Federal law requires gun dealers to have a federal license to sell firearms and to follow certain procedures before selling guns. Among other things, dealers must verify the buyer's identity and run a background check, and they can typically sell only to those who show up in person. And although people can buy guns on the internet from a licensed dealer, the guns can't be shipped to the buyers directly. They must be sent to a licensed dealer where the buyer can fill out the paperwork, pass a background check, and take possession of the gun. These rules are devised to keep guns out of the hands of people who aren't allowed to have them—for example, people with felony convictions or who are addicted to drugs, and those classified as mentally ill. (See Can someone possess a gun after a criminal conviction?) The rules also help authorities trace guns used in crimes.
But Congress hasn't heavily regulated the "secondary" gun market, meaning that with some exceptions, federal law doesn't stop people from giving guns as gifts or reselling them, even without a background check for the buyer.
On the federal form that must be completed when buying a gun from a licensed gun dealer, buyers must indicate whether they are "actual" buyers of the guns they want to purchase. If someone isn't an actual buyer, the dealer can't sell that person a gun. Falsely claiming to be an actual buyer is a crime and can result in a felony conviction.
But under federal law, it's still possible to buy a gun from a licensed dealer that's a gift: A person who's buying someone else a gift is considered an "actual buyer" so long as the gift is "bona fide," meaning that it's truly a gift, and not something else.
A gift is not "bona fide" if the person receiving it provided money, services, or something of value for the gift. Additionally, a gun is not a bona fide gift if the person receiving it is legally prohibited from possessing it (due to a felony conviction, for example), and the purchaser knows or should know this.
Buying a gun for someone else when that purchase is not a bona fide gift is known as a "straw purchase," and it's a crime.
Straw purchases often occur because convicted felons who can't have guns want them for further criminal activity, and the people buying guns for them know they can't legally possess them. But sometimes, straw purchases result from good intentions. A well-meaning straw purchase, however, is still a crime:
Example: Ahmed, a retired police officer, gets a discount on guns, and offers to get his neighbor Shelly a handgun so she can get the discount. After Shelly gives him money to buy the gun, Ahmed purchases a handgun and indicates on the required form that he is the actual buyer. This is illegal because Shelly paid for the gun, so it wasn't a bona fide gift.
Example: After a spike in neighborhood burglaries, Carter buys his mother a gun as a gift, wanting nothing in return but peace of mind that she'll be safe. Carter knows his mother was once convicted of felony drug possession and can't own a gun, but he thinks it's not a big deal because the conviction was so long ago and drug laws aren't as strict these days. Carter's purchase of the gun is illegal because he knows his mother can't legally have a gun.
Federal law imposes few restrictions on the sale or transfer of guns between unlicensed parties. These transactions are commonly known as the "secondary market." With some exceptions, Congress has left this market mostly unregulated to focus its gun control efforts on licensed dealers, who, unlike private parties, sell large numbers of guns.
Under federal law, private gun sales between unlicensed people are legal so long as (1) the buyer lives in the same state as the seller, and (2) the seller doesn't know (or have reason to believe) that the buyer is prohibited from having a gun. Federal law requires no background checks for these private, intrastate transactions, but many states do. (See section below on state regulations). If the buyer (or person receiving the gun as a gift) lives in another state, the gun must be sent to a federally licensed dealer in the buyer's state, where the buyer will have to undergo a background check and fill out the forms necessary to take ownership. Failure to follow these rules can result in criminal charges.
Private gun sales on the secondary market are prohibited when the seller is "in the business" of dealing in firearms, because such sellers must be federally licensed and follow regulations that apply to licensed dealers. Someone who repeatedly makes a profit selling guns that are not part of a personal collection is probably in the business of dealing firearms; doing so without a license is a crime.
Many states impose little to no restrictions on gun transfers beyond what is prohibited under federal law, but some states have additional limitations. For example, California doesn't allow transfers between two unlicensed parties; the sale (or gift) must be conducted through a licensed dealer, which requires a background check. A number of other states allow private transfers, but still require background checks. Many states also impose age restrictions that prohibit transfers to people under 21 or 18.
Before selling or gifting a gun to anyone, it's important to know the laws of your state and the state of the person receiving the gun so you don't inadvertently break the law.
Anytime you're facing a charge for unlawful gun possession or sales, or want to know whether a state's laws allow you to sell or give a gun as a gift, you should talk to an experienced criminal defense lawyer in your area. The laws about weapons and the right to sell and buy them are often complicated and can change rapidly with new legislation or court rulings. Violations of gun sales laws can result in years in prison. An experienced attorney can advise you about your rights and ensure you're protected.
(18 U.S.C. §§ 922, 924.)