Final say on the C&R FFL and SB 941 in Oregon

[bolus]

I finally got a reply from Senator Betsy Johnson. She asked the legislative counsel (lawyers who work for the legislator determining legal aspects of laws) about the C&R. Here is their response.

in summary: The license is now useless.



"You have asked our office about the application of the criminal background check requirement in section 2 of Senate Bill 941 (chapter 50, Oregon Laws 2015, soon to be codified as ORS 166.435) to Curios and Relics federal firearms licensees. I believe the specific license you are asking about is the collector license referenced in 18 U.S.C. §923(b).


In interpreting the meaning of statutes, courts discern the legislative intent by looking first to the text and context of the statute and any relevant legislative history. State v. Gaines, 346 Or. 160, 171-172 (2009). If, after a review of the text, context and legislative history, the court concludes that the meaning of the statute is ambiguous, "the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty." Gaines at 172, quoting PGE v. Bureau of Labor and Industries, 317 Or. 606, 612 (1993).


Looking at the text of ORS 166.435, the criminal background check requirement applies to all persons except those licensed as dealers, importers or manufacturers under 18 U.S.C. §923, unless some other exception applies. This is because under ORS 166.435 (1)(b) and (c) (2015 edition), persons with those specified licenses are excluded from the definition of "transferee" and "transferor." Collector licenses are not included in the exemption.


The legislative history seems to support this conclusion. During the 2015 session there were amendments drafted to SB 941 that proposed adding the term "collector" to the list of licenses that would exempt a person from the background check requirement (see the A13 and A24 amendments to the A-Engrossed bill, available on OLIS). The resulting definitions of "transferee" and "transferor" would have read "a person who is not a gun dealer or licensed as a collector, manufacturer or importer under 18 U.S.C. 923…." However, these amendments were not adopted and as a result the word "collector" was never added to SB 941.


Finally, if a court needed further clarification when interpreting ORS 166.435, the court could consider the maxim of statutory constructionexpressio unius est exclusio alterius. Under this maxim, if certain licenses exempt from the criminal background check are expressly mentioned, this implies a legislative intent to exclude other licenses not mentioned.


Therefore, we believe a court would find that the background check requirement in section 2 of SB 941 (ORS 166.435) does apply to persons with Curios and Relics collector federal firearm licenses."


The senator said we could probably work toward an exemption added in the 2017 session.

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[etrain16]

I'd give a "like" to the above post, but just can't bring myself to give anything positive to these folks or what they've done. Certainly not surprised, and also certainly confirms the need to stop using the C&R at this time.

Ba$tards owe me my money back on a license I never got to use. I also want compensation for my time and efforts in applying for that license.

I wonder, if an Oregon resident applied for a C&R today, if the BATF would approve that application?

@bolus, thanks for staying on top of these people and pushing them to at least give us a real answer. Sorry to say it's not the one we hoped for. I won't be holding my breath on that exemption.

 

[308]

So Aimsurplus and everyone else is supposed to know they cannot ship to Oregon C&R holders?

 

[bolus]

So Aimsurplus and everyone else is supposed to know they cannot ship to Oregon C&R holders?

it is legal for them to ship it to you (that's federal, and still allowed under C&R, which is why the ATF really does not care), What is illegal is for you to accept the firearm without a background check (that's state law).

Im sure there is a clause in their sales agreement that says you need to know your state laws.

 

[Mephistopheles]

I've sent a couple of SKS's out of State with my C&R. Still good for something.

 

[SHPD_Retired]

You have to give it to Betsy. She is a great representative of the people.

 

[OcelotZ3]

What a bunch of jerks. I was told that they never discussed collectors during deliberations. Apparently the people who said that were either lying or asleep at the time.

 

[bolus]

What a bunch of jerks. I was told that they never discussed collectors during deliberations. Apparently the people who said that were either lying or asleep at the time.

From Hayward (my lying rep) herself on March 17th, 2015:

"I checked with Senator's office who is the chief sponsor of the bill. At this point the bill is still in the process of being drafted and they are considering various exemptions. They are aware of the curio and relic federal licenses and are discussing it. "

I knew this would happen and I was trying to get it exempted before the fill was drafted.

They left it out on purpose

 

[fd15k]

There are some Interstate Commerce caveats regarding this. Many of these regulations won't apply if you physically travel to acquire C&R firearms in another state. Even notorious 10 day waiting period in California doesn't apply to licensees from Oregon acquiring C&R firearms. This is a fairly new topic for us in Oregon, but it's a pretty beaten path for licensees in California who are not allowed to receive C&R firearms over the mail. It used to be handguns only, but in 2014 they extended that to long guns as well. Regardless of state laws, licensees from California travel to other states all the time and bring C&R firearms back without any issues.

 

[OcelotZ3]

A pretty minor advantage. I don't get out of state much that isn't to another country so it's a pretty moot point for me.

 

[Jim Colvill]

From Hayward (my lying rep) herself on March 17th, 2015:

"I checked with Senator's office who is the chief sponsor of the bill. At this point the bill is still in the process of being drafted and they are considering various exemptions. They are aware of the curio and relic federal licenses and are discussing it. "

I knew this would happen and I was trying to get it exempted before the fill was drafted.

They left it out on purpose

You got a response from her?! All the mail I sent her and Ken Ham never elicited a peep. Thanks for staying on this, Bolus. My C&R expires in April and I think I just may let it go since it's worthless.

