ATF redefining who's a dealer

[wabbit]

I'm sure some of us had heard about what the ATF is doing to redefine the definition of who is a firearms dealer, in an attempt to bring more charges against people who sell guns as an illegal unlicensed dealer. I think everyone should read the proposed new rule and submit a comment against it.

Federal Register :: Request Access

The new definition would presume someone selling a gun, even on gunbroker, to be "engaged in the business" of dealing firearms unless there was evidence otherwise. The new rule explicitly doesn't list a minimum number of sales to be considered an unlicensed dealer and even one sale can allow the ATF to classify someone as an unlicensed dealer. This could potentially be very bad for gun owners who own a lot of guns and buy and sell several a year.

Section II is the actual proposed new rule, and comments can be submitted by clicking on the green Submit A Formal Comment at the top of the webpage.

 

[Bob A]

I'm trying hard to make myself believe that the ATF gives a rat's arse about the comments they receive.


Nope. But I did try.

 

[Allen65]

I'm trying hard to make myself believe that the ATF gives a rat's arse about the comments they receive.


Nope. But I did try.

At a minimum, they care about the comments because some of the elements in them will end up being used as arguments in the inevitable lawsuits against the new rules once they're promulgated.

 

[Doco Overboard]

Welcome to the new age of being licensed.
One is to many and a hundred not enough even if you part with one firearm it seems to me.
When's the go live date? I must have missed in trying to understand if I met the threshold for being a dealer or not when I choose to sell a gun.

 

[Sirex]

So, if we want to sell a firearm we don't really shoot anymore, I guess we need to put it on consignment thru a gun store and have THEM sell it for us? Or maybe transfer it as a "gift"?

 

[Alea Jacta Est]

Make criminals out of citizens. That “shall not be infringed” crap isn’t really what they meant. Or maybe, tines have changed and it doesn’t mean the same thing.

The criminals already don’t obey laws. The citizens try to. Right up until they view the law as gross and ridiculous over reach. Then we can be added to the ranks of the non law abiding. Except, they will arrest and detain us.

two words…black market


think like water
be the rain

 

[Doctor_M]

This is nuts. But what else is new.

 

[coinboy]

Anyone else comment on the proposed rule??

Here's mine:

My name is coinboy, a former FFL 03 (Collector of Curio and Relics), and I object to the ATF proposed rule of ATF 2022R-17.

Concerning ATF proposed rule ATF 2022R–17, I believe that in order for this rule to survive in courts one must first follow the requirements under Heller v. DC and NYSRPA v. Bruen. Those requirements clearly spell out that under phase one, The People must show that a rule or law touches fingers with the Second Amendment. Under phase two, the government (ATF and DOJ) must prove that there is relevant history, text, and tradition during the founding era of 1791 to uphold the law or rule.

Clearly under phase one, the rule touches fingers with the 2nd Amendment because it affects the ability of The People to obtain, purchase, and/or sell a firearm. This is conduct that would be necessary in order "To keep and bear arms."

Next, it would be required by the goverment to show that the rule has a similar twin of this proposed rule during the founding era. It would have to be similar to a "green hat, green truck" as Justice Thomas stated in the Bruen decision.

I believe this rule has no historical twin during the founding era and is therefore unconstitutional.

ATF in the proposed rule stated that they had wished to more clearly define the issue of "engaged in the business" back in 1979 for a proposed rule but walked it back. It appears their proposal considered the selling of more than one to 100 guns sold within year.

I believe this is a very real issue. For example, an FFL 03 or a non-FFL that wishes to enhance their personal collection may wish to sell multiple firearms to buy a piece that is more rare and costly. This policy would have prohibited the enhancement of any and all collections under the guise that they are "engaged in the business" and that they would be currently "predominantly earn[ing] a profit" under the new rule.

Under the new rule, it truly is absured to wish for collectors both FFL 03 and non-FFL's to take a loss in their collected items. Collectors should expect to enjoy a profit while holding and curating a collectable arm especially with the original box and papers. Most tangible assets change in value over time (either up or down) so a policy of "predominantly earn[ing] a profit" is relevant. Under the proposed rule, an FFL 03 or non-FFL selling a weapon with a profit could theoretically be considered "engaged in the business" even if it was solely for "enhancing their collection."

The rule specifically talks about dealing in firearms and having a pecuniary gain. It further states how the facts of a case will be used with other facts to determine if one is dealing in firearms. (This is too vague and subjective.) Then it completely contradicts itself stating that the rule "does not require the person to have received pecuniary gain."

It also states that if one were to trade a firearm for another, that could be considered dealing in firearms. Many have enhanced their collections over the years by trading firearms where it is legal to do so.

