This article contains a general summary of California laws relating to antiques and "curios and relics." It is provided for educational purposes only and is not designed to provide individual guidance for specific situations, nor does it attempt to summarize federal law. Use of CalGunLaws.com is deemed acceptance of the Disclaimers/Terms of Use policy. The legality of any specific act will ultimately be determined by applicable federal and state statutory and case law and municipal law where it applies. For more information on specific state statutes, please refer to the full text of the California Penal Code sections referenced herein, available via the Internet at: CalGunLaws.com and California's Official Legislative Information site. Persons having specific questions are encouraged to seek legal advice from an attorney, or consult their local law enforcement agency or law library. To agree to these terms and review this summary, click "read more" below.

Curio and relic laws in California have long been a confusing topic for firearm owners.   After receiving requests for clarification, a memorandum of law regarding the transfer of curio or relic firearms was drafted by the Law Office of Trutanich-Michel, LLP.   This memorandum of law is reprinted below, and includes hypothetical questions and answers to further clarify any ambiguities.   This memorandum was provided to the California Department of Justice for review and comment.   The California Department of Justice responded to the memorandum of law by stating they have "no objection to the statutory interpretations contained therein."   Review the DOJ response here.

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MEMORANDUM OF LAW

TOPIC: TRANSFERRING CURIO OR RELIC FIREARMS

ANALYSIS

I. DEFINITIONS

A. DEALERS AND COLLECTORS

Under federal law, a "dealer" is "(A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaging in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker.

A "licensed dealer" under federal law means a dealer who is licensed under federal law, i.e., has an Federal Firearms License (FFL).

Federal law also creates "licensed collectors," defined by 18 U.S.C. 921(a)(13) as any person licensed to acquire, hold, or dispose of "curios or relics" under 18 U.S.C. 923. These are often referred to as Type 3 or "03" FFLs

California law defines "dealer" differently. Under California law, the terms "dealer," "licensee," or "persons licensed pursuant to Penal Code section 12071" have specific meanings under Penal Code section 12070(a)(1).¹ A California dealer needs an FFL, but also a number of other licenses, a "Certificate of Eligibility" (COE), and must be listed on the states "centralized list" of firearm dealers.

When referring to the California definition of the term "dealer" this memo will specifically identify the licensee as a "California dealer" so as to distinguish a California dealer from a federally licensed dealer.

B. "CURIO OR RELIC"

Under federal law, "curios or relics" are defined as any firearms that:

are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons. To be recognized as "curios or relics," firearms must fall within one of the following categories:

(a) Firearms which were manufactured at least 50 years prior to the current date, but not including replicas thereof;

(b) Firearms which are certified by the curator of a municipal, State, or Federal museum which exhibits firearms to be "curios or relics" of museum interest; and

(c) Any other firearms which derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event. Proof of qualification of a particular firearm under this category may be established by evidence of present value and evidence that like firearms are not available except as collector's items, or that the value of like firearms available in ordinary commercial channels is substantially less."²

Thus, "curios or relics" need not be more than 50 years old if they are "certified curios or relics" or if the firearm is so "novel, rare, bizarre," so as to be rare or substantially more expensive than like firearms.

California law regulates transfers of "curio or relic"("C&R") firearms, but it does not define the term. Instead, California law adopts the federal definition of "curios or relics."

II. FEDERAL INTERSTATE FIREARM TRANSFER LAWS

Generally, persons are prohibited under federal law from acquiring firearms from outside their state of residence. Specifically, 18 U.S.C. 922(a)(3) provides:

It shall be unlawful for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to 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.

Multiple exceptions to this statute exist.

The statute itself exempts "licensed collectors." This exception exists in conjunction with 18 U.S.C. 923(c) which expressly allows "licensed collectors" to transport firearms in interstate commerce. It provides:

Upon the filing of a proper application and payment of the prescribed fee, the Attorney General shall issue to a qualified applicant the appropriate license which, subject to the provisions of this chapter and other applicable provisions of law, shall entitle the licensee to transport, ship, and receive firearms and ammunition covered by such license in interstate or foreign commerce during the period stated in the license.

But, under 18 U.S.C. 923(d)(1)(F)(I), "the business to be conducted under the license [must] not [be] prohibited by State or local law in the place where the licensed premise is located.

