Background checks and trading

[SA Friday]

Yeah, I have yet to come up with a scenario where a legal transfer could occur with >15rd mags, other than maybe adding someone to a trust you created prior to today that held your mags. And I'd never recommend that anyway, even if it was legal. The "person" clause in 1224 makes that sketchy at best anyway. Any thoughts on how well the "trust" method of mag ownership is going to hold up?

Don't know, but there is precedence for it via NFA items. I put everything into my gun trust.

[james_bond_007]

... Any thoughts on how well the "trust" method of mag ownership is going to hold up?

I believe it will hold up. As I mentioned in another post, laws are very specific about what they allow and prohibit. 1224 goes to great lengths to provide rules for what a "person" can and cannot do. It never addresses a) trusts, b) business ownership, or c) co-ownership (multiple persons as an owner and each having constructive possession). It does not explicitly allow them, nor does it prohibit them. It just does not address them.

As such, 1224 pretty much "does not apply" to trusts as "owners". Now, 1229, had language to deal with multiple owners and trusts. 1224 does not.

I really hope an injunction will occur and the law be proven unconstitutional.

Note: This post is my opinion and is not to be construed as legal advice.

[james_bond_007]

I also have issues with the fee for 1229, from a "constitutional right" perspective.

The law, as written, allows no recourse for someone unable to pay the $10 fee. Granted, $10 is small, but yet there is no clause to deal with "If you can show that you are unable to pay the fee, it will be waived." This type of clause is available for other "rights" such as needing permits to "assemble" in a park etc....most everything I have seen on rights, has a "if unable to afford it..." alternative.

So it seems OK to ASK someone to pay for a permit to assemble in a public park if they can, yet waive it if they cannot.
They STILL are able to exercise their Right to Assemble whether they CAN or CANNOT afford the fee. The right is not being denied.

However 1229 has no provision for those that cannot afford the $10.
In essence, one must ALWAYS pay to exercise a right to bear arms.
Those that cannot pay, lose this right.

Sounds kind of funny, doesn't it.

The right to bear arms is identified as natural (viz. people have this right because they are born and are persons) and an inalienable (viz. "can't be taken away") right. This right has not been bestowed upon them by the government (legal rights). The Bill of Rights does not GRANT the right, it merely recognizes it exists and declares that the government or anyone else cannot take it away.

So, in my opinion (as you know I'm full of opinions and full of "other" stuff), 1229 alienates (viz "takes away") some people's 2nd Amendment rights, particularly, those persons that cannot afford the $10.

Even if it is ONE person, it makes the law, as sloppily and hastily written as it is, unconstitutional, for potentially denying a right that is guaranteed to "NOT be able to be taken away".

NOTE: This post is my opinion and is not to be construed as legal advice.

[DingleBerns]

For law enforcement: you give your glock (or any gun) to a glock armor to be cleaned and get new parts installed. Glock armor has it longer then 72 hours. BGC needs to be done to give officer his gun back.

[BlasterBob]

Wasn't sure what you meant with your last comment. Non-FFLs can't do BGCs...?

I was just recalling that Non-FFL guys are not allowed to perform a BGC without going through a FFL dealer. - i.e. they can't do it themselves.

My example was merely listing one possibility of a seller/buyer getting a BGC without executing the 4473 and having to complete the transfer. This would be like my example shown in my post above where the buyer really had to back out at the last minute just before filling out the 4473 thus not completing the transfer.
This would be just one example of getting a BGC without a transfer since the process would be handled THROUGH a FFL. This would probably be very unlikely to ever happen but it would be pretty unfair to have the FFL do all this and then not make a transfer but looks he could certainly charge for his time etc.

[UnoTaco]

Process is no doubt confusing, even for the local FFL. The ones I typically use believes they need to take possession of the firearm, log it in to their books with both seller and buyer present. They will charge the $10 CBI fee plus an additional fee, like they would for an out of state transfer. The latter would run as much as $50. If the buyer fails, they would have to run an additional BGC on the seller to release the firearm to them. If the seller fails the BGC, they would hold the weapon until either the buyer or the seller cleared up what ever caused them to fail the BGC. They didn't say what they would do if neither could pass.

Not sure if they are aware of the net ATF guidelines posted above, but right or wrong, this is the process they believe is appropriate given the new laws. Good time to feed my knife fetish until the dust settles on this one, while supporting the Sheriff's suit to get it thrown out.

