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Buying Or Selling A Firearm In a Private Transaction

Buying or selling a firearm in a private transaction is legal nationwide, for the most part. Yes, you can even use cryptocurrency such as Etherum if you want to.

Chances are, you’ve probably purchased your firearms from a licensed gun dealer. You went to his or her shop, selected your firearm, checked it’s functionality, underwent the federally-mandated background check, paid for your gun, and took it home, after any municipal or state-mandated waiting period, if applicable. That being said, despite misconceptions to the contrary, you can also purchase a firearm from a private party if you so desire…

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Yes, in all 50 states, it is perfectly legal for one individual to sell a firearm to another in a person-to-person transaction. Typically, people do this to save a few dollars versus purchasing the gun at a dealer, or sometimes a person is seeking a unique or vintage gun that just cannot be found in stores. Whatever the motives, the transaction is perfectly legal. But, there’s a lot of caveats to the private transfer process. In the world of firearms, the sale of a gun is a “transfer”, by the way.

The buyer and seller must not be prohibited persons

Here in the US, the Second Amendment guarantees and acknowledges our right to keep and bear arms. Contrary to popular belief, the Second Amendment isn’t a “law” where the government grants us the right, it is a statement that says the government acknowledges our pre-existing right. However, as us gun owners know and complain about daily, the government has placed checks and infringements on that right throughout history, including laws such as the Gun Control Act of 1968, where the term ‘prohibited person’ is defined.

In a nutshell, a prohibited person is someone who has been convicted of a crime where the prison term exceeds one year, is indicted for said crime, is a fugitive, is an unlawful user of any controlled substance, has been judged by a court to be mentally incompetent, is an illegal alien, was dishonorably discharged from the armed forces, has a restraining order placed against them from a spouse or partner, or has a domestic violence conviction.

Typically persons with those “disabilities” (legalese term for someone who has those black marks on their record) is entered into one or more national, state, and local law enforcement databases. The FBI’s NICS system ties most of the bigger ones together for the background check.

However, your average citizen cannot access the FBI’s NICS portal, or their state’s equivalent. As an aside, some states, including my home state of Florida, run their own gateway to the national crime databases, which actually helps take the load off of the Feds. Regardless, your average citizen cannot access these systems.

So, in a private transaction, the best a citizen can do is be reasonably sure that the person they are selling a gun to, or buying a gun from, is not a prohibited person. Typically this is why most private transfers are amongst friends and family. In my experience, very few private transfers occur between complete strangers. However, sometimes it’s not that simple.

The Universal Background Check

This one comes up a lot in gun control chatter - the universal background check. Several states, such as California, New York, New Jersey, Colorado, Oregon, and Washington State (see for the full list…) have enacted universal background check laws as part of their incremental push for total gun control.

Ostensibly, the idea behind these checks is to give citizens access to the background check system by requiring private sales to be done at licensed gun shops, where the dealer can perform the background check prior to the transfer being completed. Of course, there’s a few catches.

  • The dealer will charge money for the background check, sometimes in excess of $50. This could very well negate any savings the buyer was hoping to get.

  • Universal background checks only ‘work’ if there’s firearms registration, i.e. the dates and persons involved in all the transfers of said item are logged by the government. Firearms registration is incompatible with the ideals of the Second Amendment, as a registry makes it easier for the government to confiscate privately-owned guns. UBCs are a step in the overall gun control agenda, and serve no public utility.

  • Criminals trade, steal and buy guns regardless of legality. UBC laws don’t stop them.

However, in those states, private transactions have to be done on the premises of a licensed gun dealer, and if private transactors want to remain within the bounds of the law, they have to do it. Now, as I noted above, the UBC law really doesn’t account for much without registration (yes, you could in theory check if a gun was manufactured after the UBC cut-off date…), but nonetheless, people in these states have an extra layer of compliance to worry about.

Private sales can only happen legally between residents of the same state

This is a federal requirement. Private transfers, whether the state has a UBC requirement or not, can only take place between residents of that state. For example, as a resident of Florida, I can privately sell a firearm to my cousin who lives in Orlando, but I cannot privately sell a firearm to my friend who lives in Texarkana, Texas. If my friend in Texarkana really wanted my gun, I’d have to box it up, ship it from my local gun store to a local gun store of his choosing in Texas. Essentially it’d be really inconvenient and he’d be better off finding the gun in-state or through a licensed dealer. A good reference for qualifying legal private sales can be found on the ATF’s website.

Is this the ‘gun show loophole’?

There’s no loophole. A loophole is defined as an oversight in laws which people take advantage of. Laws concerning the private sale of firearms transfers are crafted, for the most part, to explicitly allow for said private sales to happen. Some people are under the impression that gun shows are free-for-all arms bazaars. While that would be nice in a way, the reality is that the dealers at gun shows who are selling firearms have to comply with the same federal background check laws as if they were selling from their own storefront. Step into a modern gun show, and each and every dealer will have laptops and iPads out, conducting background checks and credit card transactions in the course of their business.

Yes, there’s sometimes people wandering around a gun show looking to sell a gun in a private transaction. Yes, this is perfectly legal. However, most gun shows don’t allow the transactions to happen on the show floor, and 99 percent of these transactions are just some guy looking to move an old rifle or pistol that even a gun dealer won’t accept in trade. In other words, not worth crying over.

If you are going to do a private transfer

Unless you are in a UBC state, whereby then you are required to do the transfer at a licensed gun dealer, there are some sensible precautions one can take to ensure a transfer falls within the bounds of state and federal law.

  • Do it outdoors, during the day, in a public place. Most people choose somewhere obvious like a Wal-Mart parking lot. In some jurisdictions, the local police explicitly allow and recommend that private firearms sales happen in their parking lots. Someone up to no good isn’t likely to want to be in a public place with surveillance cameras, witnesses, and potentially, law enforcement officers.

  • Generate a bill of sale. Google around for one, and fill out the relevant details. Make, model, caliber, and the full names and addresses of the parties involved. Again, someone legitimately wanting that gun you are selling on Armslist won’t hesitate to play ball.

  • Document identification, on both sides. You have a smartphone, take a photo of the ID of the person you are buying the gun from, and vice versa. That way you both have records of whom is involved in the transaction.

While these procedures aren’t automated like NICS, conducting these willingly is a great indicator that the parties involved aren’t prohibited persons.

Don’t give up your firearms in a ‘buy-back’ scheme

Buyback schemes are an anathema to gun owners. The term alone is pretty incongruous, as it implies the State ‘owned’ your firearms at some point. No matter how old or useless the gun is, there’s always a dealer or a private party willing to pick it up. You just have to look around, and you’ll get more than you would from some taxpayer-funded money-wasting scheme.

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Standard disclaimer

While I strive to be as accurate with legal matters as possible, I’m not an attorney in any jurisdiction on this planet. Please consult the authoritative resources I’ve listed, or check with a qualified resource such as a lawyer, before proceeding with any private transfers of firearms.