State of Residence Requirements for Firearms Transfers ( 2012 )

State of Residence Requirements for Firearms Transfers
Section 922(b)(3) of title 18, which forbids federal firearms licensees from selling or
delivering “any firearm to any person who the licensee knows or has reasonable cause
to believe does not reside in . . . the State in which the licensee’s place of business is
located,” cannot be interpreted to define “reside in . . . the State” differently for citi-
zens and aliens.
January 30, 2012
MEMORANDUM OPINION FOR THE CHIEF COUNSEL
BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES
The Gun Control Act of 1968 (“GCA” or “the Act”) contains a series of
provisions that regulate transactions involving firearms and ammunition.
18 U.S.C. § 922 (2006 & Supp. IV 2010). 1 One such provision forbids
federal firearms licensees (“FFLs”)—persons who are licensed under
federal law to import, manufacture, or deal in firearms—from selling or
delivering “any firearm to any person who the licensee knows or has
reasonable cause to believe does not reside in . . . the State in which the
licensee’s place of business is located.” Id. § 922(b)(3). In a proposed
final rule interpreting this provision, the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”) contemplates defining the term “reside
in . . . the State” differently for citizens and aliens, as it has since 1968.
See Memorandum for the Attorney General from Kenneth E. Melson,
Deputy Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Re: Final Rule Concerning Residency Requirements for Persons Acquir-
ing Firearms at 2 (Apr. 30, 2010) (describing proposed final rule).
As part of our routine legal review of rules requiring the Attorney Gen-
eral’s approval, this Office advised that the proposed definition was
inconsistent with section 922(b)(3) of the Act. That section makes no
distinction between citizens and aliens; it simply restricts the sale or
delivery of firearms to “any person” who “does not reside in” the state
1 Several of these provisions of the GCA, including 18 U.S.C. § 922(b)(3), were origi-
nally enacted several months before the enactment of the GCA, as part of title IV of the
Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, § 901(a)(1), 82
Stat. 197, 225–35. Where appropriate, we accordingly refer to legislative findings that
Congress adopted in enacting the Omnibus Crime Control and Safe Streets Act. See infra
pp. 57–58.
49
36 Op. O.L.C. 49 (2012)
where the FFL is located. 18 U.S.C. § 922(b)(3) (2006). The Supreme
Court has rejected interpretations of statutes that would “adopt a construc-
tion” attributing “different meanings to the same phrase in the same
sentence,” as the proposed final rule would do. See Reno v. Bossier Parish
Sch. Bd., 528 U.S. 320, 329 (2000). Here, it is particularly difficult to
justify an inference, without textual support, that state residency should be
defined differently for citizens and aliens, because elsewhere in the stat-
ute, Congress expressly addressed the treatment of certain categories of
aliens and enacted a special definition of state residency for a particular
category of persons (members of the military on active duty, see 18
U.S.C. § 921(b) (2006)). In light of these considerations, we advised that
section 922(b)(3) cannot be interpreted to define “reside in . . . the State”
differently for citizens and aliens. At your request, this opinion memorial-
izes and elaborates on our prior advice. See Memorandum for the Office
of Legal Counsel from Stephen R. Rubenstein, Chief Counsel, Bureau of
Alcohol, Tobacco, Firearms, and Explosives (Dec. 18, 2011) (“Opinion
Request”).
I.
The federal Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat.
1213 (codified at 18 U.S.C. §§ 921–931), sets out “a detailed federal
scheme” to govern “the distribution of firearms.” Printz v. United States,
521 U.S. 898, 902 (1997). The Act regulates FFLs directly and also lays
out a series of so-called “prohibitors” that define particular categories of
individuals prohibited from engaging in certain firearms transactions.
