BATFE New Rule on Unlicensed Dealers

[LESchwartz]

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;

(3) repetitively purchases for the purpose of resale, or sells or offers for sale firearms—
 (A) through straw or sham businesses, or individual straw purchasers or sellers; or
 (B) that cannot lawfully be purchased or possessed, including: (i) stolen firearms (18 U.S.C. 922(j)); (ii) firearms with the licensee’s serial number removed, obliterated, or altered (18 U.S.C. 922(k); 26 U.S.C. 5861(i)); (iii) firearms imported in violation of law (18 U.S.C. 922(l), 22 U.S.C. 2778, or 26 U.S.C. 5844, 5861(k)); or (iv) machineguns or other weapons defined as firearms under 26 U.S.C. 5845(a) that were not properly registered in the National Firearms Registration and Transfer Record (18 U.S.C. 922(o); 26 U.S.C. 5861(d));

(4) repetitively sells or offers for sale firearms—
 (A) within 30 days after they were purchased;
 (B) that are new, or like new in their original packaging; or
 (C) that are of the same or similar kind (i.e., make/manufacturer, model, caliber/gauge, and action) and type (i.e., the classification of a firearm as a rifle, shotgun, revolver, pistol, frame, receiver, machinegun, silencer, destructive device, or other firearm);

(5) as a former licensee (or responsible person acting on behalf of the former licensee), sells or offers for sale firearms that were in the business inventory of such licensee at the time the license was terminated (i.e., license revocation, denial of license renewal, license expiration, or surrender of license), and were not transferred to a personal collection in accordance with 18 U.S.C. 923(c) and 27 CFR 478.125a; or

(6) as a former licensee (or responsible person acting on behalf of a former licensee), sells or offers for sale firearms that were transferred to a personal collection of such former licensee or responsible person prior to the time the license was terminated, unless:
 (A) the firearms were received and transferred without any intent to willfully evade the restrictions placed on licensees by chapter 44, title 18, of the United States Code; and
 (B) one year has passed from the date of transfer to the personal collection.

This is the meat of the new rule:  A list of items where YOU must prove your innocence!  If you are engaged in one of these six activities ATF will claim you are a dealer . . . to read all 400+ pages of the rule yourself, see:  https://www.atf.gov/firearms/final-rule-definition-engaged-business-dealer-firearms.

I expect that #2 and #4A are most troubling to folks here.  For more information see (meat starts at 13:15):  https://www.youtube.com/watch?v=GSxU345wu9A.

Larry

[Onepoint]

Seems like #1 would be problematic to most people whittling down a collection, or even in estate sales.  Sell a rifle and they ask if you have more kind of puts a bullseye on you.  I wonder how this will effect auctions.

But the real issue is this part "...absent reliable evidence to the contrary"  The burden of proof is on you to prove a negative, and in very few cases can that be done without a trial.

[LESchwartz]

Seems like #1 would be problematic to most people whittling down a collection, or even in estate sales.  Sell a rifle and they ask if you have more kind of puts a bullseye on you.  I wonder how this will effect auctions.

I think that would be more like taking "orders" . . . "Hey, do you have this in FDE?" . . . "No, but I can get it!"

Of course, just how any of these rules plays out in practice is speculation at this point.

Larry

[Onepoint]

Or sell an SKS and get asked "Do you have a Romanian" would be just as applicable, the wording is there to make it prosecutable, and we depend on the good nature and common sense of an ATF agent in making that decision.  You are using common sense and logic, buts that's not how weaponized law works, and that's what this entire rule is designed to be.

[LESchwartz]

Rule #2 could catch folks up as well:  I just spent many $$$$ on that SVD I've been waiting half a lifetime to buy.  Shortly after I finally get it, I lose my job and experience extreme buyer's remorse (mainly due to my wife's getting on my case).  My buddy tells me "don't worry I'll take it off your hands for what you paid".  And *presto* you've violated the rules.

I expect rule #2 might also catch up retired folks who are on a fixed income.

