Is it legal to sell a gun privately? Where to get a licensed gun?

In the United States, the private sale and purchase of guns and firearms were completely uncontrolled and were also not recorded. If you own multiple firearms and want them to sell, you could take them all to the gun show and sell them there without getting into the registration process and performing a background check.

Is it legal to sell a gun privately without performing background checks and registering as a firearms dealer? The Second Amendment in the Constitution of the United States permits American citizens to have ownership of firearms and guns. But these amendments do have certain restrictions and limitations when they are sold and purchased privately.

So what makes a gun sale private? It happens when an unlicensed dealer deals with a gun selling on his own.

Federal law for firearms pushes the licensed firearm dealers to conduct a comprehensive background check when dealing with potential buyers.

Besides for non-licensed or private sellers, it’s somewhat the opposite. Every 50 states in the United States have implemented 50 different firearms laws keeping them on top of the US federal arm regulations. So, if one sale is legal in one place, it may be illegal in the other.

Firearms Federal Regulations

Firearms Federal Regulations
source:theatlantic.com

Federal laws for firearms act as a setup floor for every state law, from which no states can go below.

Federal law states that any authorized dealer who is willing to sell his gun is obligated to conduct a background check. This obligation is mandatory whether the sale occurred at a gun show, shoulder of a road, or inside any gun store. The main element behind the law is if the seller possesses an (FFL) Federal firearm license, then a background check must be conducted.

Specifically, not all firearm dealers have their stores upfront. Most dealers run their small firearm businesses from their garages or homes. According to ATF (Bureau of Alcohol, Tobacco, Firearms, and Explosives), the number of licensed dealers in 2017 was 135,000 in 2017.

This meant that everyone, be it a neighbor, stranger, relative, or friend was involved in performing the private selling of the firearm. This is because unlicensed and unauthorized dealers were not constitutionally obligated to conduct a background check.

For instance, a gun dealer or a firearm collector who rents a spot at a gun show is permitted to do transactions through private dealings. This is legal until they engage in buying and selling firearms under the name of a business. Federal law doesn’t obligate them to do a background check.

Additionally, Federal laws restrict certain individuals to buy guns such as felons and residents of other states. This is because private transactions become illegal if the buyer belongs to any of the restricted territories and categories. Furthermore, they can also become illegal if the buyer doesn’t meet certain criteria.

On the other hand, the seller isn’t obligated to inquire about background checks and permits. As long as the seller knowingly does not make private dealings with a prohibited person, he is not breaking any federal law.

State laws for firearms

State laws for firearms
source:pbs.org

Many states regulate a mandatory background check when a gun is transferred to a buyer privately. They used an intermediary licensed dealer to perform these transactions. However, there are several other states that have no or few laws against the private sale and purchase of guns and this is where things get complicated. Because certain limitations and restrictions bound state residents for private transactions when it comes to out-of-state residents where private transactions are illegal.

According to Giffords Center Data compiled from the District of Columbia and 21 other states, they have laws against the private gun selling laws that exceed Federal laws in many areas.

Some states mandate the licensed and private parties to perform a background check on every sale. These laws are usually known as ‘universal background checks’.

Some states need background checks on handguns only and keep the federal laws for shotguns and rifles. Most states entail a permitting system for people willing to buy guns, which includes conducting a background check.

However, these systems mostly cover only handguns. Furthermore, several states use NICS – Federal National Instant Criminal Background Check System.

the private sale and purchase of guns
source:rand.org

Here’s a comprehensive list of states with private gun sale laws and background check requirements.

1. State: Alaska

Background check while dealing with a non-licensed dealer: None

Private transactions Additional Regulations:

2. State: Arizona

Background check while dealing with a non-licensed dealer: None

Private transactions Additional Regulations:

3. State: California

Background check while dealing with a non-licensed dealer:

  • Cal. Penal Code § 28050: In a case where the party or the dealer is non-licensed, the firearm should be transferred via an authorized Californian dealer that may be able to conduct a background check

Private transactions Additional Regulations:

  • Cal. Penal Code § 26500, et seq: Transfers should be done with properly unloaded, locked, and securely wrapped firearms, which are subjected to wait for a 10-day period to transfer. The seller must possess identity verification and evidence of the current age.
  • Dealers should not knowingly deal with felons, misdemeanors offenders, or someone ever convicted for violence related to firearms.
  • Must not be transferred to anyone under 21 or minor with expectations such as mentally disturbed or psychological patients.
  • Must not be transferred to someone who is not the real purchaser (aka straw purchasers) especially when the actual purchaser is prohibited by state laws.

4. State: Connecticut

Background check while dealing with a non-licensed dealer

  • Conn. Gen. Stat. § 29-33(c): Transferred firearms must wait to get licensed from DESPP (Department of Emergency services and Public Protection) which usually performs a background check.
  • Rifles and shotguns must be transferred only by a federally licensed dealer who would conduct a background check; the potential buyer must provide the eligibility certificate beforehand.