Section 922(b)(3) of the GCA imposes the limitation on FFLs at issue
here, providing in pertinent part:
It shall be unlawful for any licensed importer, licensed manufac-
turer, licensed dealer, or licensed collector to sell or deliver . . . any
firearm to any person who the licensee knows or has reasonable
cause to believe does not reside in (or if the person is a corporation
or other business entity, does not maintain a place of business in) the
State in which the licensee’s place of business is located[.] 2
2 Section 922(b)(3) exempts certain transfers of rifles and shotguns from this general
rule and provides that the rule “shall not apply to the loan or rental of a firearm to any
person for temporary use for lawful sporting purposes.”
50
State of Residence Requirements for Firearms Transfers
The Act defines “person” broadly to “include any individual, corporation,
company, association, firm, partnership, society, or joint stock company.”
18 U.S.C. § 921(a)(1) (2006). The Act does not define what it means for
such a person to “reside in . . . the State” as a general matter, but it does
contain one special rule with respect to state residency: a member of the
Armed Forces on active duty “is a resident of the State in which his per-
manent duty station is located” for purposes of the firearms provisions of
title 18. Id. §§ 922(b)(3), 921(b).
Since 1968, ATF has maintained regulations defining the term “State
of residence” (although that precise term does not appear in the GCA)
and requiring potential firearms buyers to establish their state of resi-
dence, in order to implement the general statutory provision establishing
that an FFL may not transact business with “any person” the FFL “knows
or has reasonable cause to believe does not reside in . . . the State” in
which the FFL is located. See Commerce in Firearms and Ammunition,
33 Fed. Reg. 18,555, 18,559 (Dec. 14, 1968) (defining “State of resi-
dence” for the first time); 27 C.F.R. § 478.11 (2011). These regulations
have always given “State of residence” one meaning for U.S. citizens and
another meaning for aliens. The definition of “State of residence” has
changed somewhat over the years, 3 but the regulations have consistently
required aliens to meet both the residency requirement that applies to
citizens and an additional requirement that they have resided in the state
“for a period of at least 90 days prior to the date of sale or delivery of a
firearm.” See, e.g., Commerce in Firearms and Ammunition, 33 Fed.
Reg. at 18,559; Residency Requirements for Persons Acquiring Firearms,
62 Fed. Reg. 19,442, 19,442 (Apr. 21, 1997); 27 C.F.R. § 478.11 (2011).
(We will refer to this additional requirement as the “90-day require-
ment.”) Consistent with this historical practice, the proposed final rule
would provide that a citizen “present in a State with the intention of
making a home in that State” would satisfy section 922(b)(3)’s require-
ment that he or she “reside in . . . the State” where the FFL is located, but
that an alien lawfully “present in a State with the intention of making a
home in that State” would not satisfy that statutory requirement until the
alien proved as well that he or she had resided in that state for a mini-
3 See infra note 4.
51
36 Op. O.L.C. 49 (2012)
mum of 90 days. 4 Residency Requirements for Persons Acquiring Fire-
arms at 21 (unpublished proposed rule, intended to be codified at 27
C.F.R. part 478).
In addition to laying out generally applicable restrictions, such as the
one set forth in section 922(b)(3), the GCA also expressly prohibits cer-
tain categories of persons from engaging in firearms transactions. As
relevant here, neither aliens “illegally or unlawfully in the United States,”
see 18 U.S.C. § 922(d)(5)(A) (2006); id. § 922(g)(5)(A), nor aliens who
have been “admitted to the United States under a nonimmigrant visa,” see
id. § 922(d)(5)(B); id. § 922(g)(5)(B), may ship, transport, possess, or
receive firearms or ammunition, with certain limited exceptions. 5 The
GCA does not otherwise bar aliens as a category from engaging in fire-
arms transactions; instead, aliens are subject to the same general regulato-
ry requirements as U.S. citizens. See generally United States v. Camacho,
528 F.2d 464, 468–69 (9th Cir. 1976) (rejecting appellant’s argument that
the GCA does not restrict gun sales to visiting aliens who do not reside in
any state, and stating: “An alien who has not established residence in the
state where the licensed dealer is located falls within the class of persons
to whom the dealer is not permitted to sell firearms under § 922(b)(3).”).
