New regulation about taking foreign nationals to gun range?

[TailGator]

I ran across a new regulation this weekend.

I have mentioned here before that I have a young friend my daughter's age who is a native of Belgium and now lives in Germany. She has visited for extended periods, and my wife and I have become quite fond of her. On her first visit, she accepted an invitation to go to a pistol range with us, and she proved to be quite a quick learner. On each of her subsequent two visits, she said soon after her arrival that she wanted to go shooting again if we would take her, and we cheerfully obliged.

It had been three years since her last visit, and in looking at the website of a new range, closer to my daughter and son-in-law's house and therefore more convenient for our plan for that day, we saw that foreign nationals were required to purchase a hunting license to use the range. We had not encountered that before, so my daughter called to confirm the requirement, and was told that it was a federal requirement, and that she could purchase any hunting license at any site (and the range personnel actually recommended WalMart, Bass Pro, or Academy as places to purchase the license) but that they had to enforce the federal regulation.

Since it was not required by my local range on her previous two visits, I wonder: Is it a new law? Or was it something that didn't get enforced on her previous visits three and six years ago? I am pretty well known at my local range, enough so that I am never asked for ID. The possibility occurred to me that, because she was with me, they never asked for her ID, and thus didn't realize that she was a foreign national, and in turn unwittingly violated the regulation.

I don't think this was an attempt by the range to run up the bill, because they encouraged us to buy the license elsewhere. If this regulation is real, what is its purpose? There was no safety or training requirement for the license, just filling out a form and forking up some money to the state.

Any enlightenment from those familiar with this regulation would be welcome. It was completely new to me.

(BTW, the young lady is a natural with a pistol. In less than an hour, she was again shooting fist-sized groups at 7 to 8 yards with any pistol she picked up. This was after three years with no firearms practice, and two previous sessions of an hour or so each, separated by three years. Its probably because I'm such a good teacher. That's what I keep telling myself, anyway.)

 

[Frank Ettin]

It's not new. I believe that the change in the law dates back to 1996. It just seems that many ranges haven't been paying close attention to the law.

Basically, with just a few exceptions (having a hunting license being one of them) a foreign national visiting this country on a non-immigrant visa is a prohibited person and may not have possession (i. e., control of) a gun or ammunition.

This was discussed on TFL here, here, here, and here.

 

[USNRet93]

Interesting..just went to a local range with a friend, citizen of Peru..thick accent..he shot my Glocks..nobody at the range said a word..He was quite good too, as a guy who has never held a gun in his life(65YO)...

 

[NoSecondBest]

Odd, I've been to several large (very large) shoots in this country where there were people from a number of foreign countries participating. I would bet that none of them had a hunting license. Seems odd also that a federal law would require buying a state hunting license. Can anyone show where to read that statute? Here's one thing I found, and it clearly differentiates between sales and use. https://fas.org/sgp/crs/misc/firearms.pdf
Also, hasn't anyone noticed all the Canadians coming over to the US to participate in shooting events? Sporting Clays being one of them. Even here in the state of NY, we've had shooters cross the borders and declare their guns to attend matches here in the U.S. Las Vegas has several gun ranges where tourists can rent and shoot guns. The exceptions go on and on. Either there's a lot of people breaking federal law, or it's an urban myth about them being restricted from shooting guns here. Again, sales are different.

 

[TailGator]

Post #9 in the first link provided by Frank Ettin quotes the law. I certainly was not aware of it, and as I said in the first post, it has not been enforced on my friend's previous two trips. Sounds like it is not widely known, considering that the TFL gang is pretty knowledgeable and I am not the only one ignorant of the provision.

And thanks, Mr Ettin, for the info.

 

[LRDGCO]

The operative clause in 27 CFR §478.32 "....receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce, or possess any firearm or ammunition in or affecting commerce"

An alien possessed of correct visa and being in the United States legally whose possession of firearms does not affect commerce (ie, legal foreign folks you take to the range) does not require a valid hunting license (which they would find hard to get in jurisdictions requiring a hunter ed course from a US state in any event). It is arguable that said same individual(s) renting a firearm from the range may indeed be affecting commerce and therefore require a hunting license. This is of course in regards to federal law. State laws regarding what constitutes the transfer of a firearm may have other implications.

However, since the courts have recently ruled that illegal aliens in procession of firearms are innocent of a crime if ignorant of the law, professed ignorance may be enough for legal aliens. Although, their legal status may damn them before the courts.

 

[Mike38]

There was no safety or training requirement for the license, just filling out a form and forking up some money to the state.

Maybe not in Florida, but in Illinois, and many other states, you have to attend and pass a one time hunter's safety course before getting a hunting license. Maybe the Feds use this as a means to try and make sure foreign nationals have at the least basic safety training?

 

[Aguila Blanca]

An alien possessed of correct visa and being in the United States legally whose possession of firearms does not affect commerce (ie, legal foreign folks you take to the range) does not require a valid hunting license (which they would find hard to get in jurisdictions requiring a hunter ed course from a US state in any event).

Do you have any court cases to back up this assertion?

Where is a foreign national going to find either a firearm or ammunition in the United States that has not been, in some way, involved in interstate commerce?

