that the gun is not
repairable and you are willing to supply a replacement or a replacement value towards another gun.* Which is very generous.* I do highly prefer getting the Tomcat replaced versus another gun as I paid a premium for this hard to find item in MA.
So, I have been told by Cheryl that Beretta is unable to ship a new Tomcat into MA and hence we are not sure what to do in regards to my situation.* I have done some research on my own regarding the situation Federal, and MA laws and have received input from an attorney.
Here is what I have found:
There is nothing in the Mass or Fed laws that prohibits Beretta from replacing the gun with the exact same model gun, with same or different S/N, shipped directly back to me. There would be no "transfer." I would simply register the gun when I get it back (only applicable if a different S/N) on FA-10 form using the info on gun and my info. No "seller" info is necessary. There is nothing illegal in shipping a gun to the owner after gunsmithing or repair.
My situation is an interstate transaction, not intrastate and
therefore MA laws do not apply, and only the federal laws do. Surely you can ship guns back to customers in other states.* Furthermore, there is no "Restricted List" in MA.*The "Lists" apply to MA licensed dealers only, nobody else. For example, I believe it is perfectly legal for you to ship a gun not on the lists to an FFL in MA. They in turn cannot sell it to a MA resident but could sell it out of state via another FFL transfer.* The only reason a manufacturer would not would be fear of our Attorney General and not based on the law.
This is an issue that has been hashed out many, many times in the Massachusett's gun owner community.* Other manufacturers (as you have been in the past as well I am sure) have been in the same situation. Manufacturers such as Glock, Para, etc. all ship replacements guns/slides (with new S/N) to MA residents. I have not heard any past history regarding Beretta.
If it is deemed illegal to ship the new Tomcat back to me, can you kindly cite the law which would prohibit it and*why an interstate transfer back to a customer somehow falls under the State laws given the Constitution's definition regarding interstate commerce.
I am very surprised the Beretta does not have a clear cut understanding of the law and/or policy on this issue and I have had to go back and forth on this so many times.
Thank you for your time and attention to this.
THEIR RESPONSE:
Thank you for taking the time to write about the repair of your Beretta Tomcat pistol and the issues that we have in shipping a new gun to you in Massachusetts. Beretta U.S.A. was one of the leading supporters of litigation that attempted to overturn or at least clarify some of the burdensome and unnecessary regulations found in your state (the case was called ASSC v. Harshbarger), so we have quite a bit of experience not only in the current interpretation of these regulations, but also in understanding their legislative history and subsequent enforcement.
The regulation pertinent to your situation is found in rules promulgated by the Massachusetts Attorney General. In those regulations (specifically, 940 CMR Section 16), a "handgun purveyor" means "any person or entity that transfers handguns to a customer located within the Commonwealth of Massachusetts." One of the legal challenges raised in ASSC v. Harsbarger centered around the question of whether the Attorney General of Massachusetts had the authority to impose regulations on out-of-state manufacturers. The trial court and an appellate court upheld not only the authority of the Attorney General to promulgate regulations of this type, but because the conduct in question regulates the delivery of a product to a customer in Massachusetts, that regulation can be applied to out-of-state companies who seek to deliver a handgun either to a private consumer, a dealer or distributor located in Massachusetts. This is not an unusual holding and the ability of states to regulate the conduct of companies doing business with persons located within that state has long been upheld in the courts. In short, even if a company is located outside of Massachusetts and initiates a commercial activity outside the state, the fact that the recipient of the product is located in your state and receives the product directly creates nexus for purposes of establishing jurisdiction of the court and the laws of that state over the out-of-state corporation.
These same Attorney General regulations (including 501 CMR Section 7.00) apply to the transfer of individual firearms, meaning "a specific firearm identifiable by make, model and serial number…" These regulations prohibit the transfer of a handgun not on the Approved Roster for Massachusetts if that handgun is not on the list of firearms approved for sale in Massachusetts. The Tomcat pistol is not on this Approved Roster.