The question we address is whether the proposed final rule’s interpreta-
tion of section 922(b)(3) as authorizing different definitions of the term
“reside in . . . the State” for citizens and aliens is consistent with the
statutory scheme.
4 In 1968, and for many years afterwards, ATF defined “State of residence” to mean
“[t]he State in which an individual regularly resides, or maintains his home.” Commerce
in Firearms and Ammunition, 33 Fed. Reg. at 18,559. A 1997 interim final rule amended
then-existing regulations interpreting section 922(b)(3) to require a purchaser of firearms
to affirmatively declare his or her state of residence on the relevant ATF form and to
require aliens legally in the United States to show substantiating documentation, such as a
utility bill, to satisfy the 90-day rule. Opinion Request at 2–3. The proposed final rule
would maintain these amendments but also eliminate an existing provision that allows
aliens to establish residency by providing a letter from their embassy or consulate. We do
not address that proposed rule change in this opinion. We also do not address the re-
quirement that firearms purchasers affirmatively declare their “State of residence” on a
form provided by ATF.
5 Section 922(y)(2) lists various exceptions to the prohibitions applicable to nonimmi-
grant aliens admitted under a visa, and section 922(y)(3) sets out a waiver procedure for
aliens subject to the same prohibitions. See 18 U.S.C. § 922(y) (2006).
52
State of Residence Requirements for Firearms Transfers
II.
Based on the text of section 922(b)(3) and the overall statutory context,
we conclude that the phrase “reside in . . . the State” in section 922(b)(3)
cannot be interpreted differently for citizens and aliens and therefore may
not be construed to impose different substantive requirements when aliens
and citizens seek to obtain a firearm from an FFL.
The residency requirement in the text of section 922(b)(3) is estab-
lished with a single phrase, “reside in . . . the State,” that applies to all
“person[s].” More specifically, section 922(b)(3) provides that a covered
firearms transaction may not take place when “the [FFL] knows or has
reasonable cause to believe” that the “person” who would receive the
firearm “does not reside in . . . the State” where the FFL does business. 18
U.S.C. § 922(b)(3). The plain text of the statute thus appears to require
ATF to apply the same standard to determine whether “any person . . .
reside[s] in . . . the State,” regardless of the citizenship status of the pro-
spective buyer. See id.
The proposed final rule, however, would effectively adopt two different
definitions of “reside in . . . the State.” Citizens would be required to
show only an intent to make a home in the state in which they were pre-
sent, whereas aliens would be required to show that same intent and also
prove that they had been present in the state for 90 days. We recognize
that what it means to “reside” in a state may itself be susceptible to nu-
merous interpretations. See, e.g., Downs v. Comm’r, 166 F.2d 504, 508
(9th Cir. 1948); Assistant U.S. Attorneys—Residency Requirement, 3 Op.
O.L.C. 360, 361 (1979). But regardless of how that term is defined, the
plain text of section 922(b)(3) contemplates that the same definition will
apply to “any person,” citizen or alien, to whom an FFL seeks to sell or
deliver a firearm (with the exception of members of the Armed Forces on
active duty, to whom the Act expressly applies a different definition of
state residency, see supra p. 51).
Nothing in the concept of state residence, moreover, suggests that it is
appropriate to read a distinction between aliens and citizens into the
statute where no such distinction exists in the text. We are aware of no
background common-law definition of state residency, for example, that
would suggest that state residency should be defined differently for aliens
and citizens. Cf. Clackamas Gastroenterology Assocs. v. Wells, 538 U.S.
