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You are not permitted to sell, transfer or lease any type of firearm to anyone without a valid permit under Penal Code Section 26500. Even if you do have a license or permit to sell a gun, the permit must specify the type of firearm you are legally able to sell or transfer if not a generic firearm.
Firearms are specifically defined in PC 16520:
- A device that is designed to be a weapon
- From which a bullet, shot or projectile may be expended through a barrel
- By the force of an explosion or combustion
These devices include pistols, revolvers, shotguns, rifles, rocket launchers, Tasers and flare guns. It does not include BB or pellet guns or unloaded antique firearms.
Although the US Supreme Court interpreted the 2nd Amendment to the US Constitution as granting the right to own firearms, this right is not absolute under certain circumstances nor is it available to certain classes of people. These include:
- Anyone convicted of a felony, regardless if it has been expunged
- Drug addicts
- Persons suffering from mental illness
- Anyone under the age of 18
- Persons with at least 2 convictions for brandishing a weapon under PC 417
- Persons convicted of certain misdemeanor offenses
A person who purchases a revolver, pistol or any other handgun from you must also possess a valid handgun safety certificate.
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PC 26500 does not apply to everyone. These classes of people may sell or otherwise transfer firearms without fear of prosecution:
- Law enforcement
- Military agencies
- Foreign governments and agencies as authorized the US State Department
- Persons making firearms available for use solely at target ranges
- Persons who inherited a firearm and wish to dispose of it
- Those who transfer of limited number of firearms at gun shows
- Persons who deliver or loan a firearm to a gunsmith for repair
- Between and among federally authorized gun dealers, manufacturers and importers
- Actors or others who use unloaded firearm as a prop in a movie, television show, play or other entertainment site
Movies or television shows that use destructive devices in their films must obtain permits to use them. Other than this limited list of exempt individuals, any other sale, loan or transfer of a firearm by private individuals must go through or be completed by a licensed firearms dealer.
To sell firearms, you need a license. To get a license, you must obtain the following:
- A firearms license
- A business license required by your local municipality
- Seller’s permit from the State Board of Equalization
- Certificate of Eligibility from the Department of Justice
- One-year license from your local authorizing agency
The one-year license is on a form provided by the state Attorney General’s Office. It must state “Valid for Retail Sales of Firearms” and contain an endorsement by the local authorizing agency. This applies to generic firearms and not specific types of weapons such as grenades, short-barreled rifles or shotguns, machine guns and those weapons classified as dangerous or “generally prohibited” weapons or as assault weapons for which there are specific licensing conditions and requirements.
If applicable, you must have a letter from the licensing authority that states that no license is required to sell firearms in this jurisdiction or that it does not restrict the sales of firearms.
A failure to maintain these licenses can subject you to revocation of your license. If you do sell or transfer a firearm without a valid license, or sell any of the firearms for which you do not possess a specific permit to sell, you face prosecution for violating PC 26500.
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A violation of PC 26500 is a misdemeanor. You face up to 6 months in county jail and/or a fine up to $1000. This sentence pertains to each violation so if you sold 6 firearms without being a licensed dealer or they were specific guns for which you held no permit to sell, you face 6 separate misdemeanor charges and sentences.
There are defenses to being charged with illegally selling firearms even though the law is straightforward in terms of either having a valid permit to sell generic firearms or one to sell specific types of firearms or not.
Police misconduct or Entrapment
Police officers occasionally do go to extralegal or illegal lengths in order to arrest someone. Entrapment is not a common occurrence and to use it successfully, certain circumstances must have occurred. First, you must have not have had the intent to violate the law. Second, the officer used undue influence, coercion or threats to force or persuade you to violate the law. In other words, but for the coercive tactics used by the officer, you would not have sold the firearm to the officer, knowing that you had no valid permit to sell.
Other types of police misconduct concern officers lying about or making up facts or even planting evidence in some cases. These acts constitute a violation of your civil or constitutional rights.
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