Selling a firearm privately is considered to be a secondary sale of a firearm. This is because the firearm was initially purchased from a licensed gun dealer prior to being resold privately.
A private seller of a firearm is not required to have a license to sell guns. Federal laws only require that individuals be licensed as dealers if they are engaged in the business of selling firearms.
Individuals who do not sell firearms for a living, in general, are not required to obtain a federal license.
What Are Private Sellers of Firearms Required to Do?
Because a private seller is not federally licensed, they are not required to run a background check on a prospective purchaser under the Brady Law. In addition, a private seller is not required to comply with other Brady Law provisions, including keeping records of sales of firearms or selling firearms from a specific business location.
A private seller, however, should not sell any firearms or ammunition to any individual whom the seller knows or reasonably should have known is under 18 years of age or is otherwise not permitted to purchase a firearm. Numerous private sales occur at gun shows.
Because of this, the lack of a background check requirement for a private seller is often referred to as the gun show loophole for a prospective purchaser.
Am I Required to Conduct a Background Check on the Purchaser?
As noted above, federal laws do not require a private gun seller to obtain a background check on any gun purchaser. A private gun seller, however, may be required by the laws of the state to perform a background check on a purchaser.
At least 17 states as well as Washington, D.C. require some form of a background check to be performed on the purchaser, even by a private gun seller. States which require a private seller to obtain a universal background check include:
- California;
- Colorado;
- Connecticut;
- Delaware;
- New York; and
- Rhode Island.
What if I Am Only Selling a Handgun?
There are some states which require a background check only for a handgun purchase. States which require a private seller to conduct a background check on a purchaser include:
- Hawaii;
- Maryland;
- New Jersey; and
- Pennsylvania.
In the State of Florida, this requirement will depend upon the jurisdiction.
Am I Required to Make Sure the Purchaser has a Permit?
Whether a private seller must ensure that the purchaser of the firearm has a permit will depend upon the state in which they reside. In some states, such as Iowa and New Jersey, a private seller is only permitted to transfer a firearm to a purchaser with a state license or permit.
What are Some Restrictions on Gun Possession?
Firearm possession is limited by gun control laws in order to ensure public safety. Whether it is illegal for an individual to possess a firearm will largely depend on 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 regarding factors which are considered for gun control laws, including:
- Age and type of gun: Federal laws prohibit the sale of a handgun to anyone who is under 18 years of age. This restriction, however, does not apply to long guns, such as rifles and shotguns;
- Each state may implement more strict age requirements. Because of this, the law differs by state so that the minimum age to purchase a handgun in many states is 21 years of age;
- Background: An individual’s criminal background can also make it illegal for them to possess a firearm. Federal law prevents the sale of a gun to any individual who:
- Has been convicted of or charged with a crime in federal court, that carries a possible sentence of over a year in jail, which is generally a felony;
- Has been convicted of or charged with a crime in state court, that is a felony or is a misdemeanor that is punishable by more than 2 years in prison;
- 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 certain crimes, or is subject to a court order associated with domestic violence or a serious mental condition;
- Is in the U.S. illegally; or
- Was dishonorably discharged from U.S. Military Service.
There are also certain locations where firearm possession is prohibited, even by an individual who may legally possess a firearm elsewhere. Federal laws prohibit firearm possession at:
- Federal facilities such as courthouses;
- Post offices;
- Airports and on airplanes, except when the weapon is unloaded, is in a checked bag, and the airline is made aware of the weapon; and
- School zones, meaning K-12, except when an individual has a state-issued concealed carry permit.
Other areas where firearms are commonly prohibited by states include:
- Bars or restaurants that serve alcohol;
- Churches;
- Polling places; and
- Daycare facilities.
How do Gun Laws Differ from State to State?
Pursuant to the Second Amendment to the United States Constitution, American citizens have the right to bear arms. Due to the concept of state’s rights, each state has different regulations regarding gun possession.
For example, the State of Texas:
- Does not have any regulations on purchasing an assault rifle;
- Does not have any requirements for registering a firearm once it is purchased; and
- Allows gun owners to carry a firearm with little government interference.
California, in contrast, bans the sale of certain types of firearms and makes it a criminal misdemeanor to openly carry an unloaded firearm in specific areas. The majority of gun legislation in the U.S. is enacted at the state level.
Each state takes a different approach in terms of the following issues:
- Sales, such as whether background checks are required, the age an individual must be in order to purchase a firearm, etc;
- Permits, such as whether one is required and how long it takes to process;
- Licensing laws;
- Carrying laws, meaning open carrying laws versus concealed weapons; and
- The legal use of guns in self-defense.
What are Some Other Gun Possession Restrictions?
Gun possession restrictions may be based on the way a firearm is being held or carried by the owner. For example, carrying a concealed firearm in public may be a crime, depending on the state.
There are 15 states that do not prohibit concealed carry but require the owner to obtain a concealed carry permit. In 5 states, open carry, where the firearm is visible, in public is banned in 5 states, but allowed in 15 states with a permit.
An individual who has been convicted of a felony is almost always prohibited from carrying a firearm. A felon in possession of a firearm is typically punished harshly.
Do I Need to Talk to a Criminal Law Lawyer?
The sale of firearms is governed by numerous, complex local, state, and federal laws. If you have any issues, questions or concerns related to gun law regulations and the sale, purchase, or carrying of a firearm, it may be helpful to consult with a criminal law attorney.
Your attorney can advise you of the laws of your state related to firearms as well as their use and sale. Your lawyer can review the circumstances of your potential sale or sale and assist you in following all gun sale and firearm possession regulations.
