Could an out-of-state dealer sell a handgun that was not on Maryland's handgun roster to a Maryland buyer?

Plain-English summary

Maryland's 1988 handgun roster law created a board to list handguns useful for legitimate sport, self-protection, or law enforcement purposes, and made it illegal to "sell or offer for sale in the State" a handgun manufactured after January 1, 1985 that was not on the roster. The chairman of the Handgun Roster Board asked how that ban, Article 27, §36-1(b), applied to interstate transactions: out-of-state dealers selling to Maryland residents, Maryland dealers selling to out-of-state buyers, Maryland federal licensees buying guns out of state, and exhibitors taking orders at Maryland gun shows.

The Attorney General answered with a place-of-the-transaction rule borrowed from general sales law. A sale happens where the buyer takes physical possession of the gun, and an offer happens where the potential buyer receives it. So an out-of-state dealer selling an unapproved handgun for delivery in Maryland violated the statute, even routing the gun through a federal licensee acting as a conduit. A Maryland seller shipping an unapproved handgun for delivery in another state did not violate the statute, provided no offer was made in Maryland. A Maryland federal licensee who bought an unapproved handgun in another state for personal use made the purchase there, but a licensee acting as a conduit for another Maryland resident effectively made the sale happen in Maryland. And an exhibitor offering unapproved handguns at a Maryland gun show made a prohibited offer in Maryland even if delivery would occur elsewhere, because selling and offering to sell were separate offenses. The opinion also held that buyers and sellers could not contract around the rule by agreeing that title passed out of state; the place of physical delivery controlled, since a criminal statute cannot be circumvented by agreement between the parties.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Maryland's firearms laws have been extensively rewritten since 1990. Article 27 was recodified into the Public Safety Article in 2003, and both Maryland and federal handgun sale and transfer requirements have changed repeatedly since this opinion was issued. Check the current Public Safety Article and current federal firearms law before relying on anything here.

Common questions

Could an out-of-state dealer ship a handgun that was not on the roster to a Maryland buyer?
No. Under this 1990 opinion, the sale of a handgun occurred where the buyer took physical delivery. If the buyer took delivery in Maryland, directly or through a Maryland federal licensee acting as a conduit, the sale happened in Maryland and violated Article 27, §36-1(b).

Could a Maryland dealer sell an unapproved handgun to someone in another state?
Yes, under the law as it stood in 1990, if the buyer took physical delivery in the other state and no offer to sell was made in Maryland. The opinion read the statute to reach sales and offers occurring in Maryland, not deliveries completed elsewhere.

Was it legal to take orders for unapproved handguns at a Maryland gun show?
No. Offering an unapproved handgun for sale at a Maryland gun show was itself a violation, even if the buyer would take delivery in another state. The opinion emphasized that selling and offering to sell were separate offenses under the statute.

Could the buyer and seller just agree that the sale legally happened out of state?
No. Although commercial law generally lets parties agree where title passes, the opinion concluded the General Assembly could not have intended a criminal statute to be circumvented by agreement. For roster-law purposes the sale occurred at the place of physical delivery, regardless of any contrary agreement.

What if a Maryland federal firearms licensee bought an unapproved handgun in another state and brought it home?
It depended on who the real buyer was. If the licensee bought the gun for personal use, the sale occurred in the other state. If the licensee was buying on behalf of another Maryland resident who was not a licensee, the opinion treated the sale as occurring in Maryland, the same as if the out-of-state seller had shipped the gun to a Maryland dealer for pickup by the true buyer.

Background and statutory framework

Article 27, §36-1 came from Chapter 533 of the Laws of Maryland 1988, which established the Handgun Roster Board to compile a roster of handguns useful for legitimate purposes in sports, self-protection, or law enforcement. Section 36-1(b) provided that "[a] person may not sell or offer for sale in the State a handgun manufactured after January 1, 1985 that is not on the handgun roster," and §36-1(g)(3) confirmed that each handgun manufactured, sold, or offered for sale in violation was a separate violation. The federal backdrop was the Gun Control Act: under 18 U.S.C. §922(a)(3), a person without a federal firearms license could not transport into or receive in their home state a firearm obtained outside it, so interstate handgun transfers had to run through federal licensees.

To fix where a sale or offer occurred, the opinion drew on general sales principles: title ordinarily passes at the place of physical delivery under CL §2-401(2) (with "sale" defined in CL §2-106(1) and payment ordinarily due at receipt under CL §2-310(a)), and an offer is made where the potential buyer receives it, citing Maryland Supreme Corp. v. Blake Co. and May Dep't Stores Co. v. Director of Revenue. The conduit analysis leaned on United States v. Lawrence, where a person buying guns under a third party's direction and with the third party's money was not the true purchaser. The opinion tied its reading to the roster law's preamble purpose of removing all aspects of traffic in unapproved handguns from Maryland, warning that a seller-location rule would just shift commerce to out-of-state dealers, and invoked Harford County v. Edgewater for avoiding constructions at odds with legislative purpose. It closed by noting the reading was consistent with the federal Gun Control Act's purpose, described in United States v. Flores, of helping states shut off the flow of firearms across their borders.

