|Armed and Gregarious|
Unfortunately Mr. Wareham is wrong, and if he really has a FFL he should know that.
May a licensee sell a firearm to a nonlicensee who is a resident of another State?
Generally, a firearm may not lawfully be sold by a licensee to a nonlicensee who resides in a State other than the State in which the seller’s licensed premises is located. However, the sale may be made if the firearm is shipped to a licensee whose business is in the purchaser’s State of residence and the purchaser takes delivery of the firearm from the licensee in his or her State of residence. In addition, a licensee may sell a rifle or shotgun to a person who is not a resident of the State where the licensee’s business premises is located in an over–the–counter transaction, provided the transaction complies with State law in the State where the licensee is located and in the State where the purchaser resides.
[18 U.S.C. 922(b)(3); 27 CFR 478.99(a)]
. . .It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver— . . .
. . . any firearm to any person who the licensee 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 licensee’s place of business is located, except that this paragraph (A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee’s place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States (and any licensed manufacturer, importer or dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States), and (B) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes; . . .
Every FFL is made aware of this when going through the inspection process to get their license, and during any follow up inspections.
However, that federal statute only applies to firearms, as defined in the US Code.
Is there anything that makes it illegal for a CO resident to own a Ruger AR-556? Because the information regarding Kelley's firearms disability was not in NICS, if the Ruger AR-556 is legal for a CO resident to purchase and possess, under CO law, then I don't see how the a Texas FFL would be in violation of 18USC922(b)(3). However, maybe I'm missing something with regard to the transaction, or CO state law, with regard to the Ruger AR-556.
"He was never hindered by any dogma, except the Constitution." - Ty Ross speaking of his grandfather General Barry Goldwater
"War is the remedy that our enemies have chosen, and I say let us give them all they want." - William Tecumseh Sherman
Quite honestly, having never purchased a long gun in person while out of state, I had forgotten about this provision in the law and hadn't considered it in my analysis of this story, so thanks for pointing it out!
There are some pertinent questions remaining regarding the facts not in evidence, at least not in the article I linked to.
I am particularly interested to know how the killer's state of residence was determined. Did the killer lie on the 4473? Did the killer recently move to Texas but failed to change his legal state of residence? Did the Academy Sports clerk who sold the gun check the killer's valid ID?
Regarding your question, NO, there is nothing in CO law that would prohibit any resident legally permitted to own any gun from buying/selling/owning/possessing a Ruger AR-556, or any such similar gun.
Five years ago, a CO law was passed that prohibited the manufacturing/sale/ or transfer of possession (temporary or permanent) of magazines > 15 rnd capacity for semi-auto center-fire guns. (a couple cities have passed local laws limiting mag capacity to 10 rnds.) Magazines > 15 rnds owned prior to enactment of the law were "grandfathered".
As with many gun laws, this law is so poorly conceived and so poorly worded that it fails to address practical considerations or even practical enforcement. One example, since the law grandfathers > 15 rnd mags owned at the time the law went into effect, what if an out-of-state resident visits CO or perhaps comes to participate in training or a competition and has mags that were owned prior to law enactment. Or, what if an out-of-state resident owned banned mags prior to law enactment and wants to move to CO.
In my very-not-a-legal-expert opinion the plaintiffs in this case have adopted the strategy of tossing several arguments out and seeing if any stick. IF the killer's domestic abuse and Bad Conduct discharge had been submitted and entered into the background check system then that would have prevented him from buying a gun. However, as you rightly point out, Academy can hardly be faulted for this failure.
So, I think they are trying to hang their hat on the argument that the clerk couldn't legally sell the standard capacity mag to the killer.
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