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06 January 2016

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Macgupta123


The meaning of "in the business of":

"Quantity and frequency of sales are relevant indicators. There is no specific threshold number of firearms purchased or sold that triggers the licensure requirement. But it is important to note that even a few transactions, when combined with other evidence, can be sufficient to establish that a person is “engaged in the business.” For example, courts have upheld convictions for dealing without a license when as few as two firearms were sold or when only one or two transactions took place, when other factors also were present."

from: https://www.whitehouse.gov/the-press-office/2016/01/04/fact-sheet-new-executive-actions-reduce-gun-violence-and-make-our

Macgupta123

Further:

https://www.atf.gov/file/100871/download

"What does it mean to be “engaged in the business of dealing in
firearms”?

Under federal law, a person engaged in the business of dealing in firearms is a person who “devotes time, attention and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”

Under federal law, conducting business “with the principal objective of livelihood and profit” means that “the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection.”

Consistent with this approach, federal law explicitly exempts persons “who make occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

Has ATF defined what it means to be “engaged in the business” of
dealing in firearms?

ATF has published regulatory definitions for the terms “engaged in the business” and “principal objective of livelihood and profit.” ATF’s regulation defining when a person is “engaged in the business” of dealing in firearms is identical to the language of the statute, though in the definition of “dealer,” ATF clarified that the term includes “any person who engages in such business or occupation on a part-time basis.

Macgupta123

Further, from the previous link:

"Federal courts have identified several factors that can help you determine on what side of that line your activities fall. They include: whether you represent yourself as a dealer in firearms; whether you are repetitively buying and selling firearms; the circumstances under which you are selling firearms; and whether you are looking to make a profit. It is important to note that no single factor is determinative, and that the relative importance of any of the factors will vary depending on the facts and circumstances applicable to the individual seller."
....

"In addition to the volume and frequency of firearms transactions, the timing and circumstances surrounding firearm transactions are also significant indicators of whether a person is engaged in the business. Repetitively selling or offering to sell firearms shortly after they are acquired; “restocking” inventory; repetitively acquiring the same type of firearm or a large quantity of the same type of firearm, and then reselling or offering to sell those firearms; and/or repetitively acquiring and reselling or offering to sell firearms in unopened or original packaging (or in new condition), are all factors which individually or combined may indicate a person is engaged in the business."

"Finally, it is important to note that courts have found that you can buy and sell firearms “with the principal objective of livelihood and profit” even if your firearm-related activities are not your primary business. In other words, you can still be “engaged in the business of dealing in firearms with the principal objective of livelihood and profit” if you have a full time job, and are buying and selling firearms to supplement your income.

Macgupta123

The fact sheet does not use the word "universal".
https://www.whitehouse.gov/the-press-office/2016/01/04/fact-sheet-new-executive-actions-reduce-gun-violence-and-make-our

Macgupta123

Examples:
https://www.atf.gov/file/100871/download

Bob inherits a collection of firearms from his grandfather. He would rather have cash
than the firearms, so he posts them all online for sale. He makes no purchases, but
over the course of the next year he sells all of the firearms he inherited in a series of different transactions. Bob does not need a license because he is liquidating a
personal collection.

---

Joe recently lost his job, and to finance his living expenses he has been buying
firearms from friends and reselling them though an internet site. He has successfully
sold a few firearms this way, and has several more listed for sale at any one time.
Joe must be licensed because he is repetitively buying and selling firearms with the
primary objective of profit.

---

Sharon travels to flea markets the first Saturday of every month, buying undervalued
goods, including firearms. The last Saturday of every month Sharon rents a booth at
the flea market and sells her items at market value for a profit. She hopes to make
enough money from these sales to finance a trip to Italy next year. Sharon must get
a license because she is repetitively buying and selling firearms with the primary
objective of profit.

---

David enjoys hunting and has a large variety of hunting rifles. He likes to have the
newest models with the most current features. To pay for his new rifles, a few times a
year David sells his older weapons to fellow hunters for a profit. David does not need
to be licensed because he is engaging in occasional sales for enhancement of his
personal collection.

---

Lynn regularly travels to gun shows around her state, rents space, and sells firearms
under a banner stating “liquidating personal collection.” Most of the firearms Lynn
offers for sale she purchased from a licensed dealer in the prior weeks. Lynn is retired and hopes to supplement her income with the money she makes on the sales, although she has yet to turn a profit. Lynn must get a license because she is repetitively buying and selling firearms with a primary objective of profit.

---

Scott has been collecting high-end firearms for years. In the six months before his
son is about to enter college, Scott sells most of his collection in a series of trans-
actions at gun shows, on the Internet, and to family and friends to provide funds to
pay his son’s college expenses. Scott does not have to be licensed, because he is
liquidating part of a personal collection.

---

Debby has three handguns at home, and decides that she no longer wants two of them. She posts an advertisement in the local newspaper and sells the two handguns to a local collector. Debby does not need a license because she is not engaging in the repetitive purchase and resale of firearms as a regular course of trade or business.

---

Jessica enjoys shooting sports and frequently goes to shooting ranges and hunting clubs. To make some extra money, she buys firearms from a dealer who is willing to give her a discount, and resells them for a profit to acquaintances from the shooting ranges and hunting clubs. She has done this a few times a month for the last several months, and has been spreading the word that she has a source for other firearms. She passes out business cards with her name, phone number and email. Jessica must get a license because she is repetitively buying and selling of firearms with the primary objective of profit.