 

[Frank Ettin]

The operative clause in 27 CFR §478.32 "....receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce, or possess any firearm or ammunition in or affecting commerce"

An alien possessed of correct visa and being in the United States legally whose possession of firearms does not affect commerce....

Can you cite any actual legal authority to support that contention? I bet you can't. In fact I know you can't because I did the research some years ago and therefore know that you are wrong. (And while you cited an ATF regulation, the courts will usually look at the statute on which the regulation was based, i. e., 18 USC 922(g).)

So let's see what the courts have said about the interstate commerce issue under 18 USC 922(g):

1. In U.S. v. Chesney, 86 F.3d 564 (C.A.6 (Tenn.), 1996), the Sixth Circuit affirmed, against a Commerce Clause challenge Chesney's conviction for being a felon in possession of a firearm.
   
   In rejecting Chesney's assertion that the 18 USC 922(g) is unconstitutional, the court of appeal noted, at 568 -- 569:

   ...another panel of this court has held § 922(g)(1) to be constitutional. In United States v. Turner, 77 F.3d 887 (6th Cir.1996), a unanimous panel held that " § 922(g)(1) represents a valid exercise of legislative power under the Commerce Clause." Id. at 889. As this court wrote in Turner, "Every court of appeals that has been faced with this question since Lopez has held that the jurisdictional element of § 922(g) provides the requisite nexus with interstate commerce ....

   
   In rejecting Chesney's assertion that the statute can not be applied in his case, the court of appeal noted, at 570 -- 571:

   ...Chesney, unlike the defendant in Turner, also challenges § 922(g)(1) as applied to him by arguing that his conviction is unconstitutional because the government failed to prove any "substantial nexus between the crime charged and interstate commerce." Chesney stipulated that the gun had moved in interstate commerce, and such a stipulation is sufficient evidence to support Chesney's conviction pursuant to § 922(g)(1). See United States v. Lee, 72 F.3d 55, 58 (7th Cir.1995) (stipulation that gun was in or affecting commerce sufficient evidence to support a conviction under § 922(g)(1)). ...
   
   The Supreme Court has held that proof that a firearm moved in interstate commerce at any time is sufficient to meet the government's burden of proving the "in commerce or affecting commerce" element of § 1202(a), the predecessor to § 922(g)(1). Scarborough v. United States, 431 U.S. 563, 566-67, 97 S.Ct. 1963, 1964-65, 52 L.Ed.2d 582 (1977). Although Scarborough was decided as a matter of statutory construction, the Court noted that Congress knew how to assert " 'its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce,' " and that Congress intended to exercise the full extent of its Commerce Clause power when enacting § 1202(a). Id. at 571-72, 97 S.Ct. at 1967-68 ...
   
   All of the courts of appeals to consider the issue since Lopez have concluded that § 922(g)(1), as construed to require only the minimum nexus to commerce approved in Scarborough, is constitutional. See, e.g., McAllister, 77 F.3d at 390; Sorrentino, 72 F.3d at 296; Shelton, 66 F.3d at 992; Hanna, 55 F.3d at 1462 n. 2.,...

   
   
2. In U.S. v. Singletary, 268 F.3d 196 (3rd Cir., 2001), the Third Circuit affirmed a conviction for being a felon in possession against an attack on the constitutionality of 922(g), at 197:

   ...Singletary contends that the felon-in-possession statute is unconstitutional because the conduct it proscribes -- the intrastate possession of a firearm -- does not have a substantial effect upon interstate commerce, and thus does not constitute a valid exercise of Congress' authority under the Commerce Clause. Specifically,...

   
   In rejected Singletary's assertion, the court of appeal noted, at 200:

   ...the Court in Scarborough v. United States had the opportunity to address squarely "whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce." 431 U.S. 563, 564 (1977). The Court accepted the Government's contention that it only need prove that "the firearm possessed by the convicted felon traveled at some time in interstate commerce." Id. at 568. Thus, the Scarborough Court established the proposition that the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession a sufficient nexus to interstate commerce to fall within the ambit of the statute. Because S 1202(a) is the predecessor to the current felon-in-possession statute, this statutory construction applies equally to S 922(g)(1)....

   
   
3. In United States v. Hoyle, 697 F.3d 1158 (10th Cir., 2012), the Tenth Circuit affirmed Hoyle's conviction for being a felon in possession. In doing so the court of appeal noted, at 1165:

   ... “Section 922(g) requires that the firearm be possessed ‘in or affecting commerce.’” United States v. Williams, 403 F.3d 1188, 1195 (10th Cir.2005) (quoting 18 U.S.C. § 922(g)). The Supreme Court has affirmed the Fourth Circuit's holding that: “[T]he interstate commerce nexus requirement of the possession offense was satisfied by proof that the firearm [defendant] possessed had previously traveled in interstate commerce.” Scarborough v. United States, 431 U.S. 563, 566, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)...

So the interstate commerce element of the crime is satisfied if the gun or ammunition previously traveled in interstate commerce.

...since the courts have recently ruled that illegal aliens in procession of firearms are innocent of a crime if ignorant of the law,...

