New Background Check Rule

[44 AMP]

Doing that without a FFL has always been illegal.

No, actually, its only been illegal since 1968.

[The Verminator]

True.

Thanks for the clarification.

[dogtown tom]

Bill DeShivs Dogtown Tom-

So, you don't perceive this as an infringement on personal firearms sales?

All gun laws are an infringement on the Second Amendment.
But until SCOTUS agrees we have to abide.

Of course its an infringement on personal firearm sales. But when a person doesn't hold an FFL and begins repetitively buying and selling firearms he's not collecting, not personal.........he's a business.

Do you not think that the current administration and BATF want a background check done on every firearms sale?

Isn't that obvious?

I do understand you value your FFL and do things correctly-as a dealer should, but it ALMOST sounds like you approve of additional regulations and infringement.

Oh please. Explanation doesn't equal agreement. You should know that.

BUT.......if I have to get an FFL, keep records, perform background checks on buyers and comply with federal law in order to engage in the business of dealing in firearms, so should anyone else who engages in the business of dealing in firearms.

If you don't want to get an FFL, keep records, perform background checks on buyers and comply with federal law to engage in the business of dealing in firearms........then don't dance around pretending its just a "personal sale". ATF is clear this doesn't prevent personal sales by nonlicensees.

This regulation isn't about Uncle Bob selling a gun at a gun show twice a year, its about the Bryan Malinowski's.....guys who rent multiple tables and sell dozens of new guns at gun shows or have dozens of online ads selling guns. They ARE engaged in the business and need to get their FFL.

If you don't want to do background checks, don't become a gun dealer.

[zukiphile]

Originally Posted by 44 Amp

So, I guess they've changed the fee schedule since the Clinton era??

The fee was increased in 1993, during the first year of that admin.

The change in definition and new regs take a definition resting on "with a principle objective of a livelihood" to something much broader that could include a mere offer to sell is not a clarification, and surely isn't required to prosecute what was already illegal.

[Bill DeShivs]

I understand your viewpoint now.

I agree that "dealers" should get an FFL. However, I really don't think the feds care so much about unlicensed dealers as they do about making most sellers a "dealer."

[44 AMP]

However, I really don't think the feds care so much about unlicensed dealers as they do about making most sellers a "dealer."

sure looks that way...

And this is what bothers me most, about how they are defining things.

For many, many years I bought, sold and swapped guns as a hobby. Face to face, no background checks, no FFL and entirely legal where I lived, and when I did it.

All the guns were for my personal use, some of them I still have decades later, others went away over time, a few I didn't keep more than weeks, or even days, if I found a better deal on something I wanted. None of it was done with the intent of generating income, though I did try hard to sell or trade for some degree of profit. Getting what I wanted was the point, losing money on the deal wasn't.

Based on what is being said and reported (admittedly always flawed and generally biased) someone doing what I used to could be classified as an "unlicensed dealer", and possibly prosecuted.

Just because the govt doesn't take a new rule or even a new law to its possible extremes today doesn't mean they never will.

[DaleA]

For many, many years I bought, sold and swapped guns as a hobby. Face to face, no background checks, no FFL and entirely legal where I lived, and when I did it.

(bold emphasis is mine)

A cautionary note for others:

Last year we were able to do this in Minnesota.

This year we cannot.

[The Verminator]

Originally Posted by DaleA

(bold emphasis is mine)

A cautionary note for others:

Last year we were able to do this in Minnesota.

This year we cannot.

Keep in mind that this restriction applies to pistols and assault rifles only.
https://gunowners.mn/learn/minnesota-laws/ubcs/

[44 AMP]

Keep in mind that this restriction applies to pistols and assault rifles only.

It can be argued that the law does not cover actual assault rifles. The term used in the link is "assault weapons", which is a tiny but significant difference.

A difference unknown to most people who get told something is an "assault weapon" and if it is a rifle, call it an assault rifle, but it's not an actual assault rifle.

The term "assault rifle" came into existence near the end of WWII, and was coined by Adolf Hitler. After the war it was adopted and defined by the firearms community using the main features of the German Sturmgewehr (Assault Rifle) those being box magazine fed, SELECT FIRE and using an "intermediate power cartridge".