Larry

[LESchwartz]

Then there is rule #4A:  Say I buy a couple of different firearms online.  When I get them, I realize that all the Youtuber's who recommended them were shilling for the gun companies and I hate the firearms.  A couple of my buddies tell me they'll buy them off me.  And *presto* you've violated the rules.

Larry

PS:  My recent for quest for a decent backpack PCC involved watching quite a few Youtuber's who were shilling for the gun companies.  So the scenario above isn't as bizarre a folks might think.

[Greatguns]

That part's easy Larry, just wait 30 days before you sell your buddy the rifle, lol.

[LESchwartz]

That part's easy Larry, just wait 30 days before you sell your buddy the rifle, lol.

No more selling items as LNIB . . .  If I sell them to my buddy and include the original packaging, waiting 30 days doesn't help.  See rule #4B.

Larry

[Hodgie]

This entire new illegal law that can put you in jail for years is designed to make it so people stop buying and selling firearms period. Do as you wish, but no matter how you do it there is a risk in being at the very least investigated. I do not see how anyone who is not an FFL is going to sell newly manufactured firearms. I am not sure how even FFL's will sell used firearms if you cannot sell your personal firearms to or through a legal FFL.

We were always afraid of loosing face to face firearm sales, so they one upped and have stopped all sales of privatly owned firearms with illegals laws that are as clear as mud.

[LESchwartz]

new illegal law

Unfortunately, I don't think the law is illegal, as as it was passed by Congress and signed by POTUS.  I don't think the regulations are illegal, as they appear to comply with the rulemaking requirements.  However, it remains to be seen whether the these restrictions are constitutional . . . it's ironic, SCOTUS is striking down more so-called "common sense gun laws" because they do not conform to history and tradition.  All the while Congress and states are passing more and more restrictions thumbing their nose at the Constitution.  So much for many politicians and their oath to "defend the constitution".

Larry

[1mlt]

I wonder how this s**t will affect some poor soul who just needs to sell off his collection, say, due to health problems, or, can't shoot worth a flip anymore, etc. fill in the blanks ...

[LESchwartz]

Last year, ATF published a "guide".  However, it's now difficult to tell if any of that information is now out of dat.  For more information, see last year's ATF's guide:  https://www.atf.gov/file/100871/download

Larry

[LESchwartz]

(e) Conduct that does not support a presumption. A person shall not be presumed to be engaged in the business of dealing in firearms when reliable evidence shows that the person is only reselling or otherwise transferring firearms—
(1) As bona fide gifts;
(2) Occasionally to obtain more valuable, desirable, or useful firearms for the person’s personal collection;
(3) Occasionally to a licensee or to a family member for lawful purposes;
(4) To liquidate (without restocking) all or part of the person’s personal collection; or
(5)To liquidate firearms—
  (i) That are inherited; or
  (ii) Pursuant to a court order; or
(6) To assist in liquidating firearms as an auctioneer when providing auction services on commission at an estate-type auction.

I spent some more time with the final rule.  They have explicitly added a list of "safe harbors" to the final rule.  I occasionally sell firearms via Gunbroker, which involves shipping the firearms to a dealer for transfer to the buyer.  Thus, item #3 and #4 would appear to provide a "safe harbor" for my collecting activities.

Other folks will have to decide whether these "safe harbors" are sufficient for their activities.

Larry

[Onepoint]

That will give them cover against many objectors, but this is bad no matter how much couching they do. And you still have to prove you are not dealing at any time they even question you are.

[LESchwartz]

That will give them cover against many objectors, but this is bad no matter how much couching they do. And you still have to prove you are not dealing at any time they even question you are.

Yes, I believe that people will have to show by "reliable evidence" that they fall into one of these categories.  It's still crappy rule, but at least they added the "safe harbor" part.

BTW in reading the final rule itself, there were a considerable number of comments from the "universal background check crowd" saying the purposed rule was toothless and didn't go far enough.

I do think the rule as written will effect very few of us, as ATF had already established case law for most of it.  Of course nobody trusts the ATF, so I'm probably wrong and they are planning the raid on my house for later this year.

Larry