This rule demolishes the standard of the "..objective of 'livelihood' and profit..." in regards to "engaged in the business." This is strange because the rule is about classifing who needs a license to deal in firearms. A dealer in firearms devotes time, attention, wishes to earn a profit, and is doing it for their 'livelihood'. We can see this change in FOPA 1986 "...with the principal objective of livelihood and profit..." and BSCA 2022 "...predominantly earn a profit..."

Under the definition of "engaged in the business" and the defined terms, "purchase" and "sale" (and their derivative terms), it specifically states if one trades a firearm for another it would both be a purchase and a sale. A collector normally would see this as enhancing ones collection.

Further, the proposed rule prohibits a collector from selling a firearm if "...their conduct also demonstrates a predominant intent to earn a profit." Why should collectors not expect to earn a profit over time?

Additionally, according to the rule the ATF speculates that, "...persons who repetitively sell firearms in new condition or in like-new condition in their original packaging, or firearms of the same kind and type, are not likely to be selling such firearms from a personal collection. Individuals who are bona fide collectors are less likely to amass firearms of the same kind and type than amass older, unique, or less common firearms that hold special interest."

Contrary to what ATF says, many collectors collect firearms of the same kind and type. For example, a collector may wish to have different 1911's from different war periods such as a WWI example, a WWII example, a Korean War example, a commercial example, and so on. The same could be said for the M1 Garand. Some collectors may also collect foreign firearms of the same kind and type that were manufactured from different arsenals. Moreover, a collector of foreign arms may wish to obtain multiple firearms of the same kind and type but wish to collect them by import markings.

It is important to state that not all people that collect firearms are FFL 03's. Collectors also do not only collect arms that are "older, unique, or less common firearms that hold special interest." Many people collect modern common arms. What is today's common arm, may be tomorrow's collectible.

I would also disagree with the ATF's position of "new condition or in like-new condition in their original packaging" as an argument in dealing in firearms. Many collectors and non collectors save the boxes for their firearms. In the context of pistols and revolvers specifically, these same boxes are used for safe and secure transport of firearms to the range, a gunsmith, and so on. The objective of most gun owners is not to allow their guns to rust and deteriorate, it is to preserve them in new or like new condition.

The rule states that a person who "(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;  (63)" would be engaged in the business. The problem is that how would a collector sell their guns to another collector or divest themselves of their firearms if they don't offer them for sale and state that they have other weapons they wish to sell? Many collectors would wish to show their firearms to others for the potential to buy them so they could upgrade their collection.

"Engaged in the business" also has its own issues related to the matter. Under current Chevron Deference, the ATF would have too much power to determine what this is on a case by case basis. This could lead to unequal treatment of our citizens under the law. Moreover, it could be pushed farther or less so based on the political whims of the President of the United States or the top unelected leadership within the ATF.

I believe these issues need to be resolved by Congress itself and not the executive branch (ATF) of the goverment. Congress makes laws. The executive branch enforces them. The courts are supposed to interpret them. Under this proposed rule, ATF is trying to do all three. Our system of goverment has checks and balances for a reason.

We have already seen the over expansion of these rules such as the Bump Stock Ban, the Frame and Receiver Rule, and the Pistol Brace Rule. I believe that Congress did not intent for these rules as ATF is interpreting them and some of the federal courts agree.

I believe that if the proposed rule were to take effect, the NRA, FPC, GOA, the Second Amendment Foundation, as well as others would sue for an injunction. I will support them in their endeavor. Then the ATF and DOJ would use our own taxpayer money to fight a case against The People at our own expense.

The purpose of this rule was for people to understand and simplify the rule. This rule does the opposite. It makes the law more extensive, confusing, complicated, and hard to follow by a layman with severe legal consequences.

For all of this, I strongly object to this arbitrary and capricious proposed rule.

Thank you,
coinboy

 

[Allen65]

Anyone else comment on the proposed rule??

Here's mine:

My name is coinboy, a former FFL 03 (Collector of Curio and Relics), and I object to the ATF proposed rule of ATF 2022R-17.

Concerning ATF proposed rule ATF 2022R–17, I believe that in order for this rule to survive in courts one must first follow the requirements under Heller v. DC and NYSRPA v. Bruen. Those requirements clearly spell out that under phase one, The People must show that a rule or law touches fingers with the Second Amendment. Under phase two, the government (ATF and DOJ) must prove that there is relevant history, text, and tradition during the founding era of 1791 to uphold the law or rule.

Clearly under phase one, the rule touches fingers with the 2nd Amendment because it affects the ability of The People to obtain, purchase, and/or sell a firearm. This is conduct that would be necessary in order "To keep and bear arms."

