New regulation about taking foreign nationals to gun range?

[LRDGCO]

Why so rude Frank? I take it you fancy yourself The Legal Authority and resent having your opinions challenged?

You have an opinion on the the two cases in question. I have offered the text of the law to show that it appears to differ with your considered and weighty opinion on the matter. And with regards to the UAE student who was found not guilty of illegal firearms possession by virtue of his ignorance of the implications of losing his visa status, drew the appropriate conclusion.

You really shouldn't let other people providing opinions that differ from your own bother you so much. First, it's not that important and second, nobody can take the Law Review away from you.

 

[Aguila Blanca]

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.

Others have reported that there's a range in (IIRC) Las Vegas that caters to foreign tourists. The fact that it happens doesn't mean it's not illegal.

 

[Aguila Blanca]

I have offered the text of the law to show that it appears to differ with your considered and weighty opinion on the matter.

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"

The text of the law you cited does not even appear to differ with Frank's opinion. In that law, "... in or affecting [interstate] commerce" refers to the firearm, not to the act of the person renting or shooting the firearm.

If you have specific case law to support your contention that the law only addresses whether the foreigner's possession of a firearm or ammunition involves interstate commerce, please post a link to the citation.

 

[Frank Ettin]

...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....

Nonetheless, the statutes say what they say, and the cases say what they say.

But there is also the well established doctrine of prosecutorial discretion. Prosecutors generally can decide how to use limited resources. They might , for example decide as a matter of policy not to vigorously pursue prosecution of certain crimes under certain conditions, thus saving their resources for matters which are considered more important.

So, for example, federal prosecutors have not been vigorously prosecuting limited, personal marijuana use in States which have legalized medical or recreational marijuana use.

Of course the a prosecutor's exercise of his discretion doesn't change the law. And he can always decide to prosecute a violation of a type which he had previously or generally ignored. Nor did the current, apparent lack of enforcement stop federal prosecutors from bringing charges against a couple of guys from Saudi Arabia for renting guns in San Diego County

 

[Frank Ettin]

Why so rude Frank?....

Understand well that I have no patience with unqualified people who try to play lawyer and post lousy, unsupported information. Bad information, such as you've posted could get someone in a lot of trouble if he were foolish enough to pay attention to it.

....I take it you fancy yourself The Legal Authority and resent having your opinions challenged?....

I have no problem with my opinion being challenged, as long the challenge is properly supported with legal authority. On the other hand, I do resent people posting hogwash on legal matters.

...I have offered the text of the law to show that it appears to differ with your considered and weighty opinion on the matter...

What you don't understand is that the text you quoted has been considered and construed by federal courts of appeal. Those courts have decided what the text means and how it applies. That is called case law and will control what the law means and how it will be applied by courts. Based on the case law, your understanding of the law and how it works is incorrect. And the applicable court decisions support my view of the law.

One can never rely on the language of a statute alone. One must always do the research necessary to find and relevant court decision to see how the language of a statute was interpreted and applied. If there are no cases applying a statute one'd understanding of the meaning and application of the statute will at best be incomplete.

...And with regards to the UAE student who was found not guilty of illegal firearms possession by virtue of his ignorance of the implications of losing his visa status, drew the appropriate conclusion.

And thank you for confirming that you (1) did not read the Supreme Court's opinion in Rahaif v. United States' and (2) you really understand nothing about the law.

Rahaif was not found "not guilty." He was convicted at his trial. He appealed. An appeal is based on a claim of a legal error at the lower court level, in this case a faulty jury instruction. Ultimately the Supreme Court agreed that the jury instruction was faulty. But that's not the same as Rahaif being found not guilty.

The Supreme Court tells us the disposition, slip op, at 12:

...We accordingly reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

The Court of Appeals would now ordinarily reverse the conviction and order a new trial. The prosecutor might decide then to retry Rahaif and now take better care to put on evidence that Rahaif did in fact know that with the expiration of his visa he was no longer legally present in the United States. Alternatively, the U. S. Attorney might decide to simply not to bother and drop the charges.

You no doubt read some media stories about the case. But the only way to understand a court decision is to read the decision itself.

 

[Aguila Blanca]

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.]

Having re-read the BATFE Q&A on this topic, it should be noted that they state and reiterate in several of the answers that non-immigrant aliens who are present in the U.S. without a visa (i.e. under the visa waiver program) are not prohibited from possessing or receiving firearms, BUT they must satisfy residency requirements in the state where the transfer or possession will occur.

To the BATFE, this means the person is in the state with the intention of making that state their home. By definition, a European who is in the United States for a week or three as a tourist or a personal house guest is not here with the intention of making the U.S. their home. Thus, the VWP "loophole" looked good initially, but when you actually read the supporting documentation, it doesn't appear to offer any relief after all.

https://www.atf.gov/resource-center/docs/non-immigrant-alienspdf/download

A4. ...

