LA Times gets it wrong on Federal Law and D.C. FFLs

Marktwain | 5 July 2008 | marktwain

[marktwain]

I read an article in the LA Times today about the difficulty of Washington, D.C. residents obtaining firearms (Guns still elusive for D.C. residents). There were at least two major errors in the story, which is not unusual for an LA Times article that has anything to do with guns.

First, the article claims that there is a Federal law that prevents the transportation of guns across state lines “the federal ban on the transport of firearms across state lines”. There is no such ban. In fact, federal law *guarantees* that people can transport firearms across state lines, in the “Firearms Owners Protection Act of 1986, see below:

“ Section 107 of FOPA adds to the nonpreemption provisions of the Gun Control Act, 18 U.S.C. § 927, a proviso that any person not barred from transporting arms by the act may transport an unloaded, inaccessible firearm in interstate commerce, notwithstanding state law or regulation. It has been estimated that laws of at least 21 states may be affected. 131 CONG. REC. S9117-18 (daily ed. July 9, 1985) (statement of Sen. Metzenbaum). The Attorney General of Massachusetts has already ruled that the Massachusetts firearms law (which, with its mandatory one-year sentence for unlicensed carrying, is one of the nation's strictest) is inapplicable to travellers who comply with FOPA's pass-through provisions. Letter from Francis X. Belloti, Attorney General, to Charles V. Barry, Secretary, Executive Office of Public Safety (Oct. 31, 1986) (copy in possession of CUMBERLAND LAW REVIEW).”

The federal ban is on people *buying* guns in other states, without going through a dealer in their own State, not in transporting them. If the Federal ban prevents residents of the District of Columbia from exercising their constitutional right to keep and bear arms, because of a lack of gun shops in the District of Columbia, then the Federal ban on buying guns across state lines should be struck down as a violation of the Second Amendment and an impediment to interstate commerce.

This leads us to the second error in the article. The article claims that there are no Federal Firearms License holders in the District of Columbia. A simple search on the web produces the following:

License Number: 1-54-XXX-XX-XX-00725 Expiration Date: 03/01/2011 License Name: SUGARMANN, JOSHUA ALAN Premise Address: 1730 RHODE ISLAND AVE NW #1014 WASHINGTON DC – 20036

It is ironic that apparently, the only FFL in the District of Columbia is owned by Joshua Sugarmann, of the Violence Policy Center, a group that has worked to make it more difficult for people to obtain guns. I do not know how many guns have been transferred through Josh Sugarmann’s FFL, but I suspect that it is very, very few. For decades, the BATF has administratively ruled that one has to be “engaged in the business” of buying and selling firearms in order to obtain an FFL. I sincerely wish that they would use the same criteria necessary for Joshua Sugarmann’s buying and selling of firearms as for any other prospective licensee. I suspect that ordinary people who ask Mr. Sugarmann to transfer their firearms to them in the District of Columbia will have a very difficult time indeed.

Notice that the license was just recently renewed, as the FFLs have a term of three years.

I have grown accustomed to error in any article that includes guns in the LA Times. It is no surprise to me that they are cutting their news staff and losing money.

[marktwain]

While we cannot post articles from the LA Times, I believe that we can still discuss them.

[goldstategop]

You could provide a link and an excerpt. You cannot post articles in full.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[marktwain]

Here is the link to the LA Times article:

http://www.latimes.com/news/nationworld/nation/la-na-dcgunban5-2008jul05,0,7778286.story

[goldstategop]

I don't expect the DC government to rush to comply with the Supreme Court's ruling. It will take more litigation before DC's have their 2nd Amendment rights secured.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[patton]

I expect that DC will stall every way that they can.

[marktwain]

“I don't expect the DC government to rush to comply with the Supreme Court's ruling. It will take more litigation before DC’s have their 2nd Amendment rights secured.”

---

I expect that they will drag their feet and obstruct the ruling of the court as much as they can, which will almost certainly be in illegal ways. While this works against D.C. residents in the short run, it works for us in the long run.

