Question about order and oct1

[miles71]

What if an order is placed with a manufacturer today, pistol paid for but doesn't arrive at ffl until October 2. Said pistol has 15 rd mags. Since it was ordered before oct 1 is it ok or does it have to be at the ffl and 7 day paperwork have to be started.
TD

 

[fabsroman]

There are so many issues here it is not even funny.

1) 15 round mag cannot be transferred to you after September 30, 2013. If the gun gets to the dealer before October 1, 2013, have the dealer give you the mag(s) before October 1, 2013 while you wait for the transfer of the firearm. If the handgun comes in after September 30, 2013, you are SOL on that 15 round mag.

2) If the handgun is not transferred to you before October 1, 2013, you are going to need to present a handgun qualification license to the dealer to receive the handgun after September 30, 2013.

 

[miles71]

Spoke to an ffl today who had a different story. Said if its paid for before oct 1 I'm ok and the old law applies. Also told me his store wasn't releasing until the MSP paperwork came back even though the latest law suit said they could. It seems federal level fines can be applied.

Wonder if md said go ahead since they knew the fed level would kick in.

TD

 

[chillman]

The mags may be a grey area but as long as it is purchased pre 10/1 the new laws do not apply.

 

[iH8DemLibz]

If the FFL won't give you the magazines, ask the FFL if they can ship the magazines out of state for you. Then go get it.

On a totally different subject. I just happened to ask my local Post Office if a Maryland resident can get a Post Office Box in, say, Pennsylvania and have things shipped/mailed to them. I was told we can. Not that it relates to this topic in any way. Just sharing a boring story.

 

[fabsroman]

The mags may be a grey area but as long as it is purchased pre 10/1 the new laws do not apply.

The new law, which takes effect on October 1, 2013, prohibits the transfer of any mag with a capacity of 11 rounds or more. So, how will the FFL transfer the gun and mag to a person after September 30, 2013 even when the gun is "purchased" prior to October 1, 2013?

 

[mward]

Spoke to an ffl today who had a different story. Said if its paid for before oct 1 I'm ok and the old law applies. Also told me his store wasn't releasing until the MSP paperwork came back even though the latest law suit said they could. It seems federal level fines can be applied.

Wonder if md said go ahead since they knew the fed level would kick in.

TD

ATF has publicly stated its legal.

 

[ibanez320dx]

ATF has publicly stated its legal.

I sure hope so. Been waiting on an order since Jan.

 

[Boom Boom]

The new law, which takes effect on October 1, 2013, prohibits the transfer of any mag with a capacity of 11 rounds or more. So, how will the FFL transfer the gun and mag to a person after September 30, 2013 even when the gun is "purchased" prior to October 1, 2013?

It's not a transfer if the buyer in question already paid in full prior to Oct 1st and therefore owns it.

 

[fabsroman]

It's not a transfer if the buyer in question already paid in full prior to Oct 1st and therefore owns it.

When is the sale completed? Upon payment, or upon receipt? If it is completed upon payment, is it then alright for the dealer to NEVER deliver the gun? Or is the sale completed upon payment and delivery. Exactly when does the buyer own the firearm, upon payment? If so, how can the dealer not deliver the firearm at that time. When does legal title to the handgun pass to the buyer?

Is the money paid for the firearm before its receipt merely a deposit, or is it actually payment for the firearm?

Anybody have any caselaw that shows when the sale of a regulated firearm takes place?

 

[chillman]

The new law, which takes effect on October 1, 2013, prohibits the transfer of any mag with a capacity of 11 rounds or more. So, how will the FFL transfer the gun and mag to a person after September 30, 2013 even when the gun is "purchased" prior to October 1, 2013?

The law also prohibits AR's, they can be transferred as long as purchased before 10/1. Like I said, the mags will be a grey area. If you can get the mags while waiting on paperwork that would be the best.

