For the last several years, “Black Friday” gun sales have hit all-time highs, according to statistics from the FBI’s National Instant Background Check System (“NICS”) checks. This means licensed retailers are selling a lot of firearms. Well, this year was no different. The trend continued and the FBI hit an all-time high record of 203,000 NICS checks. Anecdotally, this must mean that a part of Santa’s Holiday gift list in Indiana is purchasing and giving a gun as a gift. But, is this lawful? What are the other legal issues surrounding giving guns as gifts? This is the focus of this blog post.
First, anyone giving a firearm as a gift will have to complete the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATFE”) ATFE 4473 form and undergo a NICS check (and like all Holiday gifts, pay for it). From this point, if the firearm is given as a true gift, meaning, in part, there is no money involved, this is lawful. This is clarified in the instructions to the ATFE 4473 form, presupposing the person receiving this gift is not a “prohibited person” or otherwise unable to have firearms or ammunition under state or federal law.1
Second, the gifted firearm is still “papered” to the person giving the gift. While not required in Indiana, the best practice is to have Santa and his recipient to then go to and pay a Federal Firearms Licensee to transfer this to the gift to the recipient to avoid any future issues, such as if the firearm is lost, stolen or used in a crime. In such a case, the ATFE or other law enforcement will likely contact the last person to complete a 4473 form on this firearm from the Federal Firearms License’s (“FFL”) records.
Third, a gun given as a “gift”, well, is still a firearm and should be treated as such. This gift is not a toy to play with during the Holidays, even right out of the box. Treat it that way! The Cardinal Rule—all guns are always loaded--even unloaded guns, and with this mindset, should always be pointed in a safe direction in case it goes “boom” instead of “click”. A great gift to go with a firearm is a training course covering law and proper use of the firearm. Remember, if the firearm discharges, a host of crimes can be (and are often) charged, ranging from criminal recklessness to more serious felonies, if someone is injured or killed.
We hope this blog post is helpful in providing general information about giving firearms as gifts and the surrounding rather serious considerations. Follow this to have a happy holiday where firearms are involved as gifts in Indiana. This blog post is written by attorneys at Ciyou & Dixon, P.C., who handle firearms matters, cases and criminal defense across the state. It is not intended as legal advice or a solicitation for services. It is an advertisement.
- This is clarified in the instructions on the ATFE 4473 form for question 11.a. However, if money is exchanged for this “gift”, it is a violation of the Gun Control Act of 1968 and a crime (a felony). In addition, if the firearm is given as a “gift” to someone prohibited under state or federal law, this is referred to as a “straw purchase” and is a criminal act (a felony). So “Santa” needs to be sure of the law to avoid committing a serious felony.