Private transactions Additional Regulations:

  • Conn. Gen. Stat. § 53a-217c: Ammunitions and firearms must not be transferred to a person convicted for any juvenile crime/offense. Should not be given to minors prohibited under laws of owning guns provided by the state.
  • Conn. Gen. Stat. § 29-33, et seq: The buyer should possess a valid license to get or sell a handgun which must be properly locked with a trigger lock or a gun locking device. It must not be loaded to even check while transferring. Purchaser(s) are needed to sign a receipt which would include the date, name, ID no., details of the gun, permit to possess a gun, and DESPP provided authorization number.

5. State: Delaware 

Background check while dealing with a non-licensed dealer

Private transactions Additional Regulations:

  • Del. Code Ann. tit. 11, § 1448, et seq: Should not knowingly transfer the ammunition to the minor (unless they are used for hunting under supervision); must not be transferred if prohibited by law.  

6. State: Florida

Background check while dealing with a non-licensed dealer

  • Fla. Const. art. VIII, § 5(b): In Florida, background checks are not necessarily required. However, governments at county levels do conduct background checks and take a 3-5 day waiting period to transfer. (Concealed carry permit holders are exempted from county requirements)

Private transactions Additional Regulations:

7. State: Georgia

Background check while dealing with a non-licensed dealer: None

Private transactions Additional Regulations:

8. State: Hawaii

Background check while dealing with a non-licensed dealer

Private transactions Additional Regulations:

  • Haw. Rev. Stat. § 134-2, 3: Licensed dealers and private sellers must only sell or deal with buyers having the permit to own a firearm. The Police Chief in the buyer’s county would be able to provide the permit to the buyer with fingerprints and registration details.

9. State: New Mexico

Background check while dealing with a non-licensed dealer: None

Private transactions Additional Regulations:

10. State: New York

Background check while dealing with a non-licensed dealer

Private transactions Additional Regulations:

  • N.Y. Gen. Bus. Law Art. 39-DD & DDD, § 898: Seller is obligated to maintain every transaction in the record.
  • N.Y. Penal Law § 400.00(9): Buyers must get a license of purchasing a shotgun which must specify every shotgun owned. The license should be edited once the transfer has been made.
  • N.Y. Penal Law § 265.10(7): Before transferring a short-barreled long gun, or handgun, State Police officers, Nassau Counties, Licensing officers, or New York Police officers should be informed in writing. 

11. State: North Dakota 

Background check while dealing with a non-licensed dealer: None

Private transactions Additional Regulations:

12. State: Oklahoma

Background check while dealing with a non-licensed dealer: None

Private transactions Additional Regulations:

13. State: Texas

Background check while dealing with a non-licensed dealer: None

Private transactions Additional Regulations:

  • Tex. Penal Code § 46.06(a): Should not knowingly transfer firearms to someone intended to perform unlawful acts, a child under 18, or any intoxicated.

14. State: Washington

Background check while dealing with a non-licensed dealer

  • Wash. Rev. Code Ann. § 9.41.010, et seq: All dealings must be done through firearms registered dealers who would perform background checks.
  • The sale should be made after 10 days hold when the buyer passes through the check. Out-of-state transactions made by Washington residents for firearms must follow background check methods. 

Private transactions Additional Regulations:

How do you get a permit to keep a firearm?

How do you get a permit to keep a firearm
source:news.wosu.org

In order to keep the firearm legally, you need to apply at your state police department to legally register yourself and receive a permit.  You can also apply online utilizing the FARS Firearm Application Registration System by visiting their official website.

You may need to first obtain ORI from your state Police Department prior to applying for a registration process.

Once a permit is issued, it must be filled completely when a new firearm is purchased or sold. It is a legal obligation of the seller to keep the records of every sale and purchase of handguns, shotguns, rifles, or any other firearm.

Your state may require you to prove that you do not intend to use the firearm for an illegal purpose or if you are mentally eligible to keep the firearms as the crime rates in the United States have been drastically increased in the past years involving personal firearms.

Crime rate against gun violence in the United States

state by state rankings of gun death
source:americanprogress.org

Due to the diversified state and federal laws concerning gun ownership in the United States, violence using ammunition and firearms has rapidly increased in the past few years.

In 2019, there were 39,707 fatalities from firearms across the country. In which 60% of deaths were suicidal. Firearms are the means for 50 % of suicides in the nation.

In the same year, 14,861 people died from firearm killings, which accounted for 37% of the deaths done in 2019. In 2018, firearms were used in 75% of homicide cases.

Overall the number of killings using firearms has decreased since 2006. On the other hand, suicides and suicidal attempts have drastically increased throughout these years.

Gun violence has reached the roots of life in the United States. Pew Research Center says that 44% of people in America affirm that somehow they know people who have been shot. Another 23% confirm that they or their family have been threatened or intimidated using a gun.

Conclusion

Despite many states having firearm laws that restrict people from purchasing and selling without licensed dealers, unauthorized transactions often take place which results in an increase in crimes.

Many online social media and eCommerce websites have also banned firearms, private sales, and businesses. Recently Facebook, eBay, Craigslist prohibited firearms sales through their platforms and websites.

From the above discussion, you may have got an idea about what makes a gun sale private and what laws say about making private transactions.

If you still wonder if it is legal to sell a gun privately, then you must contact an experienced attorney of your state. An attorney will inform you about the firearms laws for selling and purchasing firearms that you should know beforehand.

Recent Posts

Share on facebook
Share on twitter
Share on pinterest

Leave a Comment