That being said, there are certain exceptions that allow the transfer of firearms to persons in Massachusetts but unfortunately none of these apply in your situation. (For example, a handgun manufactured before the effective date of the regulations—January 1, 1998—may be transferred without being on the Roster, however, Beretta U.S.A. Corp. does not have any Tomcat pistols made before that date. Similarly, we would be authorized to ship a handgun to you if we shipped fewer than five handguns to customers in Massachusetts per year, however, we send more handguns than that to customers in Massachusetts in a year and this exception, similarly, does not apply.)
The notion that a customer in Massachusetts who lawfully possesses a handgun cannot send it to a manufacturer and receive a replacement product in return is, to us, a nonsensible result of these regulations. We have raised this issue with the Attorney General's office and they have instructed us that they intend to enforce the regulations against an out-of-state company such as Beretta U.S.A. Corp. and that a non-approved handgun cannot be sent in replacement for one currently possessed by a citizen of your state. You might be able to obtain a letter of ruling from the Attorney General's office reversing this interpretation in your circumstance (if, for no other reason, than because public policy should encourage customers to obtain warranty repair and replacement of their firearm for the benefit of their own personal safety) and if you are able to receive such a letter, we would be pleased to receive a copy and respond accordingly.
I am sorry that these regulations place you in this unfortunate circumstance, but I am also in contact with the general counsels for various other handgun manufacturers and they have reached similar interpretations in the past.
Sincerest regards,
BERETTA U.S.A. CORP.
General Counsel
MY EMAIL:
As you know, I have been in contact with Cheryl regarding my Beretta Tomcat repair.* I have been informed that the gun is not
repairable and you are willing to supply a replacement or a replacement value towards another gun.* Which is very generous.* I do highly prefer getting the Tomcat replaced versus another gun as I paid a premium for this hard to find item in MA.
So, I have been told by Cheryl that Beretta is unable to ship a new Tomcat into MA and hence we are not sure what to do in regards to my situation.* I have done some research on my own regarding the situation Federal, and MA laws and have received input from an attorney.
Here is what I have found:
There is nothing in the Mass or Fed laws that prohibits Beretta from replacing the gun with the exact same model gun, with same or different S/N, shipped directly back to me. There would be no "transfer." I would simply register the gun when I get it back (only applicable if a different S/N) on FA-10 form using the info on gun and my info. No "seller" info is necessary. There is nothing illegal in shipping a gun to the owner after gunsmithing or repair.
My situation is an interstate transaction, not intrastate and
therefore MA laws do not apply, and only the federal laws do. Surely you can ship guns back to customers in other states.* Furthermore, there is no "Restricted List" in MA.*The "Lists" apply to MA licensed dealers only, nobody else. For example, I believe it is perfectly legal for you to ship a gun not on the lists to an FFL in MA. They in turn cannot sell it to a MA resident but could sell it out of state via another FFL transfer.* The only reason a manufacturer would not would be fear of our Attorney General and not based on the law.
This is an issue that has been hashed out many, many times in the Massachusett's gun owner community.* Other manufacturers (as you have been in the past as well I am sure) have been in the same situation. Manufacturers such as Glock, Para, etc. all ship replacements guns/slides (with new S/N) to MA residents. I have not heard any past history regarding Beretta.
If it is deemed illegal to ship the new Tomcat back to me, can you kindly cite the law which would prohibit it and*why an interstate transfer back to a customer somehow falls under the State laws given the Constitution's definition regarding interstate commerce.
I am very surprised the Beretta does not have a clear cut understanding of the law and/or policy on this issue and I have had to go back and forth on this so many times.
Thank you for your time and attention to this.
THEIR RESPONSE:
Thank you for taking the time to write about the repair of your Beretta Tomcat pistol and the issues that we have in shipping a new gun to you in Massachusetts. Beretta U.S.A. was one of the leading supporters of litigation that attempted to overturn or at least clarify some of the burdensome and unnecessary regulations found in your state (the case was called ASSC v. Harshbarger), so we have quite a bit of experience not only in the current interpretation of these regulations, but also in understanding their legislative history and subsequent enforcement.
