Can you *legally* purchase a firearm if you wouldn't pass a NICS check?

[rbhargan]

First, I am NOT interested in stirring up a sh*t storm (although, being INGO, that will probably be where this thread heads). Very simple question - if a person would NOT be able to pass a NICS check, and they then purchase a firearm from a private seller, has the purchaser committed a crime?

Followup questions.
- If the seller *knows* the purchaser is an alcohol "abuser," uses marijuana, has a history of domestic violence, or any other offense that would preclude them from passing a NICS check, is the seller in violation of the law?

I would appreciate a 24 hour period of reasoned response before the thread takes the inevitable turn towards chaos and acrimony.

 

[Clay Pigeon]

 

[Birds Away]

IANAL or a LEO but, based upon my understanding of the law, the answer to both questions is yes.

 

[crispy]

"Uses Marijuana" would exclude a LOT of people.

Especially in those states where it is "state legal".

 

[chezuki]

Bacon egg and cheese croissant.

 

[Jeepster48439]

I think you already know the answers.

First, I am NOT interested in stirring up a sh*t storm (although, being INGO, that will probably be where this thread heads). Very simple question - if a person would NOT be able to pass a NICS check, and they then purchase a firearm from a private seller, has the purchaser committed a crime?

Illegal possession of a handgun?

Followup questions.
- If the seller *knows* the purchaser is an alcohol "abuser," uses marijuana, has a history of domestic violence, or any other offense that would preclude them from passing a NICS check, is the seller in violation of the law?

Yes.

IANAL. Any of the INGO legaltypes feel free to correct me if I am wrong.

 

[Frank_N_Stein]

35-47-2-1: prohibition of person convicted of Domestic Violence from carrying/possessiong handgun

35-47-2-7: level 5 felony to sell a handgun or "assault weapon" to someone you know is prohibited from possessing either.

My advice, don't do it if you are the prohibited person or the seller.

 

[HoughMade]

Purchaser- probably a crime (very probably).

Seller, maybe not- depends on knowledge.

 

[Frank_N_Stein]

Seller, maybe not- depends on knowledge.

I think he knows.

 

[throttletony]

Purchaser- probably a crime (very probably).

Seller, maybe not- depends on knowledge.

This is where I line up also.

 

[HoughMade]

I think he knows.

Sounds like it...but I was replying to a hypothetical, not giving legal advice.

 

[Ballistix]

Bacon Bacon and Bacon croissant.

Fixed...

 

[jgressley2003]

If I was the seller and knew the info that you provided, I would steer clear of selling to that person.

 

[Old Dog]

Look up GCA 68; it's a felony for a prohibited person to possess a firearm, and a felony to sell a firearm to a known prohibited person.

 

[jwh20]

I will point out, however, that getting a "NO" from an NICS check is not necessarily an indication that the person is a prohibited person under the law. For example former President Obama (I like the sound of that) required that individuals receiving assistance with their Social Security benefits were to be reported to the NICS. These people are NOT necessarily prohibited by any law or other due process of law. So my opinion would be that they would be perfectly legal to posses or purchase a firearm. Being prohibited, unlawfully in my view, from purchasing at an FFL, what law would they be breaking by buying from an individual? This, of course, assumes that they are truly a "proper person."

 

[SEIndSAM]

I think the tricky part would be proving the seller knew the buyer was prohibited. Unless they were a close relative.

 

[Frank_N_Stein]

Sounds like it...but I was replying to a hypothetical, not giving legal advice.

Never do that for free.

 

[Fargo]

You are going to have to specific as to why you can't pass a NICS check, but outside of an erroneous return generally it is going to be unlawful.

It isn't unlawful for you to buy a gun because of a NICS return, it is unlawful for you to buy the gun because of federal statutes classifying you as a prohibited person. 18 USC 922 is the federal statute generally in question. If you knowingly sell to a person prohibited under it, you would likely be in direct violation of the law or considered a conspirator.

The big exception I would think is the 21-year-old requirement to buy a handgun from an FFL. However, I don't think that is part of the NICS check.

 

[bwframe]

Just in waiting for the INGO heathens, that the OP thinks will show up...

 

[Kirk Freeman]

Cannot pass a background check because . . . . ?