 

[Boom Boom]

When is the sale completed? Upon payment, or upon receipt? If it is completed upon payment, is it then alright for the dealer to NEVER deliver the gun? Or is the sale completed upon payment and delivery. Exactly when does the buyer own the firearm, upon payment? If so, how can the dealer not deliver the firearm at that time. When does legal title to the handgun pass to the buyer?

Is the money paid for the firearm before its receipt merely a deposit, or is it actually payment for the firearm?

Anybody have any caselaw that shows when the sale of a regulated firearm takes place?

Assuming we're talking about a direct transaction (not a state-to-state transfer), then when you pay for it in full, it's yours. The law simply says you cannot leave the FFL's shop with it until the FBI and MSP give a thumbs up (or rather not a thumbs down). The FFL holding onto it past you paying in full until paperwork comes back is a just a necessary formality in order to abide by law (MD and federal NICS). No point in overthinking it. At the end of the day, payment in full is a firmly-binding legal contract. For people who suspect they might be denied/disqualified, paying in full upfront is a foolish move, just as foolish as trying to buy the handgun in the first place.

 

[fabsroman]

The law also prohibits AR's, they can be transferred as long as purchased before 10/1. Like I said, the mags will be a grey area. If you can get the mags while waiting on paperwork that would be the best.

The law has a specific carve out for assault weapons that have a purchase order or Form 77r in place prior to October 1, 2013. The handgun section regarding a HQL does not have this specific carve out. I just went through this in another thread.

Right now, I am trying to do the research to determine when the sale of a regulated firearm takes place, when it is paid for or when it is paid for and delivered.

 

[fabsroman]

Assuming we're talking about a direct transaction (not a state-to-state transfer), then when you pay for it in full, it's yours. The law simply says you cannot leave the FFL's shop with it until the FBI and MSP give a thumbs up (or rather not a thumbs down). The FFL holding onto it past you paying in full until paperwork comes back is a just a necessary formality in order to abide by law (MD and federal NICS). No point in overthinking it. At the end of the day, payment in full is a firmly-binding legal contract. For people who suspect they might be denied/disqualified, paying in full upfront is a foolish move, just as foolish as trying to buy the handgun in the first place.

So, the contract of sale and legal title to the firearm transfer upon full payment, and not upon delivery. So, once paid for, that handgun becomes a used handgun.

No reason really to over think any of this. I mean, what are the penalties involved? Is it 3 years in prison and the loss of 2nd Amendment rights for taking the easy way out on this one without over thinking it.

Any authority for the position that the sale takes place when payment is made, the contract for sale is completed prior to actual delivery of the firearm, and legal title to the firearm passes to the purchaser upon payment even though the firearm is not delivered.

Edit to add: Now we know that no sale can take place until 7 days after the Form 77r is submitted:

(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.

So, even if payment is made upon the completion of the Form 77r, the sale cannot be made until after 7 days following the submission of the Form 77r to the Secretary.

Question is, is the sale automatically completed on the 8th day, or does something more need to take place like the delivery of the handgun to the applicant?

 

[chillman]

Here is an email to and from MSP. Doesn't clear up the mag question. New standards won't apply to purchase pre 10/1



Hello,
I'm sure you are very busy so thank you in advance for taking the time to answer my questions. I recently purchased a handgun and am aware of the lengthy backlog you have for background checks. The question I have is what happens after oct. 1 regarding my recent purchase? I have purchased the handgun but will it be able to be transferred to me after oct.1 or will I have to go through the new procedures(fingerprints, etc.) if the new standards will apply what do I have to do and when can I do it. If I have to I would like to get a early start.


Good evening, you will not be effected because of the new laws. If you have any other questions call me@410-653-4334 Rose Brock on Monday 17th.

--
Maryland State Police
Support Services Bureau
Licensing Division
Firearms Registration Section
1111 Reisterstown Road
Baltimore, MD 21208
410-653-4500

 

[fabsroman]

Md Code Public Safety section 5-123

(a) Seven-day waiting period. -- A licensee may not sell, rent, or transfer 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 the prospective seller or transferor to the Secretary.

