Selling a Gun to a Family Member: Is It Legal? - FindLaw Blotter

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Selling a Gun to a Family Member: Is It Legal?

Until fairly recently, there were few laws regulating the private sale of guns. Known as the "gun show loophole," secondary sales and gun sales between private parties, such as at gun shows, were not subject to federal and state laws requiring background checks and record-keeping.

But both states and the federal government are cracking down on private gun sales, and in some cases requiring any gun sale to through licensed dealers. Does that apply if you're just trying to sell a gun to a family member?

The States

Depending on where you live and who is doing the selling and buying state laws regulating private gun sales can vary. States are just about split when it comes to the issue of whether background checks are required when the seller is not a licensed firearm dealer. Twenty states, including California, Colorado, New York, and Oregon, have restrictions on private gun sales, in some cases requiring the seller to arrange for a background check through the National Instant Criminal Background Check System (NICS).

In New Jersey, buyers of rifles and shotguns must have a valid Firearms Purchaser Identification Card (FPIC), which requires state and federal background checks. Washington mandates that all private firearms transfers be done through a federally licensed firearms dealer, who will perform a background check. Most states have exceptions for transfers between family members, but these exceptions usually only cover rifles and shotguns and may not apply if one family member is purchasing a gun from another.

The Feds

President Obama's executive action on gun control may also apply to private sales within the family. Specifically, if you're in the business of selling firearms, you must get a license and conduct background checks. So if you've sold guns before, you may need to obtain a license and perform a background check to sell a gun to a family member.

There is no minimum number of firearms purchased or sold that triggers the federal licensing requirement. But even a few transactions can be enough to establish that a person is "engaged in the business." And just because you don't own a gun shop doesn't mean the law won't apply to you -- you can be engaged in the business of dealing in firearms no matter where firearm transactions are conducted.

If you've got more questions about the legality of gun sales, whether to family members or others, an experienced criminal attorney licensed in your state should be able to help.

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