Required Reading, Then and Now

Jefferson LCBTwo things interest me about the two quotes below: First, that original material was written in 1764–in Italy–by Cesare Beccaria in his treatise On Crimes and Punishments. Yes, I know. It sounds like something right out of an NRA press release in response to yet another move by the [name your president] to implement by executive order more “common sense” restrictions on firearms. But no, Beccaria was a political philosopher of some renown, whose work many of the Founders thought important enough to use as source material for the founding documents of this nation. Jefferson, for one, copied the passage below into his Legal Commonplace Book, a sort of journal the author of the Declaration of Independence used to keep track of important ideas–I assume his and of others. Jefferson entered the Beccaria quote into his journal in the original Italian. The first quote below is the English translation of Italian, which appeared in in 1809 and which Jefferson owned.

That brings me to the second interesting thing: The two quotes are essentially the same quote from Beccaria, the first an 1809 translation, the second a 1963 translation. You can find the second all over the Internet. (I originally found it in a book I’m reading, That Every Man Be Armed by Stephen P. Holbrook, an excellent history of the Second Amendment, going all the way back to the Greeks and Romans.)

So you can easily notice the differences, I’ve color keyed the corresponding words in each translation. (And yes, I realize that the second translation has an ellipsis.) I prefer the second, newer, and I’d say more elegant translation. Whatever your preference, Becarria offers up some good food for thought, even today.

“A principal source of errors and injustice are false ideas of utility. For example: that legislator has false ideas of utility who considers particular more than general conveniencies, who had rather command the sentiments of mankind than excite them, who dares say to reason, ‘Be thou a slave;’ who would sacrifice a thousand real advantages to the fear of an imaginary or trifling inconvenience; who would deprive men of the use of fire for fear of their being burnt, and of water for fear of their being drowned; and who knows of no means of preventing evil but by destroying it.

The laws of this nature are those which forbid to wear arms, disarming those only who are not disposed to commit the crime which the laws mean to prevent. Can it be supposed, that those who have the courage to violate the most sacred laws of humanity, and the most important of the code, will respect the less considerable and arbitrary injunctions, the violation of which is so easy, and of so little comparative importance? Does not the execution of this law deprive the subject of that personal liberty, so dear to mankind and to the wise legislator? and does it not subject the innocent to all the disagreeable circumstances that should only fall on the guilty? It certainly makes the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack unarmed than armed persons.”

Though you can find the following translation of the quote by Paolucci in a number of places, I found it here.

False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes….Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.

For those who would prefer practicing their Italian, here’s the quote in Italian, as it appeared in Jefferson’s Legal Commonplace Book:

“Falsa idea di utilità è quella, che sacrifica mille vantaggi reali, per un inconveniente o immaginario, o di poca conseguenza, che toglierebbe agli uomini il fuoco perchè incendia, e l’acqua perchè annega; che non ripara ai mali, che col distruggere. Le leggi, che proibiscono di portar le armi, sono leggi di tal natura; esse non disarmano che i non inclinati, nè determinati ai delitti, mentre coloro che hanno il coraggio di poter violare le leggi più sacre della umanità è le più importanti del codice, come rispetteranno le minori, e le puramente arbitrarie? Queste peggiorano la condizione degli assaliti migliorando quella degli assalitori, non iscemano gli omicidi, ma gli accrescono, perchè è maggiore la confidenza nell’assalire i disarmati, che gli armati. Queste si chiaman leggi, non preventrici, ma paurose dei delitti, che nascono dalla tumultuosa impressione di alcuni fatti particolari, non dalla ragionata meditazione degl’inconvenienti, ed avvantaggi di un decreto universale.”

Shipping Firearms: It’s Complicated

What follows is an attempt to clarify a confusing area of firearms law–the issue of private, unlicensed persons mailing firearms. There’s a lot of misinformation out there about whether an unlicensed person–that is, a person without a Federal Firearms License or FFL–can mail or ship firearms to another unlicensed person. Before we attempt to cut through the confusion, we offer this little caveat: the discussion below does not take into account state firearms laws, which vary. What follows concerns federal law.

So, can an unlicensed person mail or ship a firearm to another unlicensed person without an FFL as an intermediary?

Short Answer

Legally, yes, if intrastate. Practically . . . it’s complicated. Fed-ex

Longer Answer

Legally, an unlicensed person in, say, Wyoming, can ship a firearm to another unlicensed resident of Wyoming, so long as the transferor “does not know or have reasonable cause to believe the transferee is prohibited from receiving or possessing firearms under federal law” (B1 and B7, pg. 197, ATF Federal Firearms Regulations Reference Guide, 2014 (Reference Guide); see also the citations to the USC and the CFR at B1 and B7). In other words, unlicensed persons or non-FFLs can legally ship firearms INTRASTATE to other non-FFLs. However, if that same unlicensed transferor wanted to ship that same firearm to someone in Utah or Florida–that is, INTERSTATE–s/he would have to ship the firearm to an FFL in Utah or Florida. The law and commentary I’ve cited above is pretty clear on this point–though apparently not to everybody.

