The secondary sale of a firearm, or the sale by a private seller, refers to the transfer of firearms by individuals who are not required to be licensed as firearms dealers under federal law. Individuals are only required to be licensed as a dealer under federal law if they are engaged in selling firearms.
Individuals who do not sell firearms for a living, in general, do not need to obtain a federal license.
What Are Private Sellers of Firearms Required to Do?
Private sellers are not required to run background checks on prospective purchasers under the Brady Law because they are not federally licensed. Private sellers are also not required to comply with other Brady Law provisions, including selling a firearm from a specific business location or keeping records of firearms sales.
It is important to note, however, that a private seller cannot sell a firearm or ammunition to any individual who the seller knows or should reasonably know is under 18 years old or is otherwise not permitted to buy a firearm. Private firearm sales often occur at gun shows.
This lack of a background check requirement for private sellers is often referred to as the gun show loophole.
Am I Required to Conduct a Background Check on the Purchaser?
As previously noted, federal laws do not require private gun sellers to obtain background checks on a purchaser of a firearm. However, a private gun seller may be required by the laws of their state to perform a background check on a potential purchaser.
At least 17 states, in addition to Washington, D.C., require some type of a background check to be performed on a purchaser, even by a private gun seller. States that require private sellers to conduct universal background checks on potential purchasers include:
- New York; and
- Rhode Island.
What if I Am Only Selling a Handgun?
Certain states require a background check only for handgun purchases. States that require a private seller to conduct a background check on purchasers include:
- New Jersey; and
In the State of Florida, this requirement depends on the jurisdiction.
Am I Required to Make Sure the Purchaser has a Permit?
Whether private sellers are required to ensure that purchasers of firearms have permits will depend on the state in which they reside. In certain states, for example, Iowa and New Jersey, private sellers can only transfer firearms to purchasers with a state permit or license.
What are Some Restrictions on Gun Possession?
The possession of firearms is limited by gun control laws to ensure public safety. Whether it is illegal for an individual to possess a firearm will depend on numerous factors, including:
- The individual’s age;
- Their background;
- The type of gun possessed; and
- Whether they are violating concealed carry laws.
There are also additional details related to these factors that are considered for gun control laws, including:
- Age and type of gun: Federal laws prohibit the sale of a handgun to any individual who is under the age of 18. This restriction does not apply to long guns, for example, rifles and shotguns;
- Each state may implement more strict age requirements;
- The minimum age to purchase a handgun in many states is 21 years old;
- Background: An individual’s criminal history can also make it illegal for them to possess a firearm. Federal laws prohibit the sale of a firearm to any individual who:
- Has been charged with or convicted of a crime in a federal court that carries a possible sentence of over a year in jail, which is typically a felony;
- Has been charged with or convicted of a crime in state court that is a misdemeanor that is punishable by more than 2 years in prison or is a felony;
- Is a fugitive;
- Is known to be addicted to a controlled substance, which requires that the individual has “lost the power of self-control with reference to the use of controlled substance”;
- Has been found by a court or other lawful authority to be a danger to themselves or others, or who have been involuntarily committed for drug or alcohol abuse or mental health issues;
- Has been convicted of specific crimes or is subject to a court order involving domestic violence or a serious mental condition;
- Is in the U.S. illegally; or
- Was dishonorably discharged from U.S. Military Service.
Certain locations prohibit firearm possession, even by individuals who can legally possess firearms elsewhere. Federal laws prohibit firearm possession at locations including:
- Federal facilities such as courthouses;
- Post offices;
- In airports and on airplanes;
- One exception to this rule is when the weapon:
- is unloaded;
- is in a checked bag; and
- the airline is made aware of the weapon; and
- K-12 school zones, except when an individual has a state-issued concealed carry permit.
Other areas where state laws commonly prohibit firearms include:
- Bars or restaurants that serve alcohol;
- Polling places; and
- Daycare facilities.
What are Illegal Firearms?
Illegal firearms may have two different meanings, including:
- Obtaining firearms illegally. For example, if an individual buys guns off the back of a van in an alley, it is most likely an illegal firearm;
- Certain weapons cannot be possessed legally, no matter the circumstances.
What Types of Firearms are Considered Illegal to Possess?
There are numerous different types of illegal firearms, typically including:
- Unregistered firearms;
- Firearms with the serial number removed;
- Stolen or illegally obtained firearms;
- Automatic weapons or machine guns;
- Sawed-off shotguns. Federal law states the barrel of a shotgun must be at least 18 inches; and
Individuals should be aware that gun laws may vary greatly depending on the region and the type of gun. For example, certain types of sawed-off shotguns are illegal to possess, while other types of sawed-off shotguns may be possessed as long as they conform to certain tax laws.
Some firearms may be illegal for an ordinary citizen to possess, but certain individuals, such as law enforcement personnel or persons with certified training, can use them.
What are the Consequences for Possessing Illegal Firearms?
If an individual is caught with an illegal firearm, it is a felony. The severity of the individual’s punishment depends on many factors, including whether they committed a crime with an illegal firearm or their criminal history.
A conviction for possessing an illegal firearm may result in the following:
- Parole or probation;
- Heavy fines; and
- Being unable to possess legal firearms in the future.
Do I Need a Criminal Law Attorney?
If you have any issues, questions, or concerns regarding the laws that regulate the sale of firearms by a private seller, it may be in your best interests to consult with a criminal law attorney who has experience in firearm regulations. The sale of firearms is governed by a complex set of federal, state, and local laws, so it is important to obtain expert advice before engaging in firearm sales.
Your attorney can advise you regarding firearm sales in your state as well as the individuals to whom it may be legal for you to sell a firearm.