 

[etrain16]

There are some Interstate Commerce caveats regarding this. Many of these regulations won't apply if you physically travel to acquire C&R firearms in another state. Even notorious 10 day waiting period in California doesn't apply to licensees from Oregon acquiring C&R firearms. This is a fairly new topic for us in Oregon, but it's a pretty beaten path for licensees in California who are not allowed to receive C&R firearms over the mail. It used to be handguns only, but in 2014 they extended that to long guns as well. Regardless of state laws, licensees from California travel to other states all the time and bring C&R firearms back without any issues.

So, would that mean an Oregon C&R holder could legally purchase a C&R in Vancouver, WA, without a BGC? Does WA have any restrictions on the C&R like Oregon does?

 

[fd15k]

So, would that mean an Oregon C&R holder could legally purchase a C&R in Vancouver, WA, without a BGC? Does WA have any restrictions on the C&R like Oregon does?

The best course of action is really to give a call to the ATF field office and ask them that question. Because you know, I am
not a lawyer and my word is mostly worthless. Having said that, Feds do exempt C&R licensees from NICS requirements:

https://www.atf.gov/firearms/qa/are...nsed-collectors-subject-nics-background-check

And RCW provides a high-level exemption for the cases where federal law kicks in:

All firearm sales or transfers, in whole or part in this state including without limitation a sale or transfer where either the purchaser or seller or transferee or transferor is in Washington, shall be subject to background checks unless specifically exempted by state or federal law.

There might be more conflicting sections further in the RCW, but we're supposed to be shielded from them due to Interstate Commerce (when physically out of state), and ATF knows all about it.

 

[RLS]

So they will look at text and context of the statute for C&R FFL being valid or not because of this crap law, But SHALL NOT BE INFRINGED means nothing. nice

 

[wired]

Them believing what a court will do and what a court will do may be two different things.

Wonder how they feel about firearms transfers into an NFA trust by a trustee?

 

[Gaucho Gringo]

So, would that mean an Oregon C&R holder could legally purchase a C&R in Vancouver, WA, without a BGC? Does WA have any restrictions on the C&R like Oregon does?

 

[Gaucho Gringo]

It is the same situation in WA.

 

[bearnut]

Under current Oregon law, I believe Curio & Relics License sales offer a very nice way to make a generous after-tax donation to ATF.

 

[W7REE]

I finally got a reply from Senator Betsy Johnson. She asked the legislative counsel (lawyers who work for the legislator determining legal aspects of laws) about the C&R. Here is their response.

in summary: The license is now useless.



"You have asked our office about the application of the criminal background check requirement in section 2 of Senate Bill 941 (chapter 50, Oregon Laws 2015, soon to be codified as ORS 166.435) to Curios and Relics federal firearms licensees. I believe the specific license you are asking about is the collector license referenced in 18 U.S.C. §923(b).


In interpreting the meaning of statutes, courts discern the legislative intent by looking first to the text and context of the statute and any relevant legislative history. State v. Gaines, 346 Or. 160, 171-172 (2009). If, after a review of the text, context and legislative history, the court concludes that the meaning of the statute is ambiguous, "the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty." Gaines at 172, quoting PGE v. Bureau of Labor and Industries, 317 Or. 606, 612 (1993).


Looking at the text of ORS 166.435, the criminal background check requirement applies to all persons except those licensed as dealers, importers or manufacturers under 18 U.S.C. §923, unless some other exception applies. This is because under ORS 166.435 (1)(b) and (c) (2015 edition), persons with those specified licenses are excluded from the definition of "transferee" and "transferor." Collector licenses are not included in the exemption.


The legislative history seems to support this conclusion. During the 2015 session there were amendments drafted to SB 941 that proposed adding the term "collector" to the list of licenses that would exempt a person from the background check requirement (see the A13 and A24 amendments to the A-Engrossed bill, available on OLIS). The resulting definitions of "transferee" and "transferor" would have read "a person who is not a gun dealer or licensed as a collector, manufacturer or importer under 18 U.S.C. 923…." However, these amendments were not adopted and as a result the word "collector" was never added to SB 941.


Finally, if a court needed further clarification when interpreting ORS 166.435, the court could consider the maxim of statutory constructionexpressio unius est exclusio alterius. Under this maxim, if certain licenses exempt from the criminal background check are expressly mentioned, this implies a legislative intent to exclude other licenses not mentioned.


Therefore, we believe a court would find that the background check requirement in section 2 of SB 941 (ORS 166.435) does apply to persons with Curios and Relics collector federal firearm licenses."


The senator said we could probably work toward an exemption added in the 2017 session.

Legislative counsel has apparently ignored Article 6 of the U.S. Constitution in determining that Federal FFL C&R licenses are not an exemption to Oregon State laws affecting background checks. The Supremacy Clause applies to this issue and obviates the need for a background check when all other considerations are properly met. I am confident that a Federal District Court judge would agree with this legal analysis.

 

[solv3nt]

Legislative counsel has apparently ignored Article 6 of the U.S. Constitution in determining that Federal FFL C&R licenses are not an exemption to Oregon State laws affecting background checks. The Supremacy Clause applies to this issue and obviates the need for a background check when all other considerations are properly met. I am confident that a Federal District Court judge would agree with this legal analysis.