Lending of Banned Weapons?

[dblas]

There is an AG opinion letter floating around that loaning a firearm between family is not a change of possession and is permissible. Since that is the case, it not an issue for a father, to loan his son a firearm the father owned prior to Oct 1, 2013.

Has anyone seen this opinion?

Yes, anyone know where a copy of this letter can be found?

Oh Yellowsled, nothing is a "simple question" anymore .

Sorry guys, not an AG opinion on the definition of transfer and possession, it is actually a court case from 2006 (Chow v State)

http://mdcourts.gov/opinions/coa/2006/99a05.pdf

While it related to regulated handgun loan at the time, one could surmise that it would apply to a formerly regulated long gun today.

 

[fabsroman]

Sorry guys, not an AG opinion on the definition of transfer and possession, it is actually a court case from 2006 (Chow v State)

http://mdcourts.gov/opinions/coa/2006/99a05.pdf

While it related to regulated handgun loan at the time, one could surmise that it would apply to a formerly regulated long gun today.

Alright, I was going to say that the only thing I know about regarding the loaning of firearms is Chow v. State. I just spent 5 minutes trying to track down an AG opinion on this matter and came up with nothing.

The problem with Chow is that the person borrowing the firearm must be able to legally own the firearm according to the holding. Since the passage of SB281, we now need to find out if a HQL is required for somebody to loan a handgun to another person and then we need to know the status of the banned firearms. I have no idea how somebody could legally own a banned assault weapon if they did not possess it prior to October 1, 2013. SB281 muddies up Chow v. State on those two issues.

Here is the holding in that case:

We find that the temporary gratuitous exchange or loan of a regulated handgun between two adult individuals, who are otherwise permitted to own and obtain a regulated handgun, does not constitute an illegal "transfer" of a firearm in violation of Maryland.

It is the "own and obtain" portion that I worry about when it comes to loaning a handgun to somebody without a HQL or an assault weapon. Pretty much impossible after SB281 for anybody to obtain an assault weapon in MD and pretty much impossible after SB281 for anybody to obtain a handgun without a HQL.

 

[NateIU10]

Isn't the problem with Chow that it was defining "transfer". It talks a lot about possession, but as one of the elements for a transfer, right?

So let's assume that takes care of the "transfer" portion of the new law, I don't think that sheds light on the "possession" portion, right?

pretty much impossible after SB281 for anybody to obtain a handgun without a HQL.

I wouldn't say anywhere close to impossible, actually.

 

[anderson76]

Isn't the problem with Chow that it was defining "transfer". It talks a lot about possession, but as one of the elements for a transfer, right?

So let's assume that takes care of the "transfer" portion of the new law, I don't think that sheds light on the "possession" portion, right?


I wouldn't say anywhere close to impossible, actually.

Exactly. Chow dealt with transfer in the context of Regulated Firearms. We need to understand what is possession in the context of Assault Weapons.

In Chow v. State the Court of Appeals addressed the meaning of the word “transfer” as it was used in former Art. 27 § 442(d). Former Article 27 § 442(d) provided the following transfer restrictions on regulated firearms:

(d) Sale by other than regulated firearms dealer. –

(1) A person who is not a regulated firearms dealer may not sell, rent, transfer, or purchase any regulated firearm until after 7 days shall have elapsed from the time an application to purchase or transfer shall have been executed by the prospective purchaser or transferee, in triplicate, and the origin al copy is forwarded by a regulated firearms dealer to the Secretary.”

Former Art. 27 § 442(d) was repealed and re-enacted, without substantive change, as § 5-124(a)(1) of the Public Safety Article, Title 5. Firearms, Subtitle 1. Regulated Firearms. Section 5-124(a)(1) was not amended by SB281. It currently reads as follows:

(a) Seven-day waiting period. --

(1) A person who is not a licensee may not sell, rent, transfer, or purchase a regulated firearm until after 7 days following the time a firearm application is executed by the firearm applicant, in triplicate, and the original is forwarded by a licensee to the Secretary.