Citations and references

Statutes:

• Article 27, §36-1 of the Maryland Code, the handgun roster law, including the sale-and-offer prohibition in §36-1(b) and the separate-violation provision in §36-1(g)(3); enacted by Chapter 533, Laws of Maryland 1988
• 18 U.S.C. §922(a)(3) and §922(a)(2), the federal Gun Control Act's interstate transfer restrictions
• CL §2-401(2), CL §2-106(1), and CL §2-310(a), the Commercial Law Article's rules on passage of title, definition of sale, and place of payment

Cases:

• May Dep't Stores Co. v. Director of Revenue, 748 S.W.2d 174, 175 (Mo. 1988), on where a sale occurs
• Maryland Supreme Corp. v. Blake Co., 279 Md. 531, 539, 369 A.2d 1017 (1977), on where an offer is made
• United States v. Lawrence, 680 F.2d 1126 (6th Cir. 1982), on conduit purchasers under 18 U.S.C. §922
• Harford County v. Edgewater, 316 Md. 389, 397, 558 A.2d 1219 (1989), on avoiding unreasonable constructions
• United States v. Flores, 753 F.2d 1499, 1502 (9th Cir. 1985), on the Gun Control Act's purpose

Related AG opinion: Opinion No. 89-049 (December 22, 1989) (unpublished)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 230-234 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

HANDGUNS

Handgun Roster Law Prohibits Physical Delivery of or Offer to Sell Unapproved Handgun in Maryland, Even if Seller is Located in Another State, But Does Not Prohibit Maryland Dealer From Selling Unapproved Handgun for Physical Delivery in Another State if No Offer to Sell is Made in Maryland

December 4, 1990

Colonel Elmer H. Tippett
Chairman, Maryland Handgun Roster Board

 You have requested our opinion on the effect of Article 27, §36-1(b) of the Maryland Code, which prohibits selling or offering to sell certain handguns, on handgun transactions between residents of Maryland and residents of other states.

 For the reasons given below, we conclude that §36-1(b) prohibits the sale of an unapproved handgun if the purchaser takes physical delivery in Maryland, even if the seller is located in another state, and also prohibits any seller from making in Maryland an offer to sell an unapproved handgun, even if the purchaser would take physical delivery in another state. However, the statute does not prevent a Maryland-based seller from selling an unapproved handgun for delivery in another state, so long as no offer to sell is made in Maryland.

I

Background

 Article 27, §36-1 was enacted as part of Chapter 533 of the Laws of Maryland 1988, which established the Handgun Roster Board to compile a roster of handguns useful for legitimate purposes in sports, self-protection, or law enforcement. Under §36-1(b), "[a] person may not sell or offer for sale in the State a handgun manufactured after January 1, 1985 that is not on the handgun roster." That provision thus prohibits two acts, whether by a licensed dealer or by any other person: selling an unapproved handgun and offering an unapproved handgun for sale. See also Article 27, §36-1(g)(3) ("each handgun manufactured, sold, or offered for sale in violation of this subsection shall be a separate violation").

 Under 18 U.S.C. §922(a)(3), a person who does not hold a federal firearms license may not "transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State ...." Thus, transfers of handguns between residents of different states may be accomplished only by and through persons who hold federal firearms licenses. See also 18 U.S.C. §922(a)(2) (prohibiting licensees from shipping or transporting in interstate or foreign commerce any firearm to any nonlicensee). A licensee who wishes to sell a firearm to a nonlicensee who resides in a different state must transfer the firearm to a licensee in the purchaser's state, who then retransfers the firearm to the purchaser.

 You have asked whether Article 27, §36-1(b) would be violated in any of four situations in which an interstate transaction in a handgun could occur: (i) when an out-of-state holder of a federal firearms license sells a handgun not on the roster to a Maryland resident directly or through another federal licensee; (ii) when a seller whose residence or place of business is located in Maryland sells a handgun not on the roster to a purchaser located in another state; (iii) when a Maryland holder of a federal firearms license, while in another state, purchases a handgun not on the roster and then returns to Maryland, bringing the handgun; or (iv) when an exhibitor at a gun show in Maryland takes orders for handguns that are not on the roster. The legality of each of these kinds of transactions depends upon whether a sale or an offer to sell takes place in Maryland.