The regulation pertinent to your situation is found in rules promulgated by the Massachusetts Attorney General. In those regulations (specifically, 940 CMR Section 16), a "handgun purveyor" means "any person or entity that transfers handguns to a customer located within the Commonwealth of Massachusetts." One of the legal challenges raised in ASSC v. Harsbarger centered around the question of whether the Attorney General of Massachusetts had the authority to impose regulations on out-of-state manufacturers. The trial court and an appellate court upheld not only the authority of the Attorney General to promulgate regulations of this type, but because the conduct in question regulates the delivery of a product to a customer in Massachusetts, that regulation can be applied to out-of-state companies who seek to deliver a handgun either to a private consumer, a dealer or distributor located in Massachusetts. This is not an unusual holding and the ability of states to regulate the conduct of companies doing business with persons located within that state has long been upheld in the courts. In short, even if a company is located outside of Massachusetts and initiates a commercial activity outside the state, the fact that the recipient of the product is located in your state and receives the product directly creates nexus for purposes of establishing jurisdiction of the court and the laws of that state over the out-of-state corporation.
These same Attorney General regulations (including 501 CMR Section 7.00) apply to the transfer of individual firearms, meaning "a specific firearm identifiable by make, model and serial number…" These regulations prohibit the transfer of a handgun not on the Approved Roster for Massachusetts if that handgun is not on the list of firearms approved for sale in Massachusetts. The Tomcat pistol is not on this Approved Roster.
That being said, there are certain exceptions that allow the transfer of firearms to persons in Massachusetts but unfortunately none of these apply in your situation. (For example, a handgun manufactured before the effective date of the regulations—January 1, 1998—may be transferred without being on the Roster, however, Beretta U.S.A. Corp. does not have any Tomcat pistols made before that date. Similarly, we would be authorized to ship a handgun to you if we shipped fewer than five handguns to customers in Massachusetts per year, however, we send more handguns than that to customers in Massachusetts in a year and this exception, similarly, does not apply.)
The notion that a customer in Massachusetts who lawfully possesses a handgun cannot send it to a manufacturer and receive a replacement product in return is, to us, a nonsensible result of these regulations. We have raised this issue with the Attorney General's office and they have instructed us that they intend to enforce the regulations against an out-of-state company such as Beretta U.S.A. Corp. and that a non-approved handgun cannot be sent in replacement for one currently possessed by a citizen of your state. You might be able to obtain a letter of ruling from the Attorney General's office reversing this interpretation in your circumstance (if, for no other reason, than because public policy should encourage customers to obtain warranty repair and replacement of their firearm for the benefit of their own personal safety) and if you are able to receive such a letter, we would be pleased to receive a copy and respond accordingly.
I am sorry that these regulations place you in this unfortunate circumstance, but I am also in contact with the general counsels for various other handgun manufacturers and they have reached similar interpretations in the past.
Sincerest regards,
BERETTA U.S.A. CORP.
General Counsel
How's your head doing after banging it repeatedly into a wall?
You might be best served taking whatever deal they're willing to give towards a Beretta that they'll actually sell here, sell it and hold onto the $$ until you can find a tomcat on the market here.
It seems that even if you personally deliver Martha Coakley to their front door and she tells them they can ship you a replacement frame, they probably won't do it.
You might be best served taking whatever deal they're willing to give towards a Beretta that they'll actually sell here, sell it and hold onto the $$ until you can find a tomcat on the market here.
It seems that even if you personally deliver Martha Coakley to their front door and she tells them they can ship you a replacement frame, they probably won't do it.
icyclefar
NES Member
I think you should ask for it, after all, what do you have to lose?
They are now ONLY offering me a refund for the cost I paid for it. I need to fax them a receipt and they'll send me a check. I think they are rather annoyed with me.
Anyway, that is a pretty fair deal on their end considering I am not the original owner, it is not under warranty, etc. They seemed to want to work with me but think their hands are tied.
The only downside is that there is one less MA compliant gun in the state and that the NES member that was going to buy it is not getting Tomcat...at least from me.
Anyway, that is a pretty fair deal on their end considering I am not the original owner, it is not under warranty, etc. They seemed to want to work with me but think their hands are tied.
The only downside is that there is one less MA compliant gun in the state and that the NES member that was going to buy it is not getting Tomcat...at least from me.