The pertinent facts in Chow v State are as follows: Chow was contemplating selling a regulated firearm to his friend. He loaned the firearm to his buddy to test fire the weapon. On these facts Chow was convicted for the unlawful “transfer” of a regulated firearm. Chow appealed arguing that loaning a regulated firearms did not amount to a “transfer”. The Court of Appeals agreed with Chow and overturned his conviction.

The Chow Court essential acknowledged the temporary loan of a regulated firearm was a “transfer” within the modern commonly accepted definition of the term. To narrow the definition of the term “transfer” the court interpreted the term within the entire statutory context Former Art. 27 §§ 441 est seq., now re-codified as §§ 5-101 est seq. of the Public Safety Article. After doing so, the court concluded that:

“Transfer,” as defined a t the time of the enactment of § 442(d) and read in harmony with the rest of the Regulated Firearms subheading, has the meaning of a permanent gratuitous transfer, rather than a temporary transfer. And we will not “‘construe the statute with forced or subtle interpretations that limit or extend its application.’” . . . “Transfer” can be ascribed the meaning of “a permanent exchange of title or possession” and not be rendered surplusage, superfluous, meaningless, or nugatory. Each term in the litany laid out in § 44 2(d) has its own meaning. The term “sell” contemplates a permanent exchange for consideration from a seller or transferor of a regulated firearm to a buyer. Conversely, the term “purchase” contemplates a permanent exchange for consideration to a buyer or transferee of a regulated firearm from a seller. “Rent,” as discussed above and defined in § 4 41(t), contemplates a temporary transfer for consideration. None of these words, “sell,” purchase,” or “rent” can be defined to include the permanent gratuitous transfer of a firearm. That type of permanent exchange is covered by the word “transfer” and that is its purpose in the statute, i.e., a permanent gratuitous transfer. Read in context with the rest of the Regulated Firearms subheading, the term “transfer,” as used in § 442(d), is distinguishable from the words “sell,” “rent” and “purchase” in that it means any other permanent exchange of title or possession of a firearm even if it is without consideration. This covers situations of permanent exchange that the other terms fail to ad dress, i.e., in the case of a gift or bequeathment. Therefore, “transfer,” as used in § 442(d), is not surplusage, superfluous, meaningless, or nugatory.


Thus Chow v. State stands for the following proposition:

Within the meaning of Former Art. 27, § 442(b), (now re-codified as Public Safety Article, Title 5. Firearms, Subtitle 1. Regulated Firearms, § 5-124(a)(1)), the word “transfer” can only refer to a permanent exchange of title or possession and does not include gratuitous temporary exchanges or loans. Stated differently, it is permissible to loan a regulated firearm to another person so long as that other person is not otherwise disqualified from possessing a regulated firearm.


Title 5. Firearms, Subtitle 1. Regulated Firearms, § 5-124(a)(1)) does not impose prohibitions on possession of regulated firearms for the average joe (by average joe I mean over 21 and no criminal records).

Post SB281 it’s a new world order. SB281 basically took all regulated long guns and turned them into Assault Weapons – and imposed restrictions on their possession. We need to start thinking in terms of possession.

 

[fabsroman]

Isn't the problem with Chow that it was defining "transfer". It talks a lot about possession, but as one of the elements for a transfer, right?

So let's assume that takes care of the "transfer" portion of the new law, I don't think that sheds light on the "possession" portion, right?


I wouldn't say anywhere close to impossible, actually.

Alright, enlighten me. How does one obtain a handgun post October 1, 2013 without having an HQL? I understand that there are certain exceptions for military and police, but what about for the average Joe?

 

[NateIU10]

Alright, enlighten me. How does one obtain a handgun post October 1, 2013 without having an HQL? I understand that there are certain exceptions for military and police, but what about for the average Joe?

If a handgun is a C&R, no HQL needed. It is an exemption, still have 7 day wait and 77r.

If the item being transferred is just a lower/frame, it is an "Other" transferred on a 4473 with no 77r to MD residents 21+ years old (is not a handgun under state law).

Building a handgun yourself, as long as you are not a prohibited person and 21+.

I think I'm missing one or two, but I'm tired.