Okay, so I think I should pick at this just a tad more. Here's a scenario I've been thinking about. I, the seller, sell you a rifle private party. We meet at the FFL and you go over the rifle and agree to purchase. You pay me cash and I write you a receipt. I hand the rifle to the FFL and sign the papers to release it from my possession. I've got my cash, sale is done, and I leave. You sign the BGC paperwork. Turns out you had a crazy ex who put a restraining order on you without your knowledge. You now cannot hold in your possession the rifle you just bought. You call me up all frantic and I say, "sale is final, no refunds." What now? The FFL doesn't want to hold the weapon for long but you can't pick it up.

[ChadAmberg]

Okay, so I think I should pick at this just a tad more. Here's a scenario I've been thinking about. I, the seller, sell you a rifle private party. We meet at the FFL and you go over the rifle and agree to purchase. You pay me cash and I write you a receipt. I hand the rifle to the FFL and sign the papers to release it from my possession. I've got my cash, sale is done, and I leave. You sign the BGC paperwork. Turns out you had a crazy ex who put a restraining order on you without your knowledge. You now cannot hold in your possession the rifle you just bought. You call me up all frantic and I say, "sale is final, no refunds." What now? The FFL doesn't want to hold the weapon for long but you can't pick it up.

Possession and ownership are two different things.

First off, it's unlikely you'll find an FFL that will let you proceed in this scenario, right now it seems unlikely you'll find any FFLs willing to do private sales at all.

But if you do, it's simple. The buyer OWNS the firearm. He just cannot POSSESS it. He's more than welcome to pay the FFL a storage fee while he finds a buyer himself, or let the FFL put it up on consignment. He can do whatever he wants with the gun, just not take possession of it.

[BlasterBob]

Okay, so I think I should pick at this just a tad more. Here's a scenario I've been thinking about. I, the seller, sell you a rifle private party. We meet at the FFL and you go over the rifle and agree to purchase. You pay me cash and I write you a receipt. I hand the rifle to the FFL and sign the papers to release it from my possession. I've got my cash, sale is done, and I leave. You sign the BGC paperwork. Turns out you had a crazy ex who put a restraining order on you without your knowledge. You now cannot hold in your possession the rifle you just bought. You call me up all frantic and I say, "sale is final, no refunds." What now? The FFL doesn't want to hold the weapon for long but you can't pick it up.

I'd say just be a "big boy" about it and return his money LESS the full amount the FFL is going to charge you to get your rifle returned back to you IF the FFL has already entered the rifle info into his A&D book. If that won't work because YOU can't also pass the BGC to get your own rifle back, ask the FFL to put your rifle on consignment. I believe that according to the brand new ATF guidelines for the person to person (via FFL) transfers, the BGC can be executed prior to the firearm actually entered in A&D book. If the BGC is given the OK and the transfer is made, then normally the FFL will enter the required info into his BB within the prescribed time period. This is just how I interpret this unusual scenario but it's only a guess on my part.........
Before you violently disagree, check out the NEW ATF guidelines for such a scenario.

[UnoTaco]

I'd say just be a "big boy" about it and return his money LESS the full amount the FFL is going to charge you to get your rifle returned back to you IF the FFL has already entered the rifle info into his A&D book. If that won't work because YOU can't also pass the BGC to get your own rifle back, ask the FFL to put your rifle on consignment. I believe that according to the brand new ATF guidelines for the person to person (via FFL) transfers, the BGC can be executed prior to the firearm actually entered in A&D book. If the BGC is given the OK and the transfer is made, then normally the FFL will enter the required info into his BB within the prescribed time period. This is just how I interpret this unusual scenario but it's only a guess on my part.........
Before you violently disagree, check out the NEW ATF guidelines for such a scenario.

If those are the new guidelines then that seems more of a win-win. I don't have to deal with a disgruntled buyer because they can't pass BGC and I don't have to waste time working on trying to get my firearm back because of someone else's issue.

[james_bond_007]

Okay, so I think I should pick at this just a tad more. Here's a scenario I've been thinking about. I, the seller, sell you a rifle private party. We meet at the FFL and you go over the rifle and agree to purchase. You pay me cash and I write you a receipt. I hand the rifle to the FFL and sign the papers to release it from my possession. I've got my cash, sale is done, and I leave. You sign the BGC paperwork. Turns out you had a crazy ex who put a restraining order on you without your knowledge. You now cannot hold in your possession the rifle you just bought. You call me up all frantic and I say, "sale is final, no refunds." What now? The FFL doesn't want to hold the weapon for long but you can't pick it up.

Reminds me a lot of the Rich Wyatt/Gunsmoke issue that was on the Tom Martino talk show.
Rich made a lady BUY a gun before he ran a BGC.
She failed due to some unexpected reason, as you mention.
Only he would not refund her money (wrong) or give her the gun (right).
He wanted to sell it on consignment for her .
...more to the story , but in general, it went down similar to your story and CHADAMBERG'S comments.
So not as hypothetical as one might think...