Federal Courts are powerful institutions that do not like to be taken lightly. I believe that D.C. officials will overplay their hand and get slapped down hard.

[MileHi]

Why can't this:

TITLE 18 > PART I > CHAPTER 13 > § 241. Conspiracy against rights

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

...be invoked against DC officials who are working to defy the Court?

[goldstategop]

That would be the Civil Rights Act Of 1871. It was intended to apply against Southern Democrats who conspired to deny blacks voting rights but it can just as easily be applied against DC Democrats who conspire to deny the District's residents their Second Amendment rights.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[PapaBear3625]

While many DC residents might have difficulty in buying a gun in DC, somebody who has a residence in DC and also in another state may buy a firearm in that other state. There is also no law preventing somebody who already owns guns from moving into DC

Also, that federal law about interstate buying of handguns does not apply to shotguns and rifles

[marktwain]

“...be invoked against DC officials who are working to defy the Court? “

---

Perhaps it will be.

[marktwain]

“While many DC residents might have difficulty in buying a gun in DC, somebody who has a residence in DC and also in another state may buy a firearm in that other state. There is also no law preventing somebody who already owns guns from moving into DC

Also, that federal law about interstate buying of handguns does not apply to shotguns and rifles”

---

I wish that it were so. But, as in voting, you are allowed only one legal residence at a time. A person could move from D.C. to another jurisdiction, establish residency (I believe the BATF says you have to be there for 30 days) buy firearms, then move back to D.C.

I think that would be an unwarranted burden for the residents of D.C.

Federal law allows people to buy rifles and shotguns in other states *only if it is lawful in their state of residence, and the two states have passed laws stating that it is allowed for their residents to buy in another state.

I know this seems absolutely antithetical to the clear meaning of the Second Amendment, but this type of impediment to keeping and bearing arms is what we will be dealing with in the courts for some time, presuming that an Obama presidency does not find a way to stack the court against us.

[4buttons]

“License Number: 1-54-XXX-XX-XX-00725 Expiration Date: 03/01/2011 License Name: SUGARMANN, JOSHUA ALAN Premise Address: 1730 RHODE ISLAND AVE NW #1014 WASHINGTON DC – 20036”

hoax.

[umgud]

Fed law does prohibit out of state purchases/transfers. You can’t go from one state to another and purchase a handgun with out it being delivered to an FFL in your state. D.C. is however, exempt from this as it is specifically exluded and is not a state.

Title18, U.S. Code, Sections 921-929)
Sec. 922. Unlawful acts
(a) It shall be unlawful:
(5) for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides

[marktwain]

“D.C. is however, exempt from this as it is specifically exluded and is not a state.”

---

Please show me where you derive this from. The law you posted seems to say that the person to be transferred to has to be a legal resident of the state that you are in.

At least, that is how it was always explained to me when I had an FFL. Could the BATF be wrong in their interpretation? Certainly. But it will take a court ruling to make them change.

[driftdiver]

Because our elected officials are above the law. Unless of course there is a political reason for taking them down.

They get away with keeping 90k in bribe money in their freezer, unlawfully influencing govt contracts to their husbands company, the list is almost endless.

[umgud]

Please show me where you derive this from.

I'll have to go see if I can find this. It's not where you'd expect it. I should have saved it last time I looked it up.

[MileHi]

That would be the Civil Rights Act Of 1871. It was intended to apply against Southern Democrats who conspired to deny blacks voting rights but it can just as easily be applied against DC Democrats who conspire to deny the District's residents their Second Amendment rights.

Delicious, since the first gun laws were passed by democrats to keep uppity blacks disarmed....

[MileHi]

Wish I could disagree. Who would have the jurisdiction. FBI? They could find the facts and refer to the proper US atty?

[CurlyDave]

I don't expect the DC government to rush to comply with the Supreme Court's ruling. It will take more litigation before DC's have their 2nd Amendment rights secured.

