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Before ringing up the sale, cashiers call in a check to the FBI or to other designated agencies to ensure that each customer does not have a criminal record or isn't otherwise ineligible to make a purchase.
A. Federal Requirements
Unless an alternative is recognized, if an individual wants to purchase a firearm
from a licensed dealer, the dealer must contact the FBI’s NICS Operations Center by
telephone. 18 U.S.C. 922(t)(1)(A) The dealer will provide pertinent information about
the purchaser to the NICS Center, which will conduct a check of the available data to
verify or deny the individual’s eligibility to receive or possess firearms.
The NICS databases will include:
1. Illegal/Unlawful Alien Files
2. Controlled Substance Abuse Files
3. Dishonorable Discharge Files
4. Citizenship Renunciant Files
5. Mental Commitment Files
6. Wanted Persons Files
7. Domestic Violence Protection Order Files
8. Criminal History Files
28 CFR 25.1
Prior to the sale taking place, the firearm’s dealer will have the purchaser complete
and sign BATF Form 4473, Firearms Transactions Record. 27 CFR 478.124(a) The
dealer will then verify the identity of the purchaser by examining a government issued
photo identification card (for example, a driver’s license). 27 CFR 478.124(c)(3)(I) The
dealer will then contact NICS. The NICS Center will respond to the dealer with either a
“proceed,” “denied” or “delayed” response. If a “denied” response is received, the dealer
will provide the person with literature on their appellate rights. If a “delayed” response
is received and there is no additional response from the system, the sale can take place
after three (3) business days have elapsed. 27 CFR 478.102(a)(1) Federal Firearms
Licensees’ (FFLs) must keep a copy of each BATF 4473 for which a NICS check has
been initiated, regardless of whether the transfer of the firearm was completed.
Transfers of firearms to law enforcement officials for their official use are exempt from the provisions of the Brady Law, when the transaction complies with the conditions set forth in the federal regulations at 27 CFR 478.134. In general, the purchaser must provide a certification on agency letterhead, signed by a person in authority within the agency (other than the officer purchasing the firearm), stating that the officer will use the firearm in official duties, and that a records check reveals that the purchasing officer has no convictions for misdemeanor crimes of domestic violence. If these conditions are met, the purchasing officer is not required to complete a Form 4473 or undergo a NICS check. However, the licensee must record the transaction in
his or her permanent records, and retain a copy of the certification letter.
U.S. federal law requires persons engaged in interstate firearm commerce, or those who are "engaged in the business" of dealing firearms, to hold a Federal Firearms License and perform background checks through the National Instant Criminal Background Check System...
however, individuals "not engaged in the business" of dealing firearms, or who only make "occasional" sales within their state of residence, are under no requirement to conduct background checks on purchasers or maintain records of sale (although even private sellers are forbidden under federal law from selling firearms to persons they have reason to believe are felons or otherwise prohibited from purchasing firearms).
The term "Gun Show Loophole" has been contentious with gun rights advocates, however. They claim there is no "loophole," only a long-standing tradition of free commerce between private parties that heretofore has not been restricted in the context of secondary, intrastate firearm sales. Furthermore, they argue that the term "Gun Show Loophole" is misleading, as private firearm sellers are not required to perform background checks regardless of location—whether they are at a gun show, a flea market, their home, or anywhere else. They also challenge federal jurisdiction in intrastate transactions between private parties, which they argue exceeds the federal power created by the Commerce Clause.
Presently, 17 states regulate private firearm sales at gun shows. Seven states require background checks on all gun sales at gun shows (California, Rhode Island, Connecticut, Oregon, New York, Illinois and Colorado). Four states (Hawaii, Maryland, New Jersey, and Pennsylvania) require background checks on all handgun, but not long gun, purchasers at gun shows. Five states require individuals to obtain a permit to purchase handguns that involves a background check (Massachusetts, Michigan, North Carolina, Iowa, Nebraska). Certain counties in Florida require background checks on all private sales of handguns at gun shows. The remaining 33 states do not restrict private, intrastate sales of firearms at gun shows in any manner.
S. 843: Gun Show Background Check Act of 2009
This bill never became law.
The following classes of people are ineligible to possess, receive, ship, or transport firearms or ammunition:
* Those convicted of crimes punishable by imprisonment for over one year, except state misdemeanors punishable by two years or less.
* Fugitives from justice.
* Unlawful users of certain depressant, narcotic, or stimulant drugs.
* Those adjudicated as mental defectives or incompetents or those committed to any mental institution.
