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Gun Reports - News

ATF Revises Alien Firearms Possession Rules

(GunReports.com) -- ATF last week published a letter to all FFLs explaining that the Department of Justice's Office of Legal Counsel determined that ATF's interpretation of which aliens present in the U.S. are prohibited from purchasing, receiving or possessing a firearm under the Gun Control Act (GCA) is overly broad.

The GCA's prohibition only applies to aliens admitted under a nonimmigrant visa. Some nonimmigrant aliens, including most Canadian visitors, as well as aliens admitted under the Visa Waiver program, are not prohibited and may lawfully purchase firearms. However, ATF cautions FFLs to continue using the current form and abide by current regulations, which remain the law, while ATF expeditiously works to amend the regulations and form.

The exact language of the letter appears below:

Since 1998, the Gun Control Act (GCA) has prohibited certain nonimmigrant aliens from receiving or possessingfirearmsorammunitionthathaveaconnectiontointerstatecommerce. See18U.S.C.§ 922(g)(5)(B). In a regulation published on February 5, 2002, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) interpreted this restriction to apply to all aliens present in the United States in a nonimmigrant classification as defined by section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(15), unless they qualified for one of the exceptions contained in 18 U.S.C. § 922(y)(2). See 27 C.F.R. § 478.11. ATF’s Firearms Transaction Record Part 1 – Over-the-Counter (Form 4473) reflects this interpretation of the GCA.

Recently, the Office of Legal Counsel, U.S. Department of Justice, (OLC) has informed ATF that its interpretation of the scope of persons prohibited by section 922(g)(5)(B) is overly broad. That is, OLC determined that the prohibition contained in section 922(g)(5)(B) does not extend to all nonimmigrant aliens present in the United States, but only extends to aliens who were admitted to the United States under a nonimmigrant visa. Some nonimmigrant aliens, including most Canadian visitors, as well as aliens admitted under the Visa Waiver program, are allowed to be present in the United States without a nonimmigrant visa. Those aliens, and others who are lawfully in the country without a visa, are not within the scope of the GCA prohibition. This interpretation of the scope of persons prohibited by section 922(g)(5)(B) extends to the scope of transfers of firearms by sellers (including Federal firearms licensees) under 922(d)(5)(B). ATF is in the process of amending its regulations and forms to conform with OLC’s determination concerning the proper scope of the GCA.

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Click here to download the entire letter.

Reader Comments

If I read this correctly, this is a loosening of prohibitions on legal immigrants gun rights, right? I think that is a good thing.

Comment by: david b | December 15, 2011

How 'bout loosening the rules to the words in the 2nd Amendment?

Comment by: Mister E | December 15, 2011

Well, in keeping with the current administration's preferential treatment of immigrants.....legal or illegal.....this is no great surprise. Wouldn't it be nice if they'd ease up on all of us US citizens?

Comment by: canovack | December 15, 2011

I live in Mississippi (US born citizen). However, I can not go to Alabama (or any other state) and purchase a firearm directly. So it sounds like I should move to Canada and then I could buy a firearm any where in the USA. ??? Did I mis-read this?

Comment by: JAJones1961 | December 21, 2011