Oh, they are rushing right now to comply. The SC has ordered them to issue a license to Mr. Heller, and I expect they will do that as soon as the order becomes enforcable, which I think is in about 3 weeks.

The problem is that they are going to comply in what they feel is the minimum way possible. With more hoops and hurdles than any sane man would undertake.

I agree, more litigation will be necessary to get them to really recognize the 2A as a right.

We have two things on our side now. First is "standing". It took a lot of searching to find someone who had standing to challenge the old ban. and a lot of lower courts wouldn't even touch it, hiding behind the standing issue. Now, any citizen who lives in DC has standing to challenge anything.

The second thing we have on our side is that lower courts will be very reluctant to stay their orders during an appeal. Even the district court order was stayed pending an appeal to the Supremes. I don't think this is going to happen any more. The lower courts have procedures for how to handle enumerated rights. Even though we don't know the exact level of scrutiny they will apply, we know it will be fairly strict. Jerking people around is not going to be allowed.

I am hoping that someone now applies for a concealed cary license in DC and we get that issue resolved before the court changes composition. I suspect they are sooner or later going to have to allow people to bear arms as well as just keep them.

[umgud]

I may have misread this, but thought I saw another citation elsewhere. I’ll keep looking.

Sec. 922. Unlawful acts

(a) It shall be unlawful:

(1) or any person:

(C) nothing in this paragraph shall be construed as applying in any manner in the District of Columbia, the Commonwealth of Puerto Rico, or any possession of the United States differently than it would apply if the District of Columbia, the Commonwealth of Puerto Rico, or the possession were in fact a State of the United States;

[CurlyDave]

Also, that federal law about interstate buying of handguns does not apply to shotguns and rifles

Since we have already determined that DC is not a state, how can it be interstate for anyone who is a resident of DC to purchase a handgun in any other state?

This seems an area ripe for litigation in the very near future. It doesn't even require an incorporation ruling for the Federal law to be challenged, and I bet any state law prohibiting sales to non-residents would be struck down if it prevented DC residents from exercising their rights.

[marktwain]

“(C) nothing in this paragraph shall be construed as applying in any manner in the District of Columbia, the Commonwealth of Puerto Rico, or any possession of the United States differently than it would apply if the District of Columbia, the Commonwealth of Puerto Rico, or the possession were in fact a State of the United States;”

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Beautiful. Perhaps we should consider test cases in the U.S. Virgin Islands, Guam, or Kwajalein. Hmmm. I would say that any remote place that does not have an FFL would be a likely case to invalidate the federal ban on sales through the mail.

[marktwain]

“License Number: 1-54-XXX-XX-XX-00725 Expiration Date: 03/01/2011 License Name: SUGARMANN, JOSHUA ALAN Premise Address: 1730 RHODE ISLAND AVE NW #1014 WASHINGTON DC – 20036”

hoax.

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Oh, blast. It seemed so real... If it is too good to be true....etc.

[umgud]

Seems to me, this is a fed issue. Heller, which didn’t bring incorporation, wouldn’t apply to states but certainly would to the feds. I’d think this should be an easy change.

[marktwain]

“hoax.”

---

These sources look pretty good. Please explain why you think this is a hoax.

http://armsandthelaw.com/archives/2008/02/the_quintessenc.php

[PapaBear3625]

I wish that it were so. But, as in voting, you are allowed only one legal residence at a time. A person could move from D.C. to another jurisdiction, establish residency (I believe the BATF says you have to be there for 30 days) buy firearms, then move back to D.C.

From ATF FAQ:

(B12) May a person (who is not an alien) who resides in one State and owns property in another State purchase a handgun in either State?

