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With gun sales booming across the nation, you might be considering selling or buying a gun from a friend. The process for retail firearm sales is outlined by The Brady Handgun Violence Prevention Act, which is a federal law that requires federal firearm licensees (“FFLs”) to conduct background checks through the National Instant Criminal Background Check System (“NICS”) on the sale or transfer of certain types of firearms or accessories. Background checks are not currently required for private sales under federal law. However, under New Mexico state law, background checks are required for private firearm sales unless the sale falls within one of the narrow exceptions found in N.M. Stat. Ann. § 30-7-7.1. What does this mean to you and your private sale?

Background Checks in New Mexico

On July 1, 2019, N.M. Stat. Ann. § 30-7-7.1 “Unlawful Sale of a Firearm Without a Background Check” became effective. Generally, this law requires a federal instant background check on all firearm sales, including those conducted between private parties. Selling a firearm without conducting a background check is now considered a misdemeanor in New Mexico. § 30-7-7.1(G). The law defines a firearm “sale” as “the delivery or passing of ownership, possession or control of a firearm for a fee or other consideration but does not include temporary possession or control of a firearm provided to a customer by the proprietor of a licensed business in the conduct of that business.” § 30‑7‑7.1(C)(5).

N.M. Stat. Ann. § 30-7-7.1(A) enumerates when a federal instant background check is required for the sale of the firearm. Subsection (A)(1) requires that if the buyer is not a natural person, the person designated by the buyer to possess the firearm after the sale must undergo a federal instant background check. (A)(2) outlines the requirement that if the seller does not hold a current or valid FFL (a private seller), then they must arrange for an FFL to conduct the required background check. Additionally, FFLs are not allowed to unreasonably refuse to perform background checks for private sales, and they may charge a fee of up to $35 for this service. The law does not distinguish between a buyer that is located in New Mexico or an out-of-state buyer. The duty lies entirely on the seller to conduct the background check, so if the seller is in New Mexico, regardless of where the buyer is, the seller must conduct a background check on the person who is seeking to take possession of the weapon.

Exceptions to Background Checks

Subsection (B) of N.M. Stat. Ann. § 30-7-7.1 lists the exceptions for when a background check by an FFL is not required. Exceptions include (1) if either the buyer or seller is an FFL; (2) & (3) if the buyer is a law enforcement agency or if the sale is between two law enforcement officers; and finally (4) if the sale is between immediate family members. “Immediate family member” is defined as “a spouse, parent, child, sibling, grandparent, grandchild, great-grandchild, niece, nephew, first cousin, aunt or uncle.” § 30-7-7.1(C)(4).

It is important to note that § 30-7-7.1 is also silent when firearms are transferred without “consideration,” or in other words, are given away, gifted, or through a trust. As with all matters relating to gun ownership, sales, and self-defense, your U.S. LawShield Independent Program Attorney is available to answer any questions and help you navigate the law.

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