The Gun Control Act (GCA) generally prohibits any person from transferring firearms to any unlicensed person who they know or have reasonable cause to believe does not reside in the State in which the transferor resides. See 18 U.S.C. § 922(a)(5).
Longstanding Federal firearms regulations at 27 C.F.R. 478.11 define the term “State of residence” differently for U.S. citizens and aliens. A U.S. citizen’s State of residence is the State in which he or she is present with the intention of making a home; while an alien is considered a resident of a State if he or she has resided in that State for a period of at least 90 days prior to the date of transfer with the intention of making a home.
As you know, Federal firearms licensees (FFLs) are required to obtain documentation establishing that an alien legally in the United States has resided in the State continuously for at least 90 days prior to the transfer of the firearm. This documentation is currently recorded as a response to Question 20c of the Firearms Transaction Record, ATF Form 4473.
The Department of Justice (the Department) has recently concluded that, as a matter of law, applying a more stringent State residency requirement for aliens legally present in the U.S. than for U.S. citizens is incompatible with the language of the GCA.
As a result, ATF will be revising the regulations in 27 C.F.R. Part 478 to conform to the Department’s conclusions by removing the separate 90-day residency requirement for aliens.
Once the regulations have been revised, both U.S. citizens and aliens legally present in the U.S. will be subject to the same requirements for State residency and proof of residency.
ATF LETTER / PDF
UPDATE / ADDED:
This is the rule as presently written. The ALIEN portion is being revised. Pay attention to U.S. citizen requirements!
PART 478—COMMERCE IN FIREARMS AND AMMUNITION
State of residence. The State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State. If an individual is on active duty as a member of the Armed Forces, the individual's State of residence is the State in which his or her permanent duty station is located. An alien who is legally in the United States shall be considered to be a resident of a State only if the alien is residing in the State and has resided in the State for a period of at least 90 days prior to the date of sale or delivery of a firearm. The following are examples that illustrate this definition:
Example 1. A maintains a home in State X. A travels to State Y on a hunting, fishing, business, or other type of trip. A does not become a resident of State Y by reason of such trip.
Example 2. A is a U.S. citizen and maintains a home in State X and a home in State Y. A resides in State X except for weekends or the summer months of the year and in State Y for the weekends or the summer months of the year. During the time that A actually resides in State X, A is a resident of State X, and during the time that A actually resides in State Y, A is a resident of State Y.
Example 3. A, an alien, travels on vacation or on a business trip to State X. Regardless of the length of time A spends in State X, A does not have a State of residence in State X. This is because A does not have a home in State X at which he has resided for at least 90 days.
A Justice Department spokesperson said this does not expand any rules under the Gun Control Act, it merely removes a previous stipulation for legal aliens. Those who fall under the category of legal alien will still have to go through the same process as an American citizen does to purchase a firearm, showing proof of residency, among other things, the spokesperson said. The spokesperson could not specify when this decision was made, but said that the department regularly conducts legal reviews of these rules and such reviews occur on an ongoing basis.
Nonimmigrant visitors to the United States who entered without a visa would still have to meet other requirements to buy a weapon — including establishing that they are residents, such as by obtaining a driver’s license with a local address.
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