Civil Rights Law

Firearm Sales: Can I Sell a Gun Privately?

Wondering if you can buy or sell a gun on Craigslist? Selling a gun is not like selling a used car or an old bicycle. Firearms sales are highly regulated by state law. Even if you are the legal owner of a gun and the buyer could legally own a firearm, you may not be able to make a direct sale without using a broker or third party. Firearm sales are regulated by state and federal laws. If you think you have been unfairly denied a firearms license, you can talk to a civil rights attorney; on the other hand, if you are caught up in possible criminal charges regarding firearms buying or selling, you may want to consult a criminal defense attorney.

Citizens in the United States have the general right to keep certain firearms in their home under the 2nd Amendment to the U.S. Constitution. The Supreme Court relatively recently reaffirmed this right in the 2008 case of District of Columbia v. Heller. However, the right to bear arms is not unconditional. There are restrictions in place on who can legally own and possess a firearm. For example, convicted felons are generally not able to own a gun. In some states, after a domestic violence arrest, alleged abusers may be required to turn over their guns. There are also numerous regulations on gun sales in the U.S., such requirements to pass a background check before purchase.

If you are a gun owner, you are probably already familiar with the process for buying a gun. A firearm can be purchased from a licensed firearms dealer, private owner, or, in some cases, at a gun show. However, the laws surrounding gun sales have changed a lot over the past few decades. Gun owners may be facing new restrictions on how they can transfer ownership of a legally owned firearm.

Gun owners who are trying to sell a gun privately are not licensed gun dealers. Licensed firearm dealers generally have to get a federal license to be a legal buyer and seller of guns. This is known as a federal firearms license (FFL). There are different types of FFLs, which are generally valid for 3 years. If your state does not allow for private sales or unrestricted sales of firearms, you may be able to obtain an FFL to make a legal gun sale.

Federal Gun Laws

If you are a private seller and not engaged in the business of dealing in firearms, you can transfer a firearm as an unlicensed person to someone in the same state, provided you have no reason to believe the buyer is prohibited from possessing a firearm. However, if you are engaged in the business of dealing in firearms, you must be licensed.

Under federal law, certain persons are prohibited from owning, receiving, possessing, or transporting a firearm. This includes any person who:

  • Has been convicted of a crime punishable by more than one year in prison
  • Is a fugitive from justice
  • Is an unlawful user of any controlled substance
  • Has been adjudicated as a mental defective or committed to a mental institution
  • Is an alien unlawfully in the United States
  • Is a nonimmigrant alien
  • Has been subject to a dishonorable discharge from the armed forces
  • Has renounced U.S. citizenship
  • Is subject to a qualifying protective order
  • Has been convicted of domestic violence

With limited exceptions, it is also against the law for people under the age of 18 to possess a handgun or restricted firearm. However, there are no federal laws restricting the buying or selling of rifles, shotguns, or other “long guns” to people of any age. There are also exceptions to many gun laws for law enforcement agencies.

State Firearm Sales Laws

Even if the gun seller and firearms purchaser are in compliance with federal laws, they are still subject to state gun laws. Gun sales laws vary by state, with some states like California and New York having more gun restrictions. Generally, an FFL licensee cannot sell a gun to potential buyers in another state. The sale of firearms, purchase of firearms, or other firearms transaction between residents of different states may be even more restricted.

For example, in California, private transactions must be transferred through a licensed dealer who is required to conduct a background check.

In states like Georgia and Arizona there are no background check requirements for a private seller who is not a licensed dealer. However, both states’ laws prohibit transferring a firearm to anyone who is prohibited from owning one under federal law. This includes any person under the age of 18 and convicted felons. For a convicted felon, the individual does not have to have been subject to actual imprisonment, as long as the maximum imprisonment term is for a year or more.

Thus, for example, if you are in Arizona, and give a firearm (or other deadly weapon) to a minor or a felon—even if you don’t get any money for it—you could be charged with the crime of “misconduct involving a weapon.”

Applying for a Firearm License to Sell Guns

Firearms licenses (FFLs) are regulated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The type of license depends on whether the license holder deals in selling, manufacturing, or importing guns or ammunition. Some licenses are for people who aren’t in any of these categories of business. For example, Type 03 FFLs are for collectors of curios and relics.

FFL applications are processed by the Federal Firearms Licensing Center (FFLC). The FFL application includes a license fee, background check, and submitting fingerprints and photographs. Additionally, an ATF investigator will conduct an in-person interview to go over the application and discuss federal, state, and local gun law requirements. After the interview, the investigator will make a recommendation to either issue or deny the license.

FFL-facilitated gun sales allow for the sale, purchase, and transfer of guns between private individuals. However, facilitated gun sales through an FFL are still regulated like other gun sales. This includes a background check through the National Instant Criminal Background Check System (NICS). If NICS makes a decision of “canceled” or “denied” regarding the application, the FFL cannot transfer the gun to the prospective purchaser.

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