The key difference between and assault rifle and an assault weapon is SELECT FIRE. Assault weapons are semi automatics, not capable of full auto fire. This is the definition written into law.

Assault rifles are select fire, and since they are capable of full auto fire, under US Federal law, they are machine guns. There is no term in Federal law for assault rifles. They are machine guns, and that feature takes precedence over all others.

Its only one word of difference in the name, but a huge difference in the definitions, and one that the anti gun people deliberately made up to take advantage of most people lack of knowledge in this rather narrow and arcane area of firearms terminology, when they created the term "assault weapon".

[stagpanther]

Here's something to ponder--when you do a firearms transfer without an ffl--and you originally bought it with one--the trail of serial record goes cold with you as last known owner. If you acquire the serial firearm without an ffl and then move it on--and you do this on a repeated basis, that's a tricky situation as well. The big "what if" is what happens if the firearm ends up being used or transferred illegally.

[zukiphile]

Originally Posted by stagpanther

Here's something to ponder--when you do a firearms transfer without an ffl--and you originally bought it with one--the trail of serial record goes cold with you as last known owner. If you acquire the serial firearm without an ffl and then move it on--and you do this on a repeated basis, that's a tricky situation as well. The big "what if" is what happens if the firearm ends up being used or transferred illegally.

Why should this be tricky?

Except for the cars I have now, every car I've ever purchased has been passed on to someone else. I couldn't tell you whether any of them were used in a deadly drunk driving crash. Household goods and clothing I've purchased but no longer have were largely been given to churches.

While the focus of my hobby is shooting, I don't deny that I sometimes have found the items themselves interesting, or that sometimes my interest in a specific item having been dated then passes. I've had a few that didn't make it beyond a first range session to know that I didn't like them well enough to keep them. I've surely had months in which I bought or sold more than once.

Would that still be occasional under the new law, and should anyone trust the federal government to measure occasional sales fairly where they've already indicated that less than one can be enough to violate law?

(b) Fact-specific inquiry. Whether a person is engaged in the business as a dealer under paragraph (a) of this section is a fact-specific inquiry. Selling large numbers of firearms or engaging or offering to engage in frequent transactions may be highly indicative of business activity.
However, there is no minimum threshold number of
firearms purchased or sold that triggers the licensing requirement. Similarly, there is no minimum number of transactions that determines whether a person is “engaged in the business” of dealing in firearms. For example, even a single firearm transaction or offer to engage in a transaction, when combined with other evidence (e.g., where a person represents to others a willingness and ability to purchase more firearms for resale), may require a license; whereas, a single isolated firearm transaction without such evidence
would not require a license. At all times, the determination of whether a person is engaged in the business of dealing in firearms is based on the totality of the circumstances.
(c) Presumptions that a person is engaged in the business as a dealer. In civil
and administrative proceedings, a person shall be presumed to be engaged in the business of dealing in firearms as defined in paragraph (a) of this section, absent reliable evidence to the contrary, when it is shown that the person—

https://www.atf.gov/rules-and-regula...earms/download at p457, 458.

That's not a standard and it isn't plausibly offered for clarity of application. It's an assertion of expanded federal authority over people who have no objective of a livelihood pertaining to firearms with a presumption in favor of the government.

[stagpanther]

Except for the cars I have now, every car I've ever purchased has been passed on to someone else

Blur the interpretation enough--it becomes plausible there is no difference between a licensed business and the casual "hobbyist try-it-out -and sell-it-for-the next-interest." Mind you, I'm not taking sides, I'm just relaying actual experience with the ATF in my state over these issues. In my state, they generally give the benefit of the doubt to a "violater" with a notice of the law's interpretation. That may change, I don't know.

[Nathan]

I’m still confused. There have been some super minor tweaks, infringements none the less, that have been communicated. Then they go tell the press that this drives 20000 more dealers and stops some gun show loop hole and puts an end to internet sales. Nothing written substantially changes any of this, unless they just start randomly arresting people not violating the law….or harass online dealers out of dealing with individuals. That has been done. This is why we need an FFL to ship anything!