(b) Completion required in 90 days. -- A licensee shall complete the sale, rental, or transfer of a regulated firearm within 90 days after the firearm application was stamped by the Secretary as not being disapproved.

(c) Incomplete transactions. --

(1) If the sale, rental, or transfer of a regulated firearm is not completed within 90 days after the firearm application was stamped by the Secretary as not being disapproved, a licensee shall return the firearm application to the Secretary within 7 days.

(2) The Secretary shall void a firearm application returned under paragraph (1) of this subsection as an incomplete sale, rental, or transfer.

(d) Notification of completed transaction. --

(1) (i) A licensee who sells, rents, or transfers a regulated firearm in compliance with this subtitle shall forward a copy of the written notification of the completed transaction to the Secretary within 7 days after delivery of the regulated firearm.

(ii) The notification shall contain an identifying description of the regulated firearm, including its caliber, make, model, any manufacturer's serial number, and any other special or peculiar characteristic or marking by which the regulated firearm may be identified.

(2) The Secretary shall maintain a permanent record of all notifications received of completed sales, rentals, and transfers of regulated firearms in the State.

If a licensee has 90 days from the date of the ND on the application to complete the sale, it does not appear as though possession is insignificant to a completed sale. Doesn't appear as though mere payment is enough to complete the sale.

I am hoping that the completion of Form 77r is not required to complete the transfer/sale.

Get your wallets out because all of this is about as clear as mud.

All I know is that a contract for the sale of goods is complete when the buyer pays AND the seller delivers the goods. How this applies to the world of firearms in Maryland is going to be fun to figure out as long as I am not the test case.

 

[fabsroman]

Here is an email to and from MSP. Doesn't clear up the mag question. New standards won't apply to purchase pre 10/1



Hello,
I'm sure you are very busy so thank you in advance for taking the time to answer my questions. I recently purchased a handgun and am aware of the lengthy backlog you have for background checks. The question I have is what happens after oct. 1 regarding my recent purchase? I have purchased the handgun but will it be able to be transferred to me after oct.1 or will I have to go through the new procedures(fingerprints, etc.) if the new standards will apply what do I have to do and when can I do it. If I have to I would like to get a early start.


Good evening, you will not be effected because of the new laws. If you have any other questions call me@410-653-4334 Rose Brock on Monday 17th.

--
Maryland State Police
Support Services Bureau
Licensing Division
Firearms Registration Section
1111 Reisterstown Road
Baltimore, MD 21208
410-653-4500

How does that work when the new Md Code Pub Safety section 5-117.1 is going to read as follows:


A DEALER OR ANY OTHER PERSON MAY NOT SELL, RENT, OR TRANSFER A HANDGUN TO A PURCHASER, LESSEE, OR TRANSFEREE UNLESS THE PURCHASER, LESSEE, OR TRANSFEREE PRESENTS TO THE DEALER OR OTHER PERSON A VALID REGULATED FIREARM HANDGUN QUALIFICATION LICENSE ISSUED TO THE PURCHASER, LESSEE, OR TRANSFEREE BY THE SECRETARY UNDER THIS SECTION

Are they giving out "get out of jail free" cards to the dealers that complete handgun sales after September 30, 2013 to people without a HQL. Is it just that the Form 77r will not require the HQL, but the dealer will need to see the HQL?

 

[Brooklyn]

So, the contract of sale and legal title to the firearm transfer upon full payment, and not upon delivery. So, once paid for, that handgun becomes a used handgun.

No reason really to over think any of this. I mean, what are the penalties involved? Is it 3 years in prison and the loss of 2nd Amendment rights for taking the easy way out on this one without over thinking it.

Any authority for the position that the sale takes place when payment is made, the contract for sale is completed prior to actual delivery of the firearm, and legal title to the firearm passes to the purchaser upon payment even though the firearm is not delivered.

Edit to add: Now we know that no sale can take place until 7 days after the Form 77r is submitted:

(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.