5336 Op. O.L.C. 49 (2012)
440 (2003) (observing that courts interpreting the statutory term “employ-
ee” look to its common-law meaning in different settings). 6
Supreme Court precedent squarely supports this reading of the plain
text of section 922(b)(3). In Clark v. Martinez, 543 U.S. 371 (2005), for
example, the Court made clear that a single undifferentiated statutory term
in section 241 of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1231(a)(6), must be given the same meaning in all of its potential appli-
cations. In Clark, the Court interpreted INA section 241(a)(6), which
authorizes the Attorney General to retain custody of aliens ordered re-
moved from the United States beyond the 90-day period established by
section 241(a)(1), see 8 U.S.C. § 1231(a)(1) (2000), and provides that
three different categories of aliens “may be detained beyond the removal
period.” 543 U.S. at 377 (quoting 8 U.S.C. § 1231(a)(6)) (internal quota-
tion marks omitted).
Four years earlier, in Zadvydas v. Davis, 533 U.S. 678 (2001), the
Court had construed section 241(a)(6) in a particular way, in order to
avoid a constitutional question. The Court held that the provision author-
ized the Executive Branch to detain one covered category of aliens—those
deportable on certain crime-related grounds—for “only as long as ‘rea-
sonably necessary’ to remove them from the country,” rather than indefi-
nitely, as the plain text of the statute might have suggested. Clark, 543
U.S. at 377 (quoting Zadvydas, 533 U.S. at 699). In light of Zadvydas, the
Clark Court subsequently held that the construction it had given to the
6 We examined the administrative record that accompanied ATF’s 1968 interpretation
of the state of residence requirement, but that record does not reveal a rationale behind the
decision to establish different state residency requirements for citizens and aliens. Shortly
after the GCA’s enactment in 1968, the Director of the Alcohol and Tobacco Tax Division
(which was then part of the Internal Revenue Service), issued a notice of proposed
rulemaking defining a number of terms, but not “State of residence.” See Commerce in
Firearms and Ammunition, 33 Fed. Reg. 16,285, 16,288 (proposed Nov. 6, 1968). That
definition first appeared in the final rule issued several weeks later, without elaboration.
See Commerce in Firearms and Ammunition, 33 Fed. Reg. at 18,559; see id. at 18,555
(“Immediately following the definition of ‘State’ there is inserted a new definition.”). We
recognize that ATF’s proposed definition is longstanding, but we do not think its “vin-
tage” can overcome the meaning required by the statute’s text. Cf. Judulang v. Holder,
132 S. Ct. 476, 488 (2011) (“vintage” is a “slender reed to support a significant govern-
ment policy”); Demarest v. Manspeaker, 498 U.S. 184, 190 (1991) (abrogating a
“longstanding administrative construction”—which the court below had noted dated back
to “at least the year 1900,” Demarest v. Manspeaker, 884 F.2d 1343, 1345 (10th Cir.
1989)—upon concluding that the agency’s construction was inconsistent with the statute).
54
State of Residence Requirements for Firearms Transfers
statutory phrase in Zadvydas also had to be applied to the inadmissible
aliens covered by section 241(a)(6), even assuming that there were sub-
stantial reasons to treat inadmissible aliens and deportable aliens differ-
ently with respect to detention, as the government had argued. Id. at 380.
The Court recognized that the constitutional concerns at issue in Zadvydas
were not implicated in the case of inadmissible aliens. Id. But, the Court
explained, “[t]he operative language of [the relevant statute], ‘may be
detained beyond the removal period,’ applies without differentiation to all
three categories of aliens that are its subject. To give these same words a
different meaning for each category would be to invent a statute rather
than interpret one.” Id. at 378.
Notably, the Court acknowledged that the text of INA section 241(a)(6)
was ambiguous and could have been validly interpreted to permit more
protracted detention for inadmissible aliens. Id. But the Court rejected the
notion that statutory ambiguity could justify two different simultaneous
constructions of the same ambiguous phrase depending on the category of
aliens to which the phrase applied:
As the Court in Zadvydas recognized, the statute can be construed
“literally” to authorize indefinite detention, or (as the Court ultimate-
ly held) it can be read to “suggest [less than] unlimited discretion” to
detain. It cannot, however, be interpreted to do both at the same
time.