 

[MedInfantry]

Hmm ... Is it illegal for them to possess/operate? ie - ex-felon? If not, I'd say yes. Long gun or handgun?

 

[fabsroman]

If a handgun is a C&R, no HQL needed. It is an exemption, still have 7 day wait and 77r.

If the item being transferred is just a lower/frame, it is an "Other" transferred on a 4473 with no 77r to MD residents 21+ years old (is not a handgun under state law).

Building a handgun yourself, as long as you are not a prohibited person and 21+.

I think I'm missing one or two, but I'm tired.

Alright, C&R I knew about but did not care about. Not really interested in buying a C&R.

Also knew about building my own firearm because a mill/CNC setup has been approved by the other half.

Now, are you saying that if I order a frame for a 1911 or 2011 I do not need the HQL? I already have a frame for the 2011 that I bought pre October 1, 2013, but if no HQL is needed I'll buy a couple more this spring. Is the frame for a handgun cash & carry without having to do a Form 77r? I'll have to look at the 4473 that I have for the 2011 frame I already bought.

 

[NateIU10]

Alright, C&R I knew about but did not care about. Not really interested in buying a C&R.

Also knew about building my own firearm because a mill/CNC setup has been approved by the other half.

Now, are you saying that if I order a frame for a 1911 or 2011 I do not need the HQL? I already have a frame for the 2011 that I bought pre October 1, 2013, but if no HQL is needed I'll buy a couple more this spring. Is the frame for a handgun cash & carry without having to do a Form 77r? I'll have to look at the 4473 that I have for the 2011 frame I already bought.

So, that is a loaded question. What the law and COMAR provide for are a little different than the MSP interpretation (nothing new there). There was an MSP bulletin put out a few years ago stating that a frame that could be built into a long gun was not a handgun (so, Glock and 1911 frames/lowers should be cash and carry if not sold with an upper). I have no idea how they even want to regulate any frame alone, though. Under state law, a handgun is a firearm with a barrel less than 16" in the PS Article. So, no barrel, no handgun. This is how AR10 lowers and the like are 4473 cash and carry to anyone 21+ years old. They may be built into a handgun, but are simply a receiver now.

Now, finding an FFL that wants to ask the MSP, that's a little different story.

To sum up though:
A 1911 frame is not a handgun under MD law. Only handguns require a 77r now. It should be treated like an AR10 lower, cash and carry "Other" on a 4473 to 21+ year olds. It is not a frame of any banned firearm.

 

[jonnyl]

...
It is the "own and obtain" portion that I worry about when it comes to loaning a handgun to somebody without a HQL or an assault weapon. Pretty much impossible after SB281 for anybody to obtain an assault weapon in MD and pretty much impossible after SB281 for anybody to obtain a handgun without a HQL.

Asking only about the handgun part. When they say someone that can "own and obtain" don't they segregate that persons "legal status" (for lack of a better phrase) from the administrative paperwork they would have to do to "actually obtain" a handgun?

Previous to SB281 I was a person that could "own and obtain" a handgun based on my age, clean record, etc... But in order to actually obtain and have to do some administrative paperwork etc.. with the state. Now if I want a handgun my personal status hasn't changed, there is just more paperwork hoops to jump through.

Logically (I'm cringing writing that in relation to this state) wouldn't the HQL be no different that the other paperwork and background checks?

 

[fabsroman]

So, that is a loaded question. What the law and COMAR provide for are a little different than the MSP interpretation (nothing new there). There was an MSP bulletin put out a few years ago stating that a frame that could be built into a long gun was not a handgun (so, Glock and 1911 frames/lowers should be cash and carry if not sold with an upper). I have no idea how they even want to regulate any frame alone, though. Under state law, a handgun is a firearm with a barrel less than 16" in the PS Article. So, no barrel, no handgun. This is how AR10 lowers and the like are 4473 cash and carry to anyone 21+ years old. They may be built into a handgun, but are simply a receiver now.

Now, finding an FFL that wants to ask the MSP, that's a little different story.