[The Verminator]

Originally Posted by Nathan

I’m still confused. There have been some super minor tweaks, infringements none the less, that have been communicated. Then they go tell the press that this drives 20000 more dealers and stops some gun show loop hole and puts an end to internet sales. Nothing written substantially changes any of this, unless they just start randomly arresting people not violating the law….or harass online dealers out of dealing with individuals. That has been done. This is why we need an FFL to ship anything!

Nothing to be confused about.

The average gun owner does not buy and sell enough to be in violation.

If it does anything, this new reg only applies to a few guys who are constantly buying and selling to make money.

This is a political move to make Biden's Liberal base think he's doing something.

He's not.

[The Verminator]

Originally Posted by stagpanther

Here's something to ponder--when you do a firearms transfer without an ffl--and you originally bought it with one--the trail of serial record goes cold with you as last known owner. If you acquire the serial firearm without an ffl and then move it on--and you do this on a repeated basis, that's a tricky situation as well. The big "what if" is what happens if the firearm ends up being used or transferred illegally.

Exactly.

This is why I will never sell another gun EXCEPT through my local gun shop placing it on Gun Broker for me.

This works well and I am protected.

[zukiphile]

Originally Posted by The Verminator

If it does anything, this new reg only applies to a few guys who are constantly buying and selling to make money.

ATF see the new legislation and regs differently. According to them

Rather than establishing a minimum threshold number of firearms purchased or sold, the NPRM proposed to clarify that, absent reliable evidence to the contrary, a person would be presumed to be engaged in the business of dealing in firearms when the person: (1) sells or offers for sale firearms, and also represents to potential buyers or otherwise demonstrates a willingness and ability to purchase and sell additional firearms; (2) spends more money or its equivalent on purchases of firearms for the purpose of resale than the person’s reported taxable gross income during the applicable period of time;

https://www.atf.gov/rules-and-regula...earms/download p 32. Emphasis added.

If you spend the summer after highschool cutting lawns to make the last $1500 you needed (combined with your prior year's $2000 in savings) to buy a $3500 rifle, then follow your first year of college with an unpaid internship and sell the rifle to pay rent, you have spent more money on the purchase of a firearm for the purpose of resale than your reported taxable gross income in the last year.

If you lose your job and sell your guns at the rate greater than your reported taxable gross income so you can pay your mortgage, you fall within the presumption. Maybe rebutting that presumption will distract you from your other misfortunes.

It would be your burden to rebut these presumptions in civil proceedings, but the bureau also contends that these presumptions "...may be useful to courts in criminal cases..." p 462-463.

[The Verminator]

Originally Posted by zukiphile

ATF see the new legislation and regs differently. According to them



https://www.atf.gov/rules-and-regula...earms/download p 32. Emphasis added.

If you spend the summer after highschool cutting lawns to make the last $1500 you needed (combined with your prior year's $2000 in savings) to buy a $3500 rifle, then follow your first year of college with an unpaid internship and sell the rifle to pay rent, you have spent more money on the purchase of a firearm for the purpose of resale than your reported taxable gross income in the last year.

If you lose your job and sell your guns at the rate greater than your reported taxable gross income so you can pay your mortgage, you fall within the presumption. Maybe rebutting that presumption will distract you from your other misfortunes.

It would be your burden to rebut these presumptions in civil proceedings, but the bureau also contends that these presumptions "...may be useful to courts in criminal cases..." p 462-463.

Those cases sound extremely rare and would be difficult to win in court.

The BATF doesn't want difficult. They want clear, open and shut cases where they can get a guilty plea for probation.

The guilty party loses his right to own firearms and has his confiscated.

BATF is happy with that easy outcome.

[zukiphile]

Originally Posted by The Verminator

Those cases sound extremely rare and would be difficult to win in court.

They may be rare, but they aren't "guys who are constantly buying and selling to make money".

If your point is that the law and regs may not survive court challenge, I'd share your hope, but that doesn't mean the regs only apply to guys constantly buying and selling.

Originally Posted by The Verminator

The BATF doesn't want difficult. They want clear, open and shut cases where they can get a guilty plea for probation.

The guilty party loses his right to own firearms and has his confiscated.