That's also wrong.

But first let me point out that if you're going to refer to a court decision you really need to provide a proper citation. We all need to know exactly what court decision you're referring to and where it may be found. We all should have that information so that if we wish we can find the decision and verify whether or not you got things correct. And here you did not.

In any event, the case you're referring to is Rahaif v. United States (No. 17–9560, Supreme Court, June, 2019). And no, the Supreme Court did not say that ignorance of the law would exonerate a defendant. What the Court actually said was (slip op at 9):

...A defendant who does not know that he is an alien “illegally or unlawfully in the United States” does not have the guilty state of mind that the statute’s language and purposes require....

In law details matter.

 

[Ignition Override]

With so many adults (born in the US) who Also have never handled a gun, this is simply a law to give people something else to worry about. Being a foreigner doesn’t make anybody less safe with a gun.

Having common sense is the real issue.

 

[Aguila Blanca]

Having common sense is the real issue.

No, the issue is that a question was asked: Is it legal for a foreign visitor in the United States to go to a shooting range and shoot? The answer is "No." Federal law specifically says this is not legal.

That may not appear to be common sense, but that is the law.

 

[P5 Guy]

Looking for common sense in legislation is a hopeless cause.

 

[NoSecondBest]

No place like the internet to get really good legal advice....as well as medical. Lots of knowledge on the net. I wish the US Border Patrol would read all this and stop all the Canadians from coming across the border to attend shooting matches here in the US. When are the Border Patrol and Customs people going to read all this and start doing their jobs? It's happening every day along the US/Canadian border and no one's doing anything about it. I wonder why?

 

[Frank Ettin]

...I wish the US Border Patrol would read all this and stop all the Canadians from coming across the border to attend shooting matches here in the US....

One of the reasons people often remain ignorant is that when they see something that doesn't seem to fit they guess about it instead of spending some time and energy to do some research.

One reason Canadians can come to the U. S. to compete in shooting matches is found in 18 USC 922, which was cited and quoted in full in this post, which is in one of the threads I linked to in post 2 in this thread. 922 sets out some exceptions to 18 uSC 922(g)(5). See 18n USC 922(2)(A):

...admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States;...

Another reason is described in this post:

...The statutes I cited prohibit possession of guns or ammunition by aliens present in the United States on a non-immigrant visa. However, there is a program under which a foreign national from one of a number of participating countries my enter the United States for a limited period of time without a visa. And I believe that Canadian citizens may also visit the U. S. without a visa.

ATF (see Q5 and Q6) has decided that lawfully entering the United States as a non-immigrant when permitted without a visa is not the same as entering with a non-immigrant visa, and therefore such a non-resident alien in not subject to the 18 USC 922(g)(5) prohibition. It looks like this ATF interpretation was made around 2012.

The Visa Waiver Program applies to visitor from most European countries, several Asian countries, and one South American country. It doesn't include any Middle Eastern or African countries. The requirements for a visa are waived only for visits for business or pleasure not to exceed 90 days.

And again, I've mentioned prosecutorial discretion. The Federal Government may choose not to vigorously pursue prosecution of some offenses. That doesn't necessarily mean that a federal prosecutor might not decide to pursue prosecution of a particular violation, nor does it mean that a policy not to vigorously pursue prosecution of certain offenses can't be changed without notice at any time.

And while not covered by the Visa Waiver program described in that post, Canadians generally don't require a visa to visit the U. S., as described here.

 

[pwc]

So, no matter, citizen or alien, the only firearm NOT tied to 'commerce" is the one not yet made.

 

[Hal]

pwc - yep & when they do make them, they'll be made out of unobtainium and come with a hostler made of unicorn hide....

 

[TailGator]

So in this instance, it would have been my Belgian friend who could have been charged with a crime without a hunting license, not the range employees or owners?

I hate hearing this, because this young lady looks forward to going shooting when she visits. She only gets to come every three years or so, and has zero opportunity to shoot at home in Germany.

 

[Kevin Rohrer]

Hmmm, so our Constitution protect aliens (both legal and illegal) for everything in it except the 2A. Interesting.

 

[Aguila Blanca]

So in this instance, it would have been my Belgian friend who could have been charged with a crime without a hunting license, not the range employees or owners?

Maybe Frank Ettin or Spats McGee will correct me, but I would think that if the range has a sign-in log that shows each customer's address, and if she signed in with her home address and spoke with a Belgian accent, it's entirely possible that the range employee and owner might also be charged as accessories. The old "You knew or should have known" routine ...

Do Belgians need a visa to visit the United States? Looks like Belgians are eligible for the Visa Waiver Program (VWP):
https://be.usembassy.gov/visas/visa-waiver-program/

If she doesn't need a visa, then it would appear that the prohibition does not apply to her. [I'm not sure I understand how the BATFE arrived at that interpretation, but that's why I'm not a lawyer.]

 

[Cirdan]

Strange. I was in West Yellowstone a few years ago. There was an indoor range charging Japanese tourists $250+ for the "movie" experience. One mag through an AK 47, Uzi, or M4 using a movie poster for a target.

They were lined up out the door.