Id. (citations omitted); see also id. at 379 (giving the text the interpreta-
tion found in Zadvydas “because the statutory text provides for no distinc-
tion between admitted and nonadmitted aliens”). The Court observed that
a contrary holding would establish “the dangerous principle that judges
can give the same statutory text different meanings in different cases.” Id.
at 386; see also Bossier Parish Sch. Bd., 528 U.S. at 329 (“As we have in
the past, we refuse to adopt a construction that would attribute different
meanings to the same phrase in the same sentence, depending on which
object it is modifying.”); Bankamerica Corp. v. United States, 462 U.S.
122, 129 (1983) (“[W]e reject as unreasonable the contention that Con-
gress intended the phrase ‘other than’ to mean one thing when applied to
‘banks’ and another thing as applied to ‘common carriers,’ where the
phrase ‘other than’ modifies both words in the same clause.”). 7
7 Since Clark, the Supreme Court has reaffirmed the basic principle of interpretation
on which it relied there. See United States v. Santos, 553 U.S. 507 (2008) (concluding that
55
36 Op. O.L.C. 49 (2012)
Clark thus supports our conclusion that the proposed rule is not con-
sistent with the statute, because the proposed rule would give the same
phrase—“reside in . . . the State”—different constructions for U.S. citi-
zens and aliens, even though no textual foundation for imposing a differ-
ent substantive rule on aliens exists.
Our reading of the text of section 922(b)(3) also finds support in other
provisions of the GCA, and in the legislative findings accompanying the
Act. In particular, as noted above, section 922(g)(5) prohibits certain
categories of aliens—those unlawfully present and those admitted under a
nonimmigrant visa—from shipping, transporting, possessing, and receiv-
ing firearms and ammunition, with certain exceptions. See also 18 U.S.C.
§ 922(d)(5) (2006) (making it unlawful for any person to sell or dispose of
firearms to unlawfully present aliens or aliens admitted under a nonimmi-
grant visa). This specific treatment of aliens elsewhere in section 922
counsels against inferring that Congress intended differential treatment of
citizens and aliens where there is no textual or other support for such an
inference.
Similarly, although the GCA does not define the phrase “reside . . . in
the State,” the Act’s definition section does create a unique state residen-
cy requirement for one class of persons. As noted above, section 921(b)
states that “a member of the Armed Forces on active duty is a resident of
the State in which his permanent duty station is located” for the purposes
the term “proceeds” in the federal money-laundering statute, 18 U.S.C. § 1956(a)(1)(A)(i)
(2006), means “profits” and not “receipts,” and that its meaning must be uniform across
contexts); compare id. at 525 (Stevens, J., concurring in the judgment) (concluding that
“proceeds” could mean “receipts” or “profits” depending on the context, suggesting that,
“[i]f Congress could have expressly defined the term ‘proceeds’ differently when applied
to different specified unlawful activities, it seems to me that judges filling the gap in a
statute with such a variety of applications may also do so, as long as they are conscien-
tiously endeavoring to carry out the intent of Congress”), with id. at 522 (Scalia, J.,
concurring in the judgment) (describing Justice Stevens’s approach as a form of “interpre-
tive contortion,” and contending that the Court had “forcefully rejected” that approach in
Clark), and id. at 532 (Alito, J., dissenting) (“I cannot agree with Justice Stevens’s
approach insofar as it holds that the meaning of the term ‘proceeds’ varies depending on
the nature of the illegal activity that produces the laundered funds[.]”); see also Pasquan-
tino v. United States, 544 U.S. 349, 358–59 (2005) (citing Clark in concluding that
because the federal wire fraud statute, 18 U.S.C. § 1343, “applies without differentiation”
to “fraudulent uses of domestic wires,” it must necessarily apply to a scheme to use the
domestic wires to deprive a foreign sovereign of taxes that are due).