Thus interstate transactions between licensed dealers or "licensed collectors" are permitted under federal law “ unless prohibited by California law.

III. FIREARM TRANSFERS UNDER CALIFORNIA LAW

Generally speaking, California law requires that most firearm transfers be processed through a "California "dealer." California law regulates both the person(s) involved in a firearm transaction, and the type of transaction itself.

A. CALIFORNIA DEALERS LICENSE REQUIRED TO TRANSFER FIREARMS

Penal Code section 12070(a) provides:

No person shall sell, lease, or transfer firearms unless he or she has been issued a license pursuant to Section 12071. Any person violating this section is guilty of a misdemeanor.

Multiple exceptions exist which exempt certain people from having to get a California dealer license to sell, lease, or transfer firearms.

Although it may seem obvious that a purchaser of a firearm should not need a California dealers license, the fact that by its own terms this statute does not require the buyer, leasee, or transferree of firearms to obtain a license is significant, as discussed below.

B. TRANSACTIONS THAT MUST GO THROUGH A CALIFORNIA DEALER

Penal Code section 12072(d) requires private party firearm sales to be done through a licensed dealer or through law enforcement. It provides:

Where neither party to the transaction holds a [California] dealer's license issued pursuant to Section 12071, the parties to the transaction shall complete the sale, loan, or transfer of that firearm through either of the following:

(1) A licensed firearms dealer pursuant to Section 12082.

(2) A law enforcement agency pursuant to Section 12084.

Penal Code section 12072(d) applies to transactions were the persons involved do not hold "California dealers" licenses. A number of specific transactions are exempted from 12072(d), some of which apply to some C&R firearms, as discussed below.

C. TRANSFERS FROM OUT OF STATE FFLS TO CALIFORNIA FFLS RESTRICTED

Penal Code section 12072(f) provides that:

No person who is licensed pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code shall deliver, sell, or transfer a firearm to a person who is licensed pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and whose licensed premises are located in this state unless, ... [p]rior to January 1, 2005, the intended recipient does one of the following:

(i) Presents proof of licensure pursuant to Section 12071 to that person.

(ii) Presents proof that he or she is exempt from licensure under Section 12071 to that person, in which case the person also shall present proof that the transaction is also exempt from the provisions of subdivision (d).

Thus, out-of-state FFLs may transfer firearms to California FFLs that are not California licensed dealers if the recipient provides proof that they are a California dealer, or are exempt from such licensure, and that such a transaction is exempt from the provisions of 12072(d).

So, collectors not in the business of selling firearms are not required to become "California dealers" since they are not selling, leasing or transferring firearms as is prohibited without a California Dealers License by Penal Code section 12070(a). Instead such collectors are receiving firearms for their collection. Recipients do not need to be California licensed.

Thus, a "licensed collector" not selling, transferring, or leasing "curios or relics" may receive "curios or relics" from other FFLs if such transfers are exempt from Penal Code section 12072(d).

Furthermore, a private party, collector or not, who only receives firearms is exempt from being licensed as a California dealer. And Penal Code section 12072(f) would not apply unless the private party was an FFL. So if the transaction itself is exempted from 12072(d), private parties can receive firearms from out of state FFLs.

The exemptions to 12072 are set out in Penal Code section 12078, and are discussed below.

IV. TRANSFERS EXEMPT FROM 12070(a) LICENSING REQUIREMENT

A. RECIPIENTS OF FIREARMS

By it own terms, Penal Code section 12070(a) only applies to the seller, lessor, or transferor. It does not require the buyer, lessee, or transferee, i.e., the recipient of a firearm to have a California dealers license.

B. PERSONS SELLING INFREQUENTLY

Penal Code section 12070(b)(4) provides that section 12070(a) does not apply to:

The infrequent sale, lease, or transfer of firearms.

This exception apparently exists to allow gun owners to sell their property.