Next, it would be required by the goverment to show that the rule has a similar twin of this proposed rule during the founding era. It would have to be similar to a "green hat, green truck" as Justice Thomas stated in the Bruen decision.

I believe this rule has no historical twin during the founding era and is therefore unconstitutional.

ATF in the proposed rule stated that they had wished to more clearly define the issue of "engaged in the business" back in 1979 for a proposed rule but walked it back. It appears their proposal considered the selling of more than one to 100 guns sold within year.

I believe this is a very real issue. For example, an FFL 03 or a non-FFL that wishes to enhance their personal collection may wish to sell multiple firearms to buy a piece that is more rare and costly. This policy would have prohibited the enhancement of any and all collections under the guise that they are "engaged in the business" and that they would be currently "predominantly earn[ing] a profit" under the new rule.

Under the new rule, it truly is absured to wish for collectors both FFL 03 and non-FFL's to take a loss in their collected items. Collectors should expect to enjoy a profit while holding and curating a collectable arm especially with the original box and papers. Most tangible assets change in value over time (either up or down) so a policy of "predominantly earn[ing] a profit" is relevant. Under the proposed rule, an FFL 03 or non-FFL selling a weapon with a profit could theoretically be considered "engaged in the business" even if it was solely for "enhancing their collection."

The rule specifically talks about dealing in firearms and having a pecuniary gain. It further states how the facts of a case will be used with other facts to determine if one is dealing in firearms. (This is too vague and subjective.) Then it completely contradicts itself stating that the rule "does not require the person to have received pecuniary gain."

It also states that if one were to trade a firearm for another, that could be considered dealing in firearms. Many have enhanced their collections over the years by trading firearms where it is legal to do so.

This rule demolishes the standard of the "..objective of 'livelihood' and profit..." in regards to "engaged in the business." This is strange because the rule is about classifing who needs a license to deal in firearms. A dealer in firearms devotes time, attention, wishes to earn a profit, and is doing it for their 'livelihood'. We can see this change in FOPA 1986 "...with the principal objective of livelihood and profit..." and BSCA 2022 "...predominantly earn a profit..."

Under the definition of "engaged in the business" and the defined terms, "purchase" and "sale" (and their derivative terms), it specifically states if one trades a firearm for another it would both be a purchase and a sale. A collector normally would see this as enhancing ones collection.

Further, the proposed rule prohibits a collector from selling a firearm if "...their conduct also demonstrates a predominant intent to earn a profit." Why should collectors not expect to earn a profit over time?

Additionally, according to the rule the ATF speculates that, "...persons who repetitively sell firearms in new condition or in like-new condition in their original packaging, or firearms of the same kind and type, are not likely to be selling such firearms from a personal collection. Individuals who are bona fide collectors are less likely to amass firearms of the same kind and type than amass older, unique, or less common firearms that hold special interest."

Contrary to what ATF says, many collectors collect firearms of the same kind and type. For example, a collector may wish to have different 1911's from different war periods such as a WWI example, a WWII example, a Korean War example, a commercial example, and so on. The same could be said for the M1 Garand. Some collectors may also collect foreign firearms of the same kind and type that were manufactured from different arsenals. Moreover, a collector of foreign arms may wish to obtain multiple firearms of the same kind and type but wish to collect them by import markings.

It is important to state that not all people that collect firearms are FFL 03's. Collectors also do not only collect arms that are "older, unique, or less common firearms that hold special interest." Many people collect modern common arms. What is today's common arm, may be tomorrow's collectible.

I would also disagree with the ATF's position of "new condition or in like-new condition in their original packaging" as an argument in dealing in firearms. Many collectors and non collectors save the boxes for their firearms. In the context of pistols and revolvers specifically, these same boxes are used for safe and secure transport of firearms to the range, a gunsmith, and so on. The objective of most gun owners is not to allow their guns to rust and deteriorate, it is to preserve them in new or like new condition.

The rule states that a person who "(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;  (63)" would be engaged in the business. The problem is that how would a collector sell their guns to another collector or divest themselves of their firearms if they don't offer them for sale and state that they have other weapons they wish to sell? Many collectors would wish to show their firearms to others for the potential to buy them so they could upgrade their collection.

"Engaged in the business" also has its own issues related to the matter. Under current Chevron Deference, the ATF would have too much power to determine what this is on a case by case basis. This could lead to unequal treatment of our citizens under the law. Moreover, it could be pushed farther or less so based on the political whims of the President of the United States or the top unelected leadership within the ATF.