BATF is happy with that easy outcome.

That's not reassuring. Was prosecuting people who actually run unlicensed gun businesses too difficult for the DOJ?

The ATF are within an agency of the federal executive. If the executive wants bump stocks to be treated as NFA items or wants to put a chill through the market of legitimate individual non-licensed gun owners, the ATF will oblige. That's what an agent does.

[Bill DeShivs]

Should you actually win one of these cases in court, you will likely be broke for the rest of your life.

Don't think federal agencies won't take you to court if they think you'll win. They would just as soon you spend every last dime defending yourself. Their lawyers are already on staff. You have to hire and pay yours.

[The Verminator]

Originally Posted by Bill DeShivs

Should you actually win one of these cases in court, you will likely be broke for the rest of your life.

Don't think federal agencies won't take you to court if they think you'll win. They would just as soon you spend every last dime defending yourself. Their lawyers are already on staff. You have to hire and pay yours.

If anybody can name some cases like that that were brought to court I'd like to see it.

They only want the slam dunk cases where they can get a quick guilty plea in exchange for probation and loss of rights to own guns.

I've seen three of those and almost became one myself.........luck and the grace of God saved me.

[zukiphile]

Originally Posted by The Verminator

If anybody can name some cases like that that were brought to court I'd like to see it.

They only want the slam dunk cases where they can get a quick guilty plea in exchange for probation and loss of rights to own guns.

I've seen three of those and almost became one myself.........luck and the grace of God saved me.

I can appreciate how informative one's own experiences can be, but that clearly isn't the only kind of case federal agencies bring.

Abramski, Sackett v. EPA and West Virginia v. EPA are all cases in which an agency explored the limits of its authority. In Abramski, the issue was one that had been decided against the government in other circuits. In Sackett and West VA., the agency involved pressed forward with a power that wasn't constitutionally valid.

Counting on a federal agency to be lazy and risk averse isn't a flawless strategy.

[The Verminator]

Did either of those cases involve "lose your job and sell your guns at the rate greater than your reported taxable gross income so you can pay your mortgage," or........

"spend the summer after high school cutting lawns to make the last $1500 you needed (combined with your prior year's $2000 in savings) to buy a $3500 rifle, then follow your first year of college with an unpaid internship and sell the rifle to pay rent..........."?

[zukiphile]

Originally Posted by The Varminter

Did either of those cases involve "lose your job and sell your guns at the rate greater than your reported taxable gross income so you can pay your mortgage," or........

"spend the summer after high school cutting lawns to make the last $1500 you needed (combined with your prior year's $2000 in savings) to buy a $3500 rifle, then follow your first year of college with an unpaid internship and sell the rifle to pay rent..........."?

My apologies. I thought your request for similar cases was directed to Bill DeShiv's observation about the government pressing cases it may well lose and the expense involved in defending oneself from federal prosecution.

No, I can provide you no cases that match those or any other fact patterns under a regulation that is not yet effective.

If those fact patterns fit the law and reg, on what basis do you believe the government would find prosecuting the described behavior difficult?

[44 AMP]

a person shall be presumed to be engaged in the business of dealing in firearms as defined in paragraph (a) of this section, absent reliable evidence to the contrary,

Isn't this a "provide reliable evidence that you stopped beating your wife" kind of thing???

The average gun owner does not buy and sell enough to be in violation.

If it does anything, this new reg only applies to a few guys who are constantly buying and selling to make money.

TODAY.....

The big "what if" is what happens if the firearm ends up being used or transferred illegally.

Do you mean what happens after you legally sold an item?? (gun, rock, car, anything you can legally sell)

I'd say your legal responsibility for what happens to or with that item ends when you sell it.

[stagpanther]

I'd say your legal responsibility for what happens to or with that item ends when you sell it.

You might say that--but the investigators of a crime have to follow the trail wherever it leads. The "private sales" to family or friends implies that your personal knowledge of them reduces the necessity for a background check. Note that recently the parents of a kid who committed mass murder with a firearm that was legally purchased and passed on to him are getting sent to the slammer for a very long time for having prior knowledge of their son's behavior but not taking proactive action.