To acquire a firearm, you must demonstrate the intention of making a home in a particular State. The intention of making a home in a State must be demonstrated to a Federal firearms licensee by presenting valid government issued identification documents indicating an address in the state in which the licensee’s place of business is located. Such documents include, but are not limited to, driver’s licenses, voter registration, tax records, or vehicle registration. For more information, see ATF Ruling 2001-5 available at:
http://atf.gov/regulations-rulings/rulings/atf-rulings/atf-ruling-2001-5.html.

A5. A nonimmigrant alien who is lawfully admitted to the United States without a visa (e.g. Visa Waiver Program), may acquire or possess a firearm in the United States, provided that he or she is not prohibited from shipping, transporting, receiving, or possessing firearms or ammunition in the U.S.

In addition, a nonimmigrant alien legally in the United States with or without a nonimmigrant visa may lawfully acquire a firearm only if he/she meets State of residence requirements as required by the Federal government. For more information, see ATF Ruling 2010-6 at: http://www.atf.gov/regulations-rulings/rulings/atf-rulings/atf-ruling-2010-6.pdf.

 

[kenny53]

Tailgator, Just wondering if there is any open land near you? I was thinking if I ran across this problem I would grab my guns and head for the desert. We spend the day blasting away and never see another human. I don't know how federal or state land use is in Florida but here in the Beehive state we have 10's of thousands of square miles of open land. Side note we pick up our trash after we are done, Hope you find a answer for your problem before the young lady arrives,

 

[Frank Ettin]

...if I ran across this problem I would grab my guns and head for the desert....

It’s still illegal for a prohibited person to have access to a gun, and whoever gives the prohibited person access is still guilty of aiding and abetting. Being out in the wilds won’t make anyone less of a criminal. It just decreases the chances of getting caught.

Not getting caught committing a crime is not the same as being legal. On TFL it is never acceptable to condone or suggest ways of getting away with a crime as a strategy for dealing with an in convenient law.

 

[kenny53]

To be honest I didn't think about the legality of the situation. I was locked on to shooting. I would check with the state attorney generals office or BATF for an answer. I would think they could answer the question better then guys hiding behind a keyboard.

 

[Aguila Blanca]

To be honest I didn't think about the legality of the situation. I was locked on to shooting. I would check with the state attorney generals office or BATF for an answer. I would think they could answer the question better then guys hiding behind a keyboard.

State attorneys general don't answer questions for the populace, they exist to answer questions for the state government. Since this is a federal law, state attorneys general aren't authorized to interpret it in any case.

The BATFE has already answered the question. Frank provided some links. I provided some links, in post #26. All you have to do is click the links to see what the BATFE has already said on the subject.

 

[TailGator]

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 ...

The range checked IDs, and hers, of course, was a Belgian passport and, I believe, a EU driver license. The range we used before didn't check IDs, probably because I am a regular.

Some of the discussion seems to be moving towards more permanent transfer of firearms, but if I correctly understand those who are familiar with the statute and case law, even transferring a firearm for a few minutes at a range or shooting out in an un-populated area would be illegal. I probably should shut up on the subject until the statue of limitations expires, because it may have been illegal for me to have taken her shooting on her prior trips, too, since I am the one who let her use my pistols.

 

[Frank Ettin]

....To the BATFE, this means the person is in the state with the intention of making that state their home. By definition, a European who is in the United States for a week or three as a tourist or a personal house guest is not here with the intention of making the U.S. their home. Thus, the VWP "loophole" looked good initially, but when you actually read the supporting documentation, it doesn't appear to offer any relief after all.....

You raise an important point. Even a non-prohibited person, like a foreign tourist visiting under the Visa Waiver Program or a foreign national visiting on a nonimmigrant visa but having a hunting license, must still comply with all other applicable laws, including state and federal laws dealing with the acquisition and/or possession of firearms. So a visiting foreign national, even if he falls within an exception to the bar of 18 USC 922(g)(5) won't be able to buy, or receive a gift of, a gun.

However, all is not necessarily lost. One will need to take a close look at other federal and state laws.

For example, 18 USC 922(a)(5):

(a) It shall be unlawful—
...

(5) for any person ... to transfer, sell, trade, give, transport, or deliver any firearm to any person ...who the transferor knows or has reasonable cause to believe does not reside in ... the State in which the transferor resides; except that this paragraph shall not apply to

(A)....

(B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;...​

So if a visiting foreign national may lawfully possess a gun, I can take him target shooting and load him a gun to use. A hunting guide could rent a visiting foreign national with a hunting license a gun to use on a guided hunt.

State laws could make things trickier. For example, in California I can only loan a gun to someone who is not a member of my family if he uses it in my presence. But that would still let me take a buddy visiting on a Visa Waiver to the range for some target practice.

 

[shuswapbc]

Mr. Ettin is absolutely correct. It does not natter what we think the statute says. It's what the courts say that counts (case law).

It's even possible, and somewhat common for two or more Federal Appeal Courts
to render different (conflicting) interpretations of the same statute. Thus a statute could have one meaning in one judicial circuit and a complete opposite meaning in another judicial circuit.

Such conflicts often go to the Supreme Court to resolve the conflict.