56
State of Residence Requirements for Firearms Transfers
of the firearms provisions of title 18. This language provides clear textual
support for ATF’s conclusion that the “State of residence” of active duty
military personnel should be determined under a different standard than
the one applicable to other persons. See 27 C.F.R. § 478.11 (2011) (“If an
individual is on active duty as a member of the Armed Forces, the indi-
vidual’s State of residence is the State in which his or her permanent duty
station is located.”). Again, however, the presence of the express language
defining state residency differently for one particular group of persons
(military personnel) makes it difficult to argue that Congress intended to
authorize a special definition of state residency for a second group of
persons (aliens), because there is no express textual indication that Con-
gress intended to do so. See, e.g., Demarest v. Manspeaker, 498 U.S. 184,
188 (1991) (holding that prisoners who appear as witnesses in federal
court are entitled to payment under a statute granting appearance fees to
any “witness in attendance at any court of the United States,” relying in
part on the fact that other provisions of the statute expressly prohibited
prisoners from receiving other kinds of fees, and in part on the fact that a
subset of prisoners—detained aliens—was expressly excluded from the
entitlement to appearance fees (internal quotation marks omitted)). 8
Congress’s express legislative findings with respect to the state resi-
dency requirement likewise fail to support the distinction made in the
proposed final rule. These findings reflect Congress’s concern over the
“widespread traffic in firearms moving in or otherwise affecting interstate
or foreign commerce,” and the fact that “the existing Federal controls
over such traffic do not adequately enable the States to control this traffic
within their own borders through the exercise of their police power.”
Omnibus Crime Control and Safe Streets Act § 901(a)(1) (codified at 18
U.S.C. § 921 note). Congress concluded that this interstate traffic, which
involved “the sale or other disposition of concealable weapons . . . to
nonresidents of the State in which the licensees’ places of business are
located,” tended to render ineffective “the laws, regulations, and ordi-
nances in the several States and local jurisdictions regarding such fire-
arms.” Id. § 901(a)(5). These findings focus on the states’ ability to regu-
late and control firearms transactions and do not suggest any unique
8 Congress subsequently adopted the Incarcerated Witness Fees Act of 1991, Pub. L.
No. 102-417, 106 Stat. 2138 (1992), which amended the statute to eliminate witness fees
for incarcerated persons.
57
36 Op. O.L.C. 49 (2012)
concern with respect to state and local enforcement of firearms laws
against aliens. In the Senate Report, statements concerning the state
residency requirement, as originally enacted in the Omnibus Crime Con-
trol and Safe Streets Act, are to similar effect. 9
In sum, we do not think Congress’s use of the phrase “reside in . . . [a]
State” supports different definitions of that phrase for citizens and aliens
as a group, particularly in light of the principles of statutory interpretation
laid out in Clark. We thus conclude that the proposed final rule reflects an
interpretation of section 922(b)(3) that is not consistent with the statute.
VIRGINIA A. SEITZ
Assistant Attorney General
Office of Legal Counsel
9 See, e.g., S. Rep. No. 90-1097, at 80 (1968), reprinted in 1968 U.S.C.C.A.N. 2112,
2167 (“The provisions of the title which prohibit a licensee from disposing of firearms
(other than rifles and shotguns) to persons who are not residents of the State in which [the
FFL] conducts his business is justified by the record, which is replete with testimony
documenting the fact that the purchase of such firearms by persons in other than their
residence State is a serious contributing factor to crime.”); id. at 114, reprinted in 1968
U.S.C.C.A.N. at 2204 (explaining that section 922(b)(3) “implements the strict controls
over the interstate movements of pistols and revolvers in section 922(a)(2) as contained in
the title,” and is also “designed to prevent the avoidance of State and local laws control-
ling firearms other than rifles and shotguns by the simple expediency of crossing a State
line to purchase one”).
58