C. OUT OF STATE FFLS TRANSFERRING TO CALIFORNIA DEALERS

California expressly exempts out of state FFL from requiring a California dealers license to sell to "California dealers." Penal Code section 12070(b)(15) provides an exemption to Penal Code section 12070(a), and provides that 12070(a) does not apply to:

Sales, deliveries, or transfers of firearms by persons who reside outside this state and are licensed pursuant to Chapter 44 (commencing with section 921) of Title 18 of the united States Code, and the regulations issued pursuant thereto to dealers, if the sale, delivery, or transfer is in accordance with Chapter 44 (commencing with Section 921) of Title 18 of the United States Code, and the regulations issued pursuant thereto.

D. OUT OF STATE PERSONS (NON-FFLS) TRANSFERRING TO CALIFORNIA DEALERS

Penal Code section 12070(b)(14) provides an exemption to Penal Code section 12070(a) for sales from out-of-state persons to "California dealers." Subdivision (a) does not apply to:

Sales, deliveries, or transfers of firearms by persons who reside outside this state to persons licensed pursuant to Section 12071, if the sale, delivery, or transfer is in accordance with Chapter 44 (commencing with Section 921) of Title 18 of the United States Code, and the regulations issued pursuant thereto.

E. COLLECTOR / 03 FFLS WITH CALIFORNIA COE TRANSFERRING TO CALIFORNIA DEALERS

Pursuant to Penal Code section 12070(b)(18), Penal Code section 12070(a) does not apply to:

"the delivery of an unloaded firearm that is a curio or relic, as defined in Section 178.11 of Title 27 of the Code of Federal Regulations, by a person licensed as a collector pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto with a current certificate of eligibility issued pursuant to Section 12071 to a [California] dealer."

Thus, persons with both a "collectors license" and a COE may transfer "curios or relics" on a frequent basis to "California dealers" without themselves being a "California dealer."

V. TRANSACTIONS EXEMPT FROM PENAL CODE SECTION 12072(d).

A. TRANSFERS OF LONG GUN C&RS OVER 50 YEARS OLD BETWEEN PRIVATE PARTIES

Penal Code section 12078(t)(2) exempts the infrequent transfer of rifles or shotguns that are both "curios or relics" and that are at least 50 years old from the requirements of Penal Code section 12072(d).

Specifically, Section 12078 (t)(2) exemption provides that:

Subdivision (d) of Section 12072 shall not apply to the infrequent³ sale, loan, or transfer of a firearm that is not a pistol, revolver, or other firearm capable of being concealed upon the person, which is a curio or relic manufactured at least 50 years prior to the current date, but not including replicas thereof, as defined in Section 178.11 of Title 27 of the Code of Federal Regulations.

Thus, a rifle or shotgun (i.e. firearm that is not a pistol, revolver, or other firearm capable of being concealed) that is a "curio or relic" at least 50 years old may, on an infrequent basis, be transferred from a federally licensed dealer to a "licensed collector," and between private parties without going through a California licensed dealer.

Nothing in the Penal Code prohibits such transaction where the source of the transfer is an out-of-state party. Nothing in the Penal Code requires the recipient to possess a Certificate of Eligibility.

Nor is the recipient from a non-licensee required to complete a Dealer Record of Sale form or undergo a background check.

Penal Code section 12078(t)(2) does not apply to transactions involving a "California dealer" because Penal Code section 12072(d) only applies to transactions where neither party is a "California dealer." If the transferor is a California Licensee, then the general firearm transfer rules apply, with one exception applying to long-guns.

Nothing in the Penal Code prohibits a "licensed collector"from receiving a curio or relic long-gun from out-of-state. In fact, certain procedures are in place to facilitate the importation of curio or relics. With regard to transfers by out-of-state federal firearm licensees to "licensed collectors," California law requires certain procedures be followed.

Thus, out-of-state sales of firearms, including "curios or relics," to "California dealers" are permitted.

Thus, out-of-state FFL may transfer firearms to California FFLs that are not California licensed dealers if the recipient FFL provides proof that they are exempt from licensure under California law and that such a transaction is exempt from the provisions of 12072(d).

Collectors not in the business of selling firearms are not required to become "California dealers" since they are not selling, leasing or transferring firearms as is prohibited without a California Dealers License by Penal Code section 12070(a). Instead such collectors are thought to be acquiring firearms for their collection. Thus, a "licensed collector" not selling, transferring, or leasing "curios or relics" may receive "curios or relics" from other FFLs if such transfers are exempt from Penal Code section 12072(d).