I believe these issues need to be resolved by Congress itself and not the executive branch (ATF) of the goverment. Congress makes laws. The executive branch enforces them. The courts are supposed to interpret them. Under this proposed rule, ATF is trying to do all three. Our system of goverment has checks and balances for a reason.

We have already seen the over expansion of these rules such as the Bump Stock Ban, the Frame and Receiver Rule, and the Pistol Brace Rule. I believe that Congress did not intent for these rules as ATF is interpreting them and some of the federal courts agree.

I believe that if the proposed rule were to take effect, the NRA, FPC, GOA, the Second Amendment Foundation, as well as others would sue for an injunction. I will support them in their endeavor. Then the ATF and DOJ would use our own taxpayer money to fight a case against The People at our own expense.

The purpose of this rule was for people to understand and simplify the rule. This rule does the opposite. It makes the law more extensive, confusing, complicated, and hard to follow by a layman with severe legal consequences.

For all of this, I strongly object to this arbitrary and capricious proposed rule.

Thank you,
coinboy

All valid points, but I'd suggest they be broken out into separate submissions, with each submission covering a single topic. Human beings have to read all these, and the longer a submission is, the less any single point will have any impact. There's no fee per submission and the submission is electronic, so there's no real cost to breaking your points out into multiple single-topic submissions.

 

[coinboy]

All valid points, but I'd suggest they be broken out into separate submissions, with each submission covering a single topic. Human beings have to read all these, and the longer a submission is, the less any single point will have any impact. There's no fee per submission and the submission is electronic, so there's no real cost to breaking your points out into multiple single-topic submissions.

I thought that the submission form said that only the last submission would be considered?

 

[Allen65]

I thought that the submission form said that only the last submission would be considered?

Hmmm, hadn't seen that. I've filed comments about FAA rule changes, and it wasn't an issue as far as I could tell as long as different sections of the proposal were being commented on.
Maybe ATF works differently. Wouldn't be the first time I missed the fine print.

 

[delaware_export]

Doj announces final rule today.

 

[Coehorn]

Black Market Guns.

AKA: Selling off a legitimately owned firearm collection.

Selling a gun through Gunbroker should still be OK. The FFL accepting the firearm will be running the background check prior to releasing the firearm to the new buyer.

The "Primarily Selling Guns To Make A Profit" comment sounds like there's a bit of wiggle room for individual sales. And it shouldn't affect anyone in Maryland. As we already have strict transfer laws in place.

 

[Doctor_M]

Statement still leaves me hanging.... "If you sell guns, predominately for a profit..."

Are occasional C&R sales to enhance your collection still permissible under this Charlie Foxtrot?

 

[Coehorn]

Can't imagine C&R to C&R being a problem.

Even Non-C&R to C&R shouldn't be a problem.

 

[wabbit]

Doj announces final rule today.

What an absolute piece of sh!t this guy is.
There's no such thing as gun violence, it's all criminal violence.
It seems the BATFE was opening the proposed rule making for comments just for show, and they were going to redefine who's an unlicensed dealer no matter what the public says.
"predominantly for profit" - yeah, everyone sells their guns for as much as the market will bear and what they can get for it, not for the least money they can get for the gun. If I sold my CZ75B for $400, which I bought for $350 twenty five years ago, then I'm an unlicensed gun dealer according to this turd in a suit because I made a profit. F*ck Obama, F*ck Joe Biden and I hope both of them and their minions all rot in hell when the time comes.

 

[Doctor_M]

Just remember how close he came to being a Supreme Court Justice for life.

 

[Coehorn]

Just remember how close he came to being a Supreme Court Justice for life.

And Mitch Mconnell prevented it.

So many have forgotten that.

 

[Doco Overboard]

I’m thinking this will have significant impact for mainstream pre 98 firearms and even black powder items as well.
Many are already leery of selling the above without ffl stipulations involved in the sale as things currently are.

 

[BurkeM]

Are occasional C&R sales to enhance your collection still permissible under this Charlie Foxtrot?

IMHO, yes- as long as your 'business records' show you suffered a net loss at the end of the year.

Add up everything you bought- firearms, ammo, accessories, storage systems, cleaning supplies, cases, etc.
Include the cost of membership fees (NRA, MSI, etc), subscription services (phone & internet), range fees, etc.
Include mileage and vehicle expenses- track mileage to/from gun shows, FFL's, the NRA annual meeting, range trips. Runs to CMP North.

The TOTAL is your 'overhead.' Example- you spent $10,000 in 2024.

You sell xx guns in 24- total received- $3,000.

You had a net loss of $7,000 for the year- no PROFIT.

(Accountants and tax lawyers may confirm- or point out any errors)