* Illegal aliens.
* Citizens who have renounced their citizenship.
* Those persons dishonorably discharged from the Armed Forces.
* Persons less than 18 years of age for the purchase of a shotgun or rifle.
* Persons less than 21 years of age for the purchase of a firearm that is other than a shotgun or rifle.
* Persons subject to a court order that restrains such persons from harassing, stalking, or threatening an intimate partner.
* Persons convicted in any court of a misdemeanor crime of domestic violence.
The Brady Law recognizes certain alternatives to the NICS checks. Since North
Carolina handgun purchase permits qualify as an alternative to a NICS check, a firearms
dealer may conclude a sale of a handgun or long gun without a NICS check, if the
purchaser delivers a valid North Carolina-issued pistol purchase permit to the dealer.
It is the opinion of the United States Department of Justice that a valid North
Carolina Concealed Handgun Permit may be used as an alternative to a NICS check for the purchase of firearms. Again, multiple long guns may be purchased if they are purchased in a single transaction.
B. North Carolina Requirements
North Carolina's pistol permitting and concealed carry permit laws qualify as an alternative to the requirements of the Brady Law. Therefore, when a person desires to purchase a handgun from a federally-licensed dealer, the person needs to comply solely with North Carolina's pistol permit laws, and present a valid permit to purchase a
handgun or valid North Carolina-issued concealed carry permit. (Please note: Even if a NICS inquiry by a federally-licensed dealer was done in this circumstance, it does not do away with the necessity for a pistol purchase permit.) As always, any other transfer between private individuals is also governed by North Carolina's pistol permit laws.
Under North Carolina law, it is unlawful for any person, firm, or corporation to sell, give away, transfer, purchase, or receive, at any place in the state, any pistol, unless the purchaser or receiver has first obtained a license or permit to receive such a pistol by the sheriff of the county where the purchaser or receiver resides, or the purchaser or receiver possesses a valid North Carolina-issued concealed carry permit. This requirement to
obtain a permit prior to the transfer of a pistol applies not only to a commercial transaction, typically at a sporting goods store, but also between private individuals or companies throughout North Carolina. N.C. Gen. Stat. § 14-402(a)
In addition, this State law has been interpreted to require that a pistol permit be obtained by the receiver of a handgun when such person inherits a pistol as a result of the death of another person. The permit should be given to and retained by the seller or donor of the handgun. In such a case, the permit should be given to the executor or receiver of the estate of the deceased person. If the purchaser or receiver uses a North Carolina- issued concealed carry permit for the transfer, the seller should reference such permit on a bill of sale.
Further, it is unlawful for any person to receive from any postmaster, postal clerk, employee in the parcel post department, rural mail carrier, express agent or employee, or railroad agent or employee, within the State of North Carolina, any pistol without having in his or her possession, such a pistol purchase permit or North Carolina
concealed carry permit.
The requirement of obtaining a permit prior to the receipt of a handgun does not apply to the purchase and receipt of "long guns," such as shotguns and rifles. The fee for pistol permits is set by statute and is $5.00 per permit.
A county sheriff is only authorized under N.C.G.S. § 14-402 to issue a permit to receive or purchase a handgun or crossbow when an application is submitted by a person who is a resident of his or her particular county. The
sole exception is that the sheriff may issue a permit to a non-resident when the purpose of the permit is for collecting. Prior to issuing a permit, the sheriff must fully satisfy himself/herself by affidavits, oral evidence, or otherwise, that the applicant is of good moral character and that the person, firm, or corporation wants to possess the weapon for one of the following purposes:
a. The protection of the applicant’s home, business, person, family, or
b. Target shooting; or
c. Collection; or
Additionally, the sheriff must verify by a criminal history background investigation that it is not a violation of state or federal law for the applicant to purchase, transfer, receive or possess a handgun. The sheriff shall determine
the criminal history of any applicant by accessing computerized criminal history records as maintained by the State and Federal Bureaus of Investigation, by conducting a national criminal history records check, and by
conducting a criminal history check through the Administrative Office of the Courts. N.C. Gen. Stat. § 14-404
North Carolina law further specifies that a permit may not be issued to the following:
a. An applicant who is under an indictment, or information for, or has been convicted in any state, or in any court of the United States, of a felony (other than an offense pertaining to anti-trust violations, unfair trade practices, or restraints of trade). However, a person who has been convicted of a felony and is later pardoned may obtain a
permit, if the purchase or receipt of the pistol or crossbow does not violate the conditions of the pardon;
b. The applicant is a fugitive from justice;
c. The applicant is an unlawful user of or addicted to marijuana, any
depressant, stimulant, or narcotic drug;
d. The applicant has been adjudicated incompetent or has been committed to any mental institution;
e. The applicant is an alien illegally or unlawfully in the United States;
f. The applicant has been discharged from the U.S. armed forces under dishonorable conditions;
g. The applicant, having been a citizen of the United States, has renounced their citizenship;
h. The applicant is subject to a court order that:
(1) was issued after a hearing of which the applicant received actual notice, and at which the applicant had an opportunity to participate;
(2) restrains the person from harassing, stalking or threatening an intimate partner of the person or child of the intimate partner of the person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(3) includes a finding that the person represents a credible threat to the physical safety of the intimate partner or child; or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury.