---
Doug regularly attends gun shows and rents a table to display firearms for sale. He gets firearms from a variety of sources, carefully logs each purchase into a book, and uses the purchase price to set a sales price that will realize him a net profit. Doug accepts credit card payments and typically sells multiple firearms at each of the gun shows he attends each year. He makes a substantial amount of money annually, and uses this money to live on. Doug must be licensed because he is repetitively buying and selling firearms with the primary objective of profit.

---

Swami

Those are fair questions--I hope they are asked, and answered.

turcopolier

Macgupta123

“any person who engages in such business or occupation on a part-time basis." So, if I have several firearms that I have had for years and decide to sell them to a friend at a profit I must be licensed and conduct a background check on him? pl

The Twisted Genius

Macgupta123,

Your info is great for the current state of play. However, it may change once the new rules are written. Maybe we'll get clarity in the town hall, but I'd be surprised if that happens. I would think the Administration would try to address any transaction beyond inheritances, gifts and outright trades/barters. Maybe they won't be that ambitious.

The Twisted Genius

pl,

At first glance I thought that was a picture of my favorite H&R Sportsman top break revolver. That S&W is nice too. I'm just a sucker for tradition.

robt willmann

This illustrates the diabolical cleverness of the Gun Control Act of 1968 coming home to roost.

By writing that law in terms of persons "engaging in the business of dealing in firearms", the individual gun owners were tricked into thinking that the law would not have an impact on them. After all, they did not own a gun shop or retail business.

But by making the operative language that requires you to get a federal license very broad and vague and expressing it in those terms -- "engaging in the business of dealing in firearms" -- the critical and necessary activities of transferring and receiving guns were included in the scope and reach of the law. Then all you have to do is monkey around with the definition of "engaging in the business of" to include as many types of transfers as you can.

raksh wah

this is a lethal instrument- you should take as much care in selling it as you would in arsenic or cyanide.

turcopolier

rakesh wah

we already do. That is the point. pl

Tyler

Obama's town hall is a ginned up ploy and nothing else.

Tel

If she's a friend, don't sell at a profit. Problem solved.

William R. Cumming

Widow and widowers selling their deceased spouses gun collections? Executors of estates?

John Minnerath

Obama would like to require everyone who sells a firearm have an FFL. Even with his complicit AG I don't think he'll get far with that one.
Biggest dangers to us gun owners would be a continuation of his administration.
And even then a solidly conservative legislature should help.
At the state level more and more are moving against further gun control.

Rex

Macgupta123,

Your posts are great information, thanks. I had spent some time on the ATF website but not got as far. Liquidating personal collection and collector, seems to be where I would fall, but I wonder if on any single or group sold at greater than purchase cost, is that "objective to profit." What if an especially good piece is sold at greater than cost to further add to collection with new acquisitions? Seems that could be seen as "restocking" for further sales. Frustratingly murky. A C&R license (type 03 for curio class guns) seems useful, but I bet those are going to be under increased scrutiny. May have to just get the full license.

Profit, ha ha, as each new curio bought requires near equal purchase in loading dies, brass, powder, bullets....no fun if not shooting them!

Fred

precedent for further federal control of private transactions.If the Federal Government can regulate these as commercial transactions then they can regulate other private property being sold. Just what clause of the Constitution allows that?

Will Reks

John,

I think Obama is well aware that he's limited in what he can do. I don't think its about that. This is all politics and aimed primarily at the 2016 election. However, it seems that he's also trying to solidify an opposition movement in support of gun control that will continue long after he's left office.

This is great news for the NRA and the firearms industry as long as obstacles exist in Congress and state legislatures. Business has been very good in the Obama years.

jimmy_w

Macgupta123,
The problem with these rules, is that during the Clinton era, the ATF started checking the FFLs. If they were not doing sufficient business or making enough money, ATF was revoking their FFLs. And they jacked up the fees. Thus, for the low volume sellers such as Ms Flea Market up there, she would not have enough business volume to justify keeping her FFL. ATF will charge her for dealing, yet won't give her an FFL.

She probably will win in court, but why is it ok for the Fed to harrass Americans with these lawsuits?

scott s.

The concept of "firearms dealer" was created in the 1938 Federal Firearms Act. The perceived problem addressed in the Omnibus Crime Control and Safe Streets Act (for handguns) and Gun Control Act (extended to long arms) large incorporated the same definitions, with I think some fixing of differences between the FFA 38 definition and the earlier NFA 34 definition (NFA was re-codified as Title II of the GCA 68). The main wrinkle of GCA 68 was that individuals could not purchase across state lines, except for in-person purchase of long guns from dealers in contiguous states. The dealer language was cleaned up after numerous complaints of perceived ATF harassment of non-dealer sellers. The FOPA 86 tightened up the language on what constitutes "dealing" in firearms.

From what I see, Obama isn't going to change anything (other then the requirements for transferring NFA firearms to non-natural persons such as trusts or corporations). I suspect we'll see BATFE make some busts in Federal Districts where a compliant US Attorney will pursue the case as an object lesson. It will be up to the courts to determine the statutory construction, as it has in the past.

scott s.

They understood that. That's why NFA 34 was designed as a tax on making and transferring. Then with FFA 38 and later GCA, the licensing requirements were structured towards inter-state sales, with in-state sales unregulated (though of course by 68 the feds had extended the concept of interstate commerce to cover any firearm that had eve moved in interstate commerce).

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