Official Guidance

Answers to retailer questions on employment and consignment

Q: Is it legal for an employee who becomes prohibited from possessing firearms to continue to be employed by a federal firearms licensee (FFL)?
A: Under the provisions of the Gun Control Act of 1968 (GCA), convicted felons and certain other persons are prohibited from possessing firearms [see 18 U.S.C. § 922(g)]. This section states, in part, “It shall be unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year…to ship or transport in interstate or foreign commerce or possess in or affecting commerce any firearm or ammunition.” Therefore, an individual prohibited from possessing firearms due to a conviction as outlined in the aforementioned statute is ineligible from possessing firearms.
For the purposes of the GCA, 18 U.S.C. § 921 et seq, “possession” may be either “actual” or “constructive.” Actual possession of a firearm or ammunition exists when the firearm or ammunition is in a person’s immediate possession or control.
Constructive possession exists when a person does not have actual possession but instead knowingly has the power and intention at a given time to exercise dominion and control over the firearm or ammunition, either directly or through others. Possession need not be exclusive, but may be joint possession with others. In addition, a person may be in possession of a firearm or ammunition even though he or she does not own the property.
The prohibited employee may continue to work for the FFL as long as he or she does not possess any firearm (as per “possession” as defined above). He or she may have neither actual nor constructive access to firearms.

Q: Can a licensee return a consigned firearm to an individual other than the person who originally placed the firearm on consignment?
A: Yes. Licensees may do so, provided an ATF Form 4473 is completed and a background check is conducted. The licensee must ensure the transaction is in compliance with state and local law. If the licensee is not comfortable with releasing the firearm to a different individual, he or she can deny transfer of the firearm.

Q: How would question 11(a)—“Are you the actual buyer of the firearm(s)?”—on ATF Form 4473 be completed in the scenario outlined above?
A: If a person is picking up a consigned firearm for another individual, question 11(a) on ATF Form 4473 should be answered with an “N/A.” A background check must also be conducted on the individual picking up the firearm. It is the responsibility of a licensee to contact the original consignor for permission to release the firearm prior to the transfer or delivery.

Q: Can a licensee return a consigned firearm to a family member of the person who originally consigned the firearm if the original consignor is a prohibited individual?
A: Yes. A family member of a prohibited individual who placed a firearm on consignment with a licensee may pick up the firearm subsequent to a background check and completion of the ATF Form 4473. However, a family member picking up the firearm may not transfer or deliver that firearm to the prohibited person. Additionally, a prohibited person cannot have access to any firearms or ammunition, nor can the prohibited person have actual or constructive possession of a firearm or ammunition.
In addition, a family member may not place a prohibited person in a situation where he or she could gain constructive or actual possession of the firearm. It must be made perfectly clear that the person who picks up the firearm may not transfer or deliver the firearm to the prohibited individual. If the family member picking up the firearm either transfers or delivers the firearm to the prohibited individual or allows the prohibited person access to the firearm, this action could be construed as aiding and abetting the possession of firearm by a felon, and both family members could be subject to prosecution.