Where things get confusing is on the practical side. Practically speaking, if we’re talking about shotguns or rifles–long guns, if you will–a Wyoming resident can mail to a Wyoming resident without an FFL. If it’s a handgun, though, that unlicensed person in Wyoming is probably going to have to ship the gun to an FFL in Wyoming as well–or have a face-to-face meet up with the buyer/transferee–because, as I said, it’s complicated.

You see, there’s the USPS and then there are common carriers like Fed-Ex who service the public at large and contract carriers like trucking companies who service a short list of clients. The Reference Guide says common or contract carriers can transport handguns; the USPS can’t.USPS

Title 18 USC §1715, the law governing the US Postal Service and firearms, is quite explicit. Except in very limited circumstances,

Pistols, revolvers, and other firearms capable of being concealed on the person are nonmailable and shall not be deposited in or carried by the mails or delivered by any officer or employee of the Postal Service.  (Emphasis added)

However, our unlicensed person can mail shotguns and rifles to another unlicensed person in the same state via the USPS, subject to certain requirements. Both the ATF (see B6, pg. 197 of the Reference Guide cited above) and the USPS give thumbs up to the process. And handguns? Well, the AFT says that “a common or contract carrier must be used to ship a handgun” whether it’s INTRASTATE to an unlicensed person or INTERSTATE to an FFL (B7, pg. 197 Reference Guide).

Unfortunately (or fortunately, depending on your point of view) at least the large common carriers are not so willing participants in the shipment of firearms–handguns or long guns. Both Fed-Ex and UPS clearly state that they will only ship if an FFL is at the receiving end, regardless of whether the shipment is INTRASTATE or INTERSTATE.UPS

Of course, Fed-Ex and UPS are not the only common carriers around. Check your local listings. If you find another, probably smaller or local carrier, they may allow an unlicensed person to ship both handguns and long guns to an unlicensed person who lives in the same state without the FFL intermediary. The law allows them to that. The question is do their internal policies? You’re going to have to ask around.

Contract carriers, trucking companies and the like? That’s a concern for another day.

One more point worth noting: Transfers between unlicensed persons that go through an FFL are subject to background checks–with few exceptions. Thus, given that

  • at least the larger common carriers require that all firearm shipments–intra and interstate–between unlicensed persons go through an FFL,
  • the USPS doesn’t ship handguns at all and requires interstate shipments go through an FFL,
  • Federal law requires that all interstate transfers between unlicensed persons go though an FFL,
  • even simple transfers–no money exchanged–between residents of different states must go through an FFL, and
  • at least 18 states and the District of Columbia require all or most intrastate transfers between unlicensed persons go through an FFL,

few firearms transfers legally escape background checks. And that includes online purchases through online outlets like Gunbroker.com that cater to private sellers. In fact, as explained in the Reference Guide:

An unlicensed person who is not prohibited from receiving or possessing firearms may purchase a rearm from an out–of–State source, provided the transfer takes place through a Federal rearms licensee in his or her State of residence. (B3, pg. 197)

Yes, some do escape and fall into the wrong hands. The law is not the only ass, after all.

To this end–the end of keeping firearms out of the hands of asses–the ATF encourages federal firearms licencees (FFLs) to work with private sellers to facilitate background checks on private buyers (see page 175-176 of the Reference Guide for more). Not a bad idea, especially if you–the private seller–are worried about bona fides of a potential buyer. Could save you and someone else a lot of heartache.

How about shipping to yourself? Well, as they say, that’s different. Federal law–remember, we’re talking only about Federal law–says that you can ship interstate to yourself for your own use to engage “in hunting or other lawful activity,” but according to question B8, pg. 198 of the Reference Guide:

The package should be addressed to the owner 1in the care of’ the out–of–State resident. Upon reaching its destination, persons other than the owner may not open the package or take possession of the firearm. (emphasis added)

Likewise, a gun owner moving from one state to another may “may transport or ship the firearm interstate” and if using a moving company, “must notify the mover that firearms are being transported” (B9, pg. 198).

And NFA firearms? Do the same rules apply? Of course, if any of the firearms you want to ship or transport are of the NFA variety, then you “must have prior approval from ATF.” The prior approval process does not apply to suppressors/silencers, by the way (CFR §478.28).

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