WARNING: Notice of Legal Stipulations for Handgun Sales

[DragonLW]

@Scott White...

Second question in the NYSP's FAQ section;
"... the term "Manufacturer" includes any person, firm or corporation outside this state engaged in the business of supplying pistols or revolvers to licensed dealers in firearms in this state."

You go on GunBroker. You buy a handgun from Joe Acme, licensed FFL in Snickers Ditch, Idaho. It is New, In the Box, with a fired cartridge.

It gets shipped to you, care of your receiving FFL. The shipping FFL is NOT *in the business of supplying pistols or revolvers to licensed dealers*...he is simply an FFL who sold a NY Resident a NIB firearm, and is shipping to said NY owner in accordance with Federal Law, which is through a receiving FFL. That fired cartridge is now not legally required to go into COBIS, because the handgun was not shipped in by someone engaged in business as a SUPPLIER of firearms. He is a DEALER, who sold to you over the Internet, and is now shipping to ANOTHER DEALER the gun you bought outside of NY State. (Interstate Commerce Clause has jurisdiction here, and the sale was assumed consummated in the state in which the sale was offered. Sale was consummated in Idaho. Idaho is NOT required to submit to NY COBIS system a fired cartridge.)

NY never address that loophole. Go and ask your own local FFL. They will tell you the same.

ANd yes, the NY State Police will tell you different, because they *want* your cartridge entered into the COBS database, regardless of what the actual law states.

Also, I'l point out that you took the answer to the second question out of context, because you didn't include the first question, and the second question with it to place it IN proper context.

From the site you linked to...

Q - What are the responsibilities of a licensed dealer in firearms upon receipt of pistols and revolver into inventory?

A dealer in firearms that receives a new pistol or revolver from a manufacturer on or after March 1, 2001, shall upon receipt, ensure that the firearm is accompanied by a properly completed and sealed approved container enclosing a ballistic sample.

Key here is *RECEIVED INTO INVENTORY*. As the example I gave above, if you, I, or any NY resident bought a gun from a licensed FFL in another state through the internet, the recieving FFL here in NY is *NOT* receiving the firearm into his inventory with the express purpose of resale. He is simply the conduit for the shiping of a firearm to its legal owner, ie: the NY buyer.

Now, Question #2:

Q - Does this mean that guns received from out-of-state wholesalers aren't affected by this law because they're not received directly from a manufacturer?

No, for purposes of this section, the term "Manufacturer" includes any person, firm or corporation outside this state engaged in the business of supplying pistols or revolvers to licensed dealers in firearms in this state.

The question SPECIFICALLY SAYS WHOLESALERS. A licensed FFL is NOT a wholesaler. The question was asking if a *wholesaler* (otherwise known as a middleman in the supply chain) is exempt from the *Manufacturer* requirement. And the answer is correct, that a wholesaler is the same as a manufacturer, as it is his express business purpose to *supply* firearms to licensed dealers in the state.

A FFL in another state is NOT a wholesaler...he is a dealer. He is NOT in the business of supplying other FFLs with a supply chain to stock their NY State inventory of firearms. He is just a dealer who sold you a product, and is shipping said product in accordance with Federal Law.

Keep in mind, too, that the Penal Codes 400 and 265 were written BEFORE the internet became a viable way to do business. Hell, even the last time it was amended was in the pre-AOL and Prodigy days, when there was no such thing as a folks selling products online. Until the NY Legislature amends the law to say that the only way that a handgun can be brought into the state for sale is if it is new, and comes directly from a manufacturer or wholesaler, and that new gun sales from out of state are prohibited, then this loophole around the COBIS system (which has cost NY over 44 MILLION dollars and has solved absolutely ZERO crimes...bupkus..) will be in existence. It wasn't intentional, by any means.

But that kind of law would never stand judicial scrutiny, because it is a violation of the Commerce Clause of the Constitution.

[Scott E White]

Dragon;

While I agree with your assessment of the NY State Police mandate to provide these unreasonable accommodations, they (NYSP, Pistol Permit Bureau) are permitted to set their own policy. Until someone's challenge forces them into compliance with the Commerce clause, we will continue to be held to their standards and definitions.

A handgun isn't shipped to you, it's shipped to your FFL, "Attn." or "Care of" you. They (non-NY dealers) are performing a wholesale transaction, as they do not possess the appropriate NYS FFL required to sell handguns here in New York.

As per Federal Regulation, Title 27, Chapter II, Part 478 (Commerce In Firearms and Ammunition), Subpart D, Section 478.50, an FFL covers business only at the stated address and properly recognized "gun show" locations. Even yet, the dealer may not sell a handgun to you, unless you reside in his state of business. Specifically (478.29), "No person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, shall transport into or receive in the State where the person resides... any firearm purchased or otherwise obtained by such person outside that State." This means that you can't receive it or go get it. Only the FFL can receive it.

I have provided the sources, to simplify the vetting process. Nothing has been taken out of context or otherwise altered.