If a person maintains a home in 2 States and resides in both States for certain periods of the year, he or she may, during the period of time the person actually resides in a particular State, purchase a handgun in that State. However, simply owning property in another State does not qualify the person to purchase a handgun in that State. [27 CFR 478.11]

And looking up the referenced 27 CFR 478.11, which provides the legal definition of "state of residence":

State of residence. The State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State. If an individual is on active duty as a member of the Armed Forces, the individual's State of residence is the State in which his or her permanent duty station is located. An alien who is legally in the United States shall be considered to be a resident of a State only if the alien is residing in the State and has resided in the State for a period of at least 90 days prior to the date of sale or delivery of a firearm. The following are examples that illustrate this definition:

Example 1. A maintains a home in State X. A travels to State Y on a hunting, fishing, business, or other type of trip. A does not become a resident of State Y by reason of such trip.

Example 2. A is a U.S. citizen and maintains a home in State X and a home in State Y. A resides in State X except for weekends or the summer months of the year and in State Y for the weekends or the summer months of the year. During the time that A actually resides in State X, A is a resident of State X, and during the time that A actually resides in State Y, A is a resident of State Y.

Therefore, someone who (for example) maintains an apartment in DC where he resides during the work week, and a home in Virginia where he resides during the weekends, may purchase a handgun in Virginia over the weekend, and transport said handgun to his apartment in DC on Monday morning

[marktwain]

Thank you for your work on this issue. Very enlightening.

[2harddrive]

Actally, neither the IRS nor the ATF has to compy with ANY court “rulings”. They just roll along, claiming Sovereign Immunity.

[publiusF27]

Dave Hardy is usually a pretty careful researcher, so I would expect it is true if it appears on his site, but a screen shot like that one is very easy to fake, and I do wonder why it isn’t accompanied by a link so viewers can go run the ATF FFL check themselves and see the result?

[marktwain]

“Dave Hardy is usually a pretty careful researcher, so I would expect it is true if it appears on his site, but a screen shot like that one is very easy to fake, and I do wonder why it isn’t accompanied by a link so viewers can go run the ATF FFL check themselves and see the result?”

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I tried the link, but it is ah https: link, not an http: link. I believe that the https: sites are government sites that you have to have special permissions to link to. They are not open to the public. There is so much expertise on FreeRepublic, perhaps someone else will explain it better.

[Heretiker]

In a fit of paranoia, not only did I register to post on this forum (lo after many years of reading it), but I also did the following:

1. I went to the BATF website, clicked on Firearms, clicked on FFL eZ Check, and entered the license number given.

2. I went to the Violence Prevention Center website (www.vpc.org, IIRC), found their Contact Us link, and looked at their mailing address.

3. I then compared the information. And they match.

So, unless the BATFE is lying to us about who has an FFL (and they do lie about other things, so I can’t totally put that past them), Joshua Alan Sugarmann of the VPC has an FFL. There is no hoax.

[publiusF27]

https just means it is a secure connection, and is not exclusive to government. It does suggest a site you’d have to log in to view.

[marktwain]

Thank you very much. I wonder where the rumor of this being a hoax started?

[Domandred]

No it’s not. You can look it up yourself on the ATF’s easy check website thingy.

[Ancesthntr]

Therefore, someone who (for example) maintains an apartment in DC where he resides during the work week, and a home in Virginia where he resides during the weekends, may purchase a handgun in Virginia over the weekend, and transport said handgun to his apartment in DC on Monday morning

Guess what? Every single member of Congress maintains a residence somewhere other than in DC (they MUST, or they cannot be elected as representatives or Senators). I'd love to see DC try to arrest some powerful member of the Congress for bringing a legally-acquired gun into DC. My own Senator, Kay Bailey Hutchison, has expressed a strong desire to own a gun in DC for personal protection. Let's see if she's got the b.... - uh, errr, um gumption to bring a gun in.

Barring Kay B doing this, I'm extremely certain that lots of other members of Congress from various parts of "flyover country" own guns already (so they don't even have to go to a gun shop and buy a new one for this purpose). I wish that some pro-gun Congressional staffer lurking here would circulate this information to other like-minded people and get a Congresscritter to test DC's law, now that the Supremes have actually recognized our pre-existing rights.