VI. NOTICE REQUIRED FOR IMPORTATION OF"CURIO OR RELIC" HANDGUNS BY LICENSED COLLECTORS

Penal Code section 12072(f)(3) requires that licensed collectors importing handguns that are"curios or relics" into California notify the DOJ within five days of importing the firearm into the state:

Where a person who is licensed as a collector pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto, whose licensed premises are within this state, acquires a pistol, revolver, or other firearm capable of being concealed upon the person that is a curio or relic, as defined in Section 178.11 of Title 27 of the Code of Federal Regulations, outside of this state, takes actual possession of that firearm outside of this state pursuant to the provisions of subsection (j) of Section 923 of Title 18 of the United States Code, as amended by Public Law 104-208, and transports that firearm into this state, within five days of that licensed collector transporting that firearm into this state, he or she shall report to the department in a format prescribed by the department his or her acquisition of that firearm."

VII. EXEMPTION TO WAITING PERIOD FOR 03 / COLLECTOR FFLs WITH A COE

Penal Code sections 12071, 12072 and 12084 apply waiting periods to certain firearm transactions.

California Penal Code section 12078 (t) (1), however, expressly exempts the waiting period for transfers of "curios or relics" to "licensed collectors" with COEs. Specifically:

The waiting period described in Sections 12071, 12072, and 12084 shall not apply to the sale, delivery, loan, or transfer of a firearm that is a curio or relic, as defined in Section 178.11 of Title 27 of the Code of Federal Regulations, by a dealer or through a law enforcement agency to a person who is licensed as a collector pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto who has a current certificate of eligibility issued to him or her by the Department of Justice pursuant to Section 12071.

Thus, if you have both a "collectors license" and a Certificate of Eligibility, the waiting period does not apply so long as the firearm is a "curio or relic." If the firearm is not a "curio or relic" then the Penal Code section 12078(t)(1) exemption does not apply, and the firearm is subject to the ten day waiting period stated in Penal Code sections 12071, 12072 and 12084.⁴

Penal Code section 12072(t)(1) does apply, exempting the waiting period for "licensed collectors" with COEs, but also requires that:

On the date that the delivery, sale, or transfer is made, the dealer delivering the firearm or the law enforcement agency processing the transaction pursuant to Section 12084, shall forward by prepaid mail to the Department of Justice a report of the transaction pursuant to subdivision (b) of Section 12077 or Section 12084. If the electronic or telephonic transfer of applicant information is used, on the date that the application to purchase is completed, the dealer delivering the firearm shall transmit to the Department of Justice an electronic or telephonic report of the transaction as is indicated in subdivision (b) or (c) of Section 12077.

"Licensed collectors" not in the business of selling firearms are not required to become a "California dealer" since they are not selling, leasing or transferring firearms as is prohibited without a "California dealers" license by Penal Code section 12070(a). Instead, such collectors are acquiring curio or relic firearms for their collection. Thus, a "licensed collector" that is not selling, transferring, or leasing "curios or relics" may receive "curios or relics" from other FFLs if such transfers are exempt from Penal Code section 12072(d).

Thus, a rifle or shotgun (i.e. firearm that is not a pistol, revolver, or other firearm capable of being concealed) that is a "curio or relic" at least 50 years old may, on an infrequent basis, be transferred from a federally licensed dealer to a "licensed collector," and between private parties without going through a "California dealer."

VIII. EXEMPTION TO ONE-HANDGUN-A-MONTH FOR 03 / COLLECTOR FFLs WITH A COE

Penal Code section 12072(a)(9)(A) provides that "[n]o person shall make an application to purchase more than one pistol, revolver, or other firearm capable of being concealed upon the person within any 30-day period." Penal Code section 12072(a)(9)(B)(x), however, provides a limited exemption to licensed collectors with COEs:

Subparagraph (A) shall not apply to ... [a]ny person who is licensed as a collector pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto and who has a current certificate of eligibility issued to him or her by the Department of Justice pursuant to Section 12071.

Thus, the 30 day waiting period does not apply to the transfer of "curios or relics" to"licensed collectors" with a COE.