So, even if payment is made upon the completion of the Form 77r, the sale cannot be made until after 7 days following the submission of the Form 77r to the Secretary.

Question is, is the sale automatically completed on the 8th day, or does something more need to take place like the delivery of the handgun to the applicant?

Its a big issue. But if we are looking for a way to make this work, instead of a way to prove it can't. Why not claim that a sale is a transfer of ownership, but not necessarily possession.

Look for cases were possession does not require ownership. Look for cases where ownership does not require possession ( think financial contracts.)


Now I agree the court may tell us to get bent, but we should be ready, I think, to fight in court ( not just disobey the law but get standing and challenge the law )

An FFl does not get to decide if the firearm can be transferred --- the state does. Because of this many FFl consider the sale the transfer of ownership interest not possession. This is final at the time the sale is closes upon payment.

Now you say this makes the firearm used.. Well, no it makes it pre-owned.

What makes it used is the test firing at the manufacturer and /or production of the Maryland shell casing.


Only a court can decide if this has any merit. But all of my ffls do as I have suggested -- the sale is closed upon payment.

Freestate will even allow you to fire the weapon at their range without a rental fee. Thus they are acknowledging the ownership interest and even going so far as to grant temporary possession. Perhaps they are really renting you your own gun without a fee....


You may be right and the court may tell us to get bent, But until they do I think we should stand ready to make the case, no matter what.

What real harm is there in making the case, esp if the HQL process is not even ready at the time?

 

[fabsroman]

Its a big issue. But if we are looking for a way to make this work, instead of a way to prove it can't. Why not claim that a sale is a transfer of ownership, but not necessarily possession.

Look for cases were possession does not require ownership. Look for cases where ownership does not require possession ( think financial contracts.)


Now I agree the court may tell us to get bent, but we should be ready, I think, to fight in court ( not just disobey the law but get standing and challenge the law )

An FFl does not get to decide if the firearm can be transferred --- the state does. Because of this many FFl consider the sale the transfer of ownership interest not possession. This is final at the time the sale is closes upon payment.

Now you say this makes the firearm used.. Well, no it makes it pre-owned.

What makes it used is the test firing at the manufacturer and /or production of the Maryland shell casing.


Only a court can decide if this has any merit. But all of my ffls do as I have suggested -- the sale is closed upon payment.

Freestate will even allow you to fire the weapon at their range without a rental fee. Thus they are acknowledging the ownership interest and even going so far as to grant temporary possession. Perhaps they are really renting you your own gun without a fee....


You may be right and the court may tell us to get bent, But until they do I think we should stand ready to make the case, no matter what.

What real harm is there in making the case, esp if the HQL process is not even ready at the time?

Well, the real harm is that you have to find somebody that is willing to have a criminal record AND pay thousands of dollars to deal with it. I know I will not be advising clients to take possession of or sell a handgun after October 1 unless there is a HQL license involved.

You would need to find an FFL that is willing to push the envelope and essentially risk his livelihood over this matter. Likewise, you would have to find a person that is willing to risk having something on his criminal record and losing his 2nd Amendment Right.

Edit to add: Unless a declaratory judgment action will work to get this resolved.

 

[Brooklyn]

Well, the real harm is that you have to find somebody that is willing to have a criminal record AND pay thousands of dollars to deal with it. I know I will not be advising clients to take possession of or sell a handgun after October 1 unless there is a HQL license involved.

You would need to find an FFL that is willing to push the envelope and essentially risk his livelihood over this matter. Likewise, you would have to find a person that is willing to risk having something on his criminal record and losing his 2nd Amendment Right.

Edit to add: Unless a declaratory judgment action will work to get this resolved.

No one, certainly not me, is suggesting that one would just do something and then litigate.

Presumably the FFL would refuse the transfer on the grounds that it is not legal, and we ask the court to order the FFL to complete the transfer on the grounds that it is.

Now I am not lawyer but how is anybody risking prison here? If this was done by arangement to generate a test case, there would not even be hurt feelings ....