N.C. Gen. Stat. § 14-404
As previously mentioned, federal law prohibits aliens who are illegally in the United States from receiving or possessing firearms. Additionally, subject to certain exceptions, aliens who are in a non-immigrant status are prohibited from possessing or receiving firearms. 18 U.S.C. § 922(d)(5) Therefore, sheriffs must make additional inquiries of applicants for pistol purchase permits to determine their alien status. The sheriff must first determine if the applicant is a citizen. If the applicant is not a citizen, the sheriff must obtain additional information on the person to include their country of citizenship; place of birth; and alien or admission number. If applicable ,the sheriff may have to determine the basis of any claimed exemption from the non-immigrant alien prohibition.
For example, a non-immigrant alien could possess or receive a firearm if he/she is in possession of a valid hunting license issued in the United States; is an official representative of a foreign government accredited to the United States; or has received a waiver by the United States Attorney General. 18 U.S.C. § 922(y)
A court in any domestic violence protective order can prohibit a party from purchasing a firearm for a time fixed in the order. Any person purchasing or attempting to purchase any firearm in violation of such an order is guilty of a Class H Felony. N.C. Gen. Stat. § 50B-3.1
Gun rights advocates are up in arms that a Texas gun dealer was sentenced to six months in prison for selling a firearm to an illegal immigrant, but a "middle-man" who bought the gun for the immigrant -- and who was in the U.S. illegally himself, but had a valid driver's license -- was never arrested, charged or deported in the case.
Either way it isnt a special "loophole." It's simply illegal transfer of a firearm.
Originally posted by Libertygal
There is nothing illegal in private firearms sales *UNLESS* you knowingly sell to a criminal. The Federal laws you quoted really have nothing to do with private sales unless the person is knowingly illegally traficking in firearms. It is comparing apples to oranges.
Originally posted by thisguyrighthere
reply to post by Libertygal
That's crazy. If the seller saw an ID you'd think that was sufficient to keep charges off the seller.
Yes, you never really know who is ineligible and who is not. And the transfer is a crime. But it isnt a "loophole." It's just a crime. It isnt a loophole if I list a gun for sale on Armslist or in the paper and sell it to a felon. It's just a crime. It's isnt a loophole if I set up a van downtown and sell guns out of it to mental patients. It's just a crime.
It isnt referred to as the "van on the corner loophole" or the "Classified ads loophole." So why the "gun show loophole?" To coin a catch phrase a cause can latch onto. A semantic game.
8th state to feds: Step away from our guns
Alaska governor signs Firearms Freedom Act into law
Alaska has become the eighth state to declare that firearms made, sold and owned in the state are beyond the reach of the federal bureaucrats along the Potomac, with Gov. Sean Parnell's signature on the plan today.
"The Alaska Firearms Freedom Act frees Alaskans from overly bureaucratic and restrictive federal firearm regulation, and allows our state to assume the responsibility for regulation," said Rep. Mike Kelly, the lead sponsor on the plan endorsed by lawmakers in the recently closed session of the Alaska Legislature.
Montana's original plan is called "An Act exempting from federal regulation under the Commerce Clause of the Constitution of the United States a firearm, a firearm accessory, or ammunition manufactured and retained in Montana."
When South Dakota's law was signed by Gov. Mike Rounds, a commentator said it addresses the "rights of states which have been carelessly trampled by the federal government for decades."
Those federal laws that have nothing to do with private sale are what say the thing you said and the thing Ive said about three times now that you cannot knowingly sell to a felon in a private sale.
ETA: Is it a "gun show loop hole?" No it is not. The guy could just as easily do the same thing sitting in his easy chair with his pajamas on.