The out-of-state FFL shows the handgun as disposed to the dealer you provided. Your FFL must enter "your" handgun into his Firearms Aquisition Log ("inventory"), and then process the sale to you, entering the transaction in his Firearms Disposition Log. The NY FFL is performing the retail sale to you, the NYS Permit holder. You complete the 4473 with him, and he (NY FFL) retains all records of the sale. At this point, the sale is "consummated", or brought to completion or fruition; concluded.

I offer a couple simple definitions, from New York State Penal Law, Article 265, Section 265.00 (Definitions)
6. "Dispose of" means to dispose of, give, give away,...sell, transfer and otherwise dispose of.
9. "Dealer in firearms" means any person, firm, partnership, corporation or company who engages in the business of... disposing of, any ...pistol or revolver.
Some other helpful definitions, from Webster's Revised Unabridged Dictionary
sell v: Exchange or deliver for money or its equivalent.
retail n: The sale of goods or commodities in small quantities directly to consumers.
wholesale n: Sale of goods by the piece or large quantity, as distinguished from retail.

These are public-domain definitions, not something I have fabricated or altered. Sources are provided for verification.


My point is that by NY laws, your out-of-state dealer arranges (for a fee) to ship a handgun to your NY FFL. Not directly to you, the consumer. The law calls this a wholesale transaction, as the non-res. dealer can't legally sell to you here in New York. Your FFL then "disposes of" the HG to you, or "retails" it to the end-consumer.

Although we both see this as a game of semantics, the State gets to apply their definitions and interpretations. Yes, this is done according to the Laws of New York. With these definitions, the NYSP draws their Directives, or "official policy" that we are required to uphold. Do all FFL holders here in New York abide by the CoBis requirements? Of course not, we have probably both seen examples of this. But, if you do enough non-res. purchases, or just ask a couple high-volume dealers (more likely to have been checked-up on and "schooled" by ATF/NYSP), you will find that many of them do comply.

My first day here on this Forum, I'm really not such an Ass as it seems. Guess I'm just feeling argumentative today. I haven't held my FFL since 1987, so it may very well be a bit different now. CoBIS didn't even exist back then. Sorry for any ruffled feathers.

[DragonLW]

No ruffled feathers at all...we're going to disagree, and I'm of the opinion that your interpretation of the law is wrong.

Your quote of:

A handgun isn't shipped to you, it's shipped to your FFL, "Attn." or "Care of" you. They (non-NY dealers) are performing a wholesale transaction, as they do not possess the appropriate NYS FFL required to sell handguns here in New York.

In my prior post, I did say that the handgun is being shipped to the receiving FFl, for transfer to the OWNER of the gun, which is the NY Purchaser. Money has changed hands, and the new owner, by law, IS the purchaser, even though he is not yet IN POSSESSION of his property.

And a transferring FFL IS NOT performing a WHOLESALE transaction. A wholesale transaction is one where the price is from 30 to 45 percent below the retail price at point of sale. If a NY resident buys a gun from an Idaho FFL on the internet, that Idaho FFL has made the profit of selling at retail. His shipment of a firearm to the new owner via FFL transfer in accordance with Federal Law IS NOT a wholesale transaction. Period. This not only applies to firearms, but to ANY product that is sold at retail. Once the retail transaction has occurred, there is no way to say that the act of shipping or transferring a product from one dealer to another is a *wholesale* transaction. The chain of commerce in the United States is, and always has been,

1) MFR
2) Distributor
3) Wholesaler
4) Retailer / Dealer

Again, from your post:

The out-of-state FFL shows the handgun as disposed to the dealer you provided. Your FFL must enter "your" handgun into his Firearms Aquisition Log ("inventory"), and then process the sale to you, entering the transaction in his Firearms Disposition Log. The NY FFL is performing the retail sale to you, the NYS Permit holder. You complete the 4473 with him, and he (NY FFL) retains all records of the sale. At this point, the sale is "consummated", or brought to completion or fruition; concluded.

The NY FFL did not *complete a sale* to me. He made no profit on the sale of a product, therefore it is not a sale. In the box with the firearm is the sales receipt from the out-of-state FFL showing that I had paid him his retail asking price. There is nothing in NY Law that prohibits me from buying a firearm in another state. There ARE provisions that prohibit me from taking POSSESSION of my property unless said property passes through a licensed FFL in NY, at which point I fill out the 4473, which is simply the paperwork that precedes the *transfer* of a firearm from one person to another (the verification that the person receiving is actually allowed to be in possession of a firearm), but the 4473 has nothing to do with the SALE of the firearm.

And this is where NYS 400 and 265 have a gaping error (not that I'm complaining, because the NYS laws are so idiotic that it defies logic) that the legislature has neglected to correct. Or maybe they don't want to correct it. Or maybe they *can't*, because of fear of running afoul of Federal Law, and the accepted Interstate Commerce provisions guaranteed in the US Constitution. Whatever the reason it hasn't been fixed, I could care less. In a courtroom, the letter of the law is what matters.

Now, I understand that you are looking at it from being a former FFL, and your interpretation is colored with being overly cautious so as to not run afoul of anything in the convoluted NY firearms law. I'm looking at it from a legal perspective, what the exact letter of the law states.

No ruffled feathers...you think I'm wrong, I think you're wrong. We are at an impasse.

[Yellowfin]

Thanks for the information! :)