|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.
Next stop, CO Supreme Court.
[Not that it has any bearing on the article, but the actual article link has a picture of Magpul workers packaging standard capacity mags.]
Colorado Court of Appeals upholds state’s ban on large-capacity magazines
By: Marianne Goodland
Chief legislative reporter
Oct 18, 2018
The Colorado Court of Appeals, in a unanimous opinion issued Thursday, upheld the state’s ban on large-capacity ammunition magazines of 15 rounds or more.
The lawsuit dates back to the contentious 2013 legislative session in which Democrats, who controlled both the House and Senate, passed a trio of gun-control laws, including one that banned ownership of an ammunition magazine with 15 rounds or more.
The case was brought by Rocky Mountain Gun Owners. Several other groups also signed on with the plaintiffs, including the Colorado Law Enforcement Firearms Instructors Association; Sheriffs Chad Day of Yuma County, Shannon K. Byerly of Custer County, Steve Reams of Weld County and Sam Zordel of Prowers County; and the Independence Institute.
The appeals court concluded that the logic for passing a ban on large-capacity magazines was based on a “legitimate governmental interest in public health and safety.” In their opinion, the justices pointed out that there have been 27 mass shootings in Colorado that used large-capacity magazines between 1999 and 2016. That contrasts with 11 mass shootings involving large-capacity magazines in the period between 1967 and 1968, the opinion noted.
Colorado’s ability to regulate guns centers around a 1994 case, Robertson v. City of Denver. In that case, the Colorado Supreme Court decided “the state may regulate the exercise of [the right to bear arms] under its inherent police power so long as the exercise of that power is reasonable.”
The legislature’s intent in passing the 2013 law was a “legitimate governmental purposes of reducing deaths from mass shootings,” the opinion stated. And while the plaintiffs argued that the 2013 law hasn’t made a dent in overall gun violence or deaths from guns, the appeals court said that “legislation need not solve all gun problems to be constitutional. … We conclude that the statutes burden only a person’s opportunity to use [a large-capacity magazine], not a person’s right to bear arms in self-defense.”
RMGO’s appeal came after the Denver District Court ruled against the original case. The lower court found that the plaintiffs’ claim that the statutes make “almost all magazines and semiautomatic weapons illegal” turned on an unreasonable reading of the statutory definition of a large-capacity magazine.
The RMGO appeal of the District Court’s ruling centered on two arguments: that magazine ban should “be subject to a heightened standard of review” and that the statute was unconstitutional because it would ban “an overwhelming majority of magazines.”
The appeals court disagreed with both assertions, stating even if they considered the statutory law “ambiguous, the legislative purpose is to reduce the number of people who are killed or shot in mass shootings, not to ban all gun magazines,” the opinion stated. Further, the statute does not prevent Coloradans from exercising their constitutional right of self-defense, the opinion indicated.
Curiously, the plaintiffs didn’t assert that the 2013 law violated their 2nd Amendment rights under the U.S. Constitution, only their rights under the state constitution. According to attorney Christopher Jackson, there’s a big difference. Colorado’s version of the 2nd Amendment includes language not found in the U.S. Constitution. It states that a person has a right to “keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned.”
The case can’t be appealed to the U.S. Supreme Court, according to Jackson. But the plaintiffs can, and he believes will, appeal to the state Supreme Court, and seek for a standard of review different than the one created by the Robertson case.
And he’s right on that. Dudley Brown, executive director of RMGO, told Colorado Politics the group will appeal Thursday’s ruling, which he said was not unexpected. “From day one we knew this was a long haul through the courts, made more difficult by a Republican Attorney General who clearly wants to keep this magazine ban on Colorado’s books,” Brown said.
This alone is reason to take this to the REAL Supreme court.
NIKE- The Swoosh with a Douche
I thought you all might find this interesting. As you all know in 2013, the Democrat controlled Colorado legislature and governor imposed a host of gun-control laws on Colorado, with the goal of saving lives and reducing crime. With 5 years of post-law data out, we can now see what the long term effect the 2013 laws had on crime, and violence in Colorado.
In 2011, after hitting an over-50 year low in 2010, the murder rate in Colorado started to rise at about the same rate it had been declining for the past 30 years. The gun-control laws implemented in 2013 have done nothing to change or abate that rise.
All the violent crime rates in Colorado (murder, assault, forcible rape, and robbery) have been rising since or before 2013. The 2013 gun-control laws have done nothing to slow or reverse any of them. In short, the laws are ineffectual and aren't working.
Loyalty Above All Else, Except Honor
|Spread the Disease|
I’m. So. Shocked.
-- Fear is the mind-killer. Fear is the little-death that brings total obliteration. I will face my fear. I will permit it to pass over me and through me. And when it has gone past me I will turn the inner eye to see its path. Where the fear has gone there will be nothing. Only I will remain. --
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