To sum up though:
A 1911 frame is not a handgun under MD law. Only handguns require a 77r now. It should be treated like an AR10 lower, cash and carry "Other" on a 4473 to 21+ year olds. It is not a frame of any banned firearm.

I thought the AR-10 lower was and is cash and carry because it is simply the receiver to a long gun that is not regulated (i.e., it is not on the named list of firearms). Since it never appeared on the regulated list, it was treated like a Remington 700 or any other firearm not on that list.

 

[NateIU10]

I thought the AR-10 lower was and is cash and carry because it is simply the receiver to a long gun that is not regulated (i.e., it is not on the named list of firearms). Since it never appeared on the regulated list, it was treated like a Remington 700 or any other firearm not on that list.

It is cash and carry, but not a rifle on the 4473. It isn't a rifle under federal or state law. It is an "Other", and may only be sold to someone 21+ years old (does not fall under the exception in the GCA for purchase of shotguns or rifles for those over 18 but under 21 from a dealer.)

Being a receiver to a firearm is what matters here. It's just a receiver.

 

[NateIU10]

Here are the instructions off a 4473:

Question 18. Type of firearm(s): Check all boxes that apply. "Other" refers to frames, receivers, and other firearms that are not either handguns or long guns (rifles or shotguns), such as firearms having a pistol grip that expels a shotgun shell, or National Firearms Act (NFA) firearms.

If a frame or receiver can only be made into a long gun (rifle or shotgun), it is still a frame or receiver not a handgun or long gun. However, they are still "firearms" by definition, and subject to the same GCA limitations as any other firearms. See Section 921(a)(3)(b). 18 U.S.C. Section 922(b)(1) makes it unlawful for a licensee to sell any firearms other than a shotgun or rifle to any person under the age of 21. Since a frame or receiver for a firearm, to include one that can only be made into a long gun, is a "firearm other than a shotgun or rifle," it cannot be transferred to anyone under the age of 21. Also, note that the multiple sales forms are not required for frames or receivers of any firearms, or pistol grip shotgun, since they are not "pistols or revolvers" under Section 923(g)(3)(a).

 

[Ab_Normal]

If it is an HBAR there is nothing to be worried about.

 

[fabsroman]

Asking only about the handgun part. When they say someone that can "own and obtain" don't they segregate that persons "legal status" (for lack of a better phrase) from the administrative paperwork they would have to do to "actually obtain" a handgun?

Previous to SB281 I was a person that could "own and obtain" a handgun based on my age, clean record, etc... But in order to actually obtain and have to do some administrative paperwork etc.. with the state. Now if I want a handgun my personal status hasn't changed, there is just more paperwork hoops to jump through.

Logically (I'm cringing writing that in relation to this state) wouldn't the HQL be no different that the other paperwork and background checks?

That is actually a good argument. Don't know if it would stick, but who really knows. The difference is that to obtain the handgun prior to SB281 all you had to do was paperwork. Now, to obtain the HQL you actually have to take training, which includes live fire. So, not really just paperwork anymore.

Is a person prohibited from obtaining a handgun without an HQL?

Again, clear as mud on this one.

 

[Pinecone]

How is the father a "dual resident."

 

[Doctor_M]

I'm curious about that too... thought you could only have legal residency in one state at a time.

 

[yellowsled]

Owns a home in both states.

Pre Oct01, he was able to tranfer/buy a firearm in MD (with FL DL) with proper documentation that he has a reisdence here. He used tax record bills.

 

[Ab_Normal]

I'm curious about that too... thought you could only have legal residency in one state at a time.

Tell them that when they send you your tax bill.

 

[Kman]

The answer is NO. A person may only possess a banned weapon IF the person possessed it prior to October 1, 2013. Did you possess the banned weapon before October 1, 2013? NO Hence, you cannot possess it after October 1, 2013.

Shooting it at the range with your father present might fly. Your dad loaning it to you and you taking it home without him being present will cause a lot of problems if you get caught.

As far as dual residency is concerned, don't think there is such a beast for anybody other than military. Thing is, I think the residency is a non-issue because even if he was a Maryland resident you still could not accomplish what you want to.

This one makes the most sense to me.

But to err on the side of caution....move.