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Private Gun Sales: Are They Legal?

Going through the proper channels

Gun sales by Federal Firearm License dealers (FFL dealers) provide a safely regulated and legal method for purchasing firearms. Typically, these are licenses held by store owners, wholesalers, and some gun show sellers. FFL dealers can range from big to small entities all throughout the United States. They can even oversee and facilitate transactions between private sellers and buyers.

Still, some private sellers prefer to sell directly to their buyers without the regulation or safety provided through federal oversight. While the federal government forbids gun sales to certain individuals, such as people convicted of violent crimes, each state provides additional regulations you should also be aware of if you plan to transact a private gun sale.

What You Need To Know

  • Gun sales are regulated at both a federal and state level.
  • Gun sellers that obtain a federal license are subject to a higher degree of regulation than private sellers.
  • Still, private sellers that do not conduct sufficient background checks can be in serious legal jeopardy should they sell to someone that is restricted by law from purchasing a firearm.
  • Private gun dealers that want to ensure the sufficiency of their background checks can complete their transactions through federally-licensed dealers.

Federal Law on Gun Sales

The Second Amendment of the Constitution affords United States citizens the right to keep and bear arms, but this right comes with certain restrictions. For example, FFL dealers are required by law to perform background checks. Thanks to the passage of the Brady Handgun Violence Prevention Act of 1993, it is against federal law to sell firearms to individuals that are:

  • Convicted of a crime punishable by a sentence greater than one year
  • Fleeing from the law
  • Addicted to controlled substances
  • Suffering from mental illness or have been committed for mental illness
  • In the United States illegally
  • Dishonorably discharged from military services
  • Currently the subject of a protective court order
  • Convicted of a misdemeanor for domestic violence
  • Under the age of 18

However, state regulations associated with private gun sales are murkier. Some, but not all states, require private sellers to carry out background checks. The Bureau of Alcohol, Tobacco, and Firearms lays out the expectations for FFLs when performing these checks on behalf of private sellers.

What Constitutes a Legal Private Gun Sale?

The answer to this question often depends on the state where the private gun sale took place. This is because states have their own gun laws and regulations in addition to the federal regulations that were passed in the Brady Act. The list of people that gun owners cannot sell to gets rather long, depending on your state. So, it's best to consult a local attorney with experience in this legal topic.  

Private gun sellers have fewer regulations to abide by, but that does not necessarily mean their legal burden is eased. Many private gun sellers do not have the ability to perform sufficient background checks that clear the buyer of all state and federal hurdles. Additionally, without the knowledge that comes with obtaining licensure, these private sellers may not even be aware of which rules and regulations apply.

Therefore, many private sellers complete their transactions through licensed dealers. This way, the seller can be assured that they are selling to someone who doesn't have any legal restrictions that could later come back to bite the seller. The ATF's useful guide educates private parties on how to properly complete a transaction through an FFL dealer.

Should I Speak With an Attorney?

If you took part in a private gun sale and have questions about its legality, it's never a bad idea to speak with an experienced and knowledgeable attorney.

An experienced lawyer can evaluate the facts of your situation to help you make informed decisions. They also have a robust knowledge of the criminal justice system, state courts, and federal courts. When you need to find an attorney, consider utilizing a database like the one provided by Super Lawyers.

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