CURIO OR RELIC INTERSTATE TRANSFER

QUESTIONS AND ANSWERS

[INTERSTATE TRANSFERS]

A1. Yes, on an infrequent basis from non "California dealers."

Additionally, a "licensed collector" may directly receive a long gun that is a "curio or relic" at least 50 years old in interstate commerce without going through a "California dealer" or a certificate of eligibility. Specifically, Penal Code section 12072(f) provides that:

No person who is licensed pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code shall deliver, sell, or transfer a firearm to a person who is licensed pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and whose licensed premises are located in this state unless, ... [p]rior to January 1, 2005, the intended recipient does one of the following:

(i) Presents proof of licensure pursuant to Section 12071 to that person.

(ii) Presents proof that he or she is exempt from licensure under Section 12071 to that person, in which case the person also shall present proof that the transaction is also exempt from the provisions of subdivision (d).

Thus, out-of-state Federal Firearms Licensees may transfer firearms to California Federal Firearms Licensees that are not California licensed dealers if the recipient provides proof that they are exempt from licensure and that such a transaction is exempt from the provisions of 12072(d).

Collectors not in the business of selling firearms are not required to become "California dealers" since they are not selling, leasing or transferring firearms as is prohibited without a California Dealers License by Penal Code section 12070(a). But instead such collectors are acquiring firearms for their collection. Thus, a "licensed collector" not selling, transferring, or leasing "curios or relics" may receive "curios or relics" from other FFLs if such transfers are exempt from Penal Code section 12072(d).

Penal Code section 12078(t)(2), however, exempts the infrequent transfer of rifles or shotguns that are both "curios or relics" and that are at least 50 years old from the requirements of Penal Code section 12072(d). Specifically, Section 12078 (t)(2) exemption provides that:

Subdivision (d) of Section 12072 [see footnote 4] shall not apply to the infrequent sale, loan, or transfer of a firearm that is not a pistol, revolver, or other firearm capable of being concealed upon the person, which is a curio or relic manufactured at least 50 years prior to the current date, but not including replicas thereof, as defined in Section 178.11 of Title 27 of the Code of Federal Regulations.

Thus, a rifle or shotgun (i.e. firearm that is not a pistol, revolver, or other firearm capable of being concealed) that is a "curio or relic" at least 50 years old may, on an infrequent basis, be transferred from a federally licensed dealer to a "licensed collector," and between private parties without going through a California licensed dealer.

Nothing in the Penal Code prohibits such transaction where the source of the transfer is an out-of-state party. Nothing in the Penal Code requires the recipient to possess a Certificate of Eligibility. Nor is the recipient from a non-licensee required to complete a Dealer Record of Sale form or undergo a background check.

Penal Code section 12078(t)(2) does not apply because Penal Code section 12072(d) only applies to transactions where neither party is a "California dealer." If the transferor is a California Licensee, then the general firearm transfer rules apply, with one exception applying to long-guns. Penal Code section 12072(t)(1) applies, exempting the waiting period for "licensed collectors" with COEs, but also requires that:

On the date that the delivery, sale, or transfer is made, the dealer delivering the firearm or the law enforcement agency processing the transaction pursuant to Section 12084, shall forward by prepaid mail to the Department of Justice a report of the transaction pursuant to subdivision (b) of Section 12077 or Section 12084. If the electronic or telephonic transfer of applicant information is used, on the date that the application to purchase is completed, the dealer delivering the firearm shall transmit to the Department of Justice an electronic or telephonic report of the transaction as is indicated in subdivision (b) or (c) of Section 12077.

A2. Yes. Generally, persons are prohibited from acquiring firearms from out-of-state. Specifically, 18 U.S.C. 922(a)(3) provides that:

It shall be unlawful for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to 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.

Multiple exceptions to this general rule exist. One exception stated above is made for "licensed collectors," which is defined by 18 U.S.C. 921(a)(13) as any person licensed to acquire, hold, or dispose of "curios or relics" under 18 U.S.C. 923. This exception exists because 18 U.S.C. 923(c) expressly allows "licensed collectors" to transport firearms in interstate commerce.

Upon the filing of a proper application and payment of the prescribed fee, the Attorney General shall issue to a qualified applicant the appropriate license which, subject to the provisions of this chapt