II

Place of Sale or Offer

 The place at which a sale of any item is ordinarily deemed to occur is the place at which the purchaser takes physical possession of the item. See May Dep't Stores Co. v. Director of Revenue, 748 S.W.2d 174, 175 (Mo. 1988). Thus, for example, §2-401(2) of the Commercial Law Article ("CL" Article) provides that the passage of title to an item from the seller to the buyer — a "sale" as defined in CL §2-106(1) — ordinarily occurs at the place where completion of physical delivery of the item occurs. See also CL §2-310(a) (payment ordinarily due at time and place of buyer's receipt of goods).

 An offer to sell an item cannot be said to have been made unless a potential buyer is made aware of the offer. Hence, an offer to sell is likewise deemed to have been made at the place where the potential buyer receives the offer. See Maryland Supreme Corp. v. Blake Co., 279 Md. 531, 539, 369 A.2d 1017 (1977).

 Applying these general principles to the transactions about which you inquire, we conclude that a sale of a handgun occurs in Maryland in the first situation you describe, when the purchaser takes delivery in Maryland. Whether the delivery is made directly from an out-of-state seller to a Maryland buyer who holds a federal firearms license or through another Maryland resident who holds a federal firearms license and has agreed to serve as a conduit for the transaction, the handgun itself reaches the actual buyer while he or she is in Maryland. See also Opinion No. 89-049 (December 22, 1989) (unpublished) (Maryland resident who frequently serves as conduit for interstate handgun sales is engaged in business of selling firearms in Maryland). Conversely, the sale takes place in another state in the second situation, when the purchaser takes physical delivery of the handgun in the other state, whether directly or through a federal licensee in that state.

 In the third situation, when a Maryland resident who holds a federal firearms license travels to another state and there buys a handgun, the place of the sale depends upon whether the licensee is the ultimate purchaser or a mere conduit. If the licensee buys the handgun for his or her own use, the place of the sale is in the other state; however, if the licensee travels to another state to buy a handgun on behalf of another Maryland resident who is not a licensee, the place of the sale is Maryland. In this latter case, the situation is no different in substance than if the out-of-state seller ships the handgun to a dealer in Maryland to be there picked up by the true buyer. Cf. United States v. Lawrence, 680 F.2d 1126 (6th Cir. 1982) (person is not purchaser for purposes of 18 U.S.C. §922 where person acted under control and direction of third party and guns were purchased with third party's money).

 Finally, when a person who is in Maryland in connection with a gun show offers to sell his or her handguns, the person is making the offer in Maryland, even if the buyer would take delivery in another state. Because selling and offering to sell are separate offenses, one may make a prohibited offer in Maryland albeit the person does not subsequently make a sale in Maryland.

 These results, in each case, comport with the purpose for which the handgun roster law was enacted. That law was intended to remove certain handguns from Maryland by removing all aspects of the traffic in those handguns from Maryland. Chapter 533, Laws of Maryland 1988, Preamble. Construing the place of a sale or an offer as the location of the seller's business or residence would instead merely shift commerce in those handguns from Maryland dealers to out-of-state dealers.

 We recognize that CL §2-401(2) generally allows a buyer and seller to agree that title to the item sold will pass from seller to buyer — that is, that the sale will occur — at a place other than the place of physical delivery of the item. If that kind of agreement with respect to the sale of unapproved handguns were permissible, however, out-of-state sellers could freely sell those handguns to Maryland residents. The General Assembly could not have intended that a criminal statute proscribing sales of certain handguns would be subject to circumvention by agreement between the parties to an unauthorized sale. Hence, the place of a handgun sale for purposes of Article 27, §36-1 must be the place of the handgun's physical delivery to the buyer, notwithstanding any attempted agreement of the parties. "Results that are unreasonable, illogical, or that are at odds with the legislative purpose should be avoided." Harford County v. Edgewater, 316 Md. 389, 397, 558 A.2d 1219 (1989).

 This construction of Maryland's law is consistent with federal law regarding firearms sales. The federal Gun Control Act is intended to assist states in regulating firearms distribution, for the safety of their own citizens, by shutting off the flow of firearms across their borders. United States v. Flores, 753 F.2d 1499, 1502 (9th Cir. 1985).

III

Conclusion

 In summary, it is our opinion that Article 27, §36-1(b) prohibits the sale of an unapproved handgun if the purchaser takes physical delivery in Maryland, regardless of the seller's location. The statute also prohibits any seller from making in Maryland an offer to sell an unapproved handgun, regardless of where physical delivery of the handgun would take place. However, the statute does not prevent a Maryland-based seller from selling an unapproved handgun for delivery in another state, so long as no offer to sell is made in Maryland.

                                         J. Joseph Curran, Jr.
                                         Attorney General

                                         C. J. Messerschmidt
                                         Assistant Attorney General

Jack Schwartz
Chief Counsel,
Opinions and Advice