New Background Check Rule

[The Verminator]

Originally Posted by zukiphile

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?

Cases are difficult when you have to take them to trial.

They involve time, making limited staff available and expense (plus the possibility of losing).

That's why the BATF creates cases where the perp has no chance of winning and is eager to accept a felony, probation and the loss of the right to own guns rather than go to prison.

This is easily accomplished by selecting a seller who meets requirements and having agents team up to sell him a gun and then another agent buy the gun. Just a few transactions and they have iron clad examples of him selling for profit.

As I said, I've experienced this, seen friends get a felony and I was lucky enough not to be charged.

[zukiphile]

Originally Posted by The Verminator

That's why the BATF creates cases where the perp has no chance of winning and is eager to accept a felony, probation and the loss of the right to own guns rather than go to prison.

That's why a change to a broader standard that includes people who clearly are not dealers under the prior standard is disconcerting.

Without discounting the work of trial, it isn't especially difficult to prosecute a person whose behavior fits the law under which he is charged. The examples I provided would be the easy, black and white application of the new reg for which a prosecutor might expect a plea because the defendant's chances are so poor.

Your observation illustrates why a reg that targets people who aren't dealers in any reasonable sense for prosecution or harassment is a problem.

[The Verminator]

Originally Posted by zukiphile

That's why a change to a broader standard that includes people who clearly are not dealers under the prior standard is disconcerting.

Without discounting the work of trial, it isn't especially difficult to prosecute a person whose behavior fits the law under which he is charged. The examples I provided would be the easy, black and white application of the new reg for which a prosecutor might expect a plea because the defendant's chances are so poor.

Your observation illustrates why a reg that targets people who aren't dealers in any reasonable sense for prosecution or harassment is a problem.

The standard has not changed.

It has always (Well, for over fifty years) been illegal to sell guns as a source of income without a license.

The illustrations from my experience were people who were doing exactly that.

And NOT going to trial saves a huge expense for the prosecutors.

[zukiphile]

Originally Posted by The Varminter

The standard has not changed.

Congress passed a law and ATF issued several hundred pages that indicate it will.

[44 AMP]

It has always (Well, for over fifty years) been illegal to sell guns as a source of income without a license.

No argument about that, the issue is that with the redefinition where anyone selling a gun for a profit COULD be used to classify them as dealers.

And NOT going to trial saves a huge expense for the prosecutors.

No, it doesn't save squat. Not in terms of money, anyway. Prosecutors don't get paid by the win. They are on salary. Every penny of the allocated budget gets spent, on one case or another.

Bureaucratic agencies don't "save" money (on anything). Not trying a case you don't think you can win doesn't save any money, it just allows the money to be allocated to something else.

And, frequently, if they don't spend ALL of their budget, the next year's budget is reduced. Hardly an incentive to save money.

Prosecutors do get evaluated on how many cases they win, compared to how many they bring to trial, but that is a different thing.

[mehavey]

Cut to the chase:

https://www.youtube.com/watch?v=GSxU345wu9A

are you a dealer.... or not?

[The Verminator]

Originally Posted by mehavey

Cut to the chase:

https://www.youtube.com/watch?v=GSxU345wu9A

are you a dealer.... or not?

After 20 minutes off my life that I'll never get back.........(wordy guy).

I conclude that these "New" rules will apply to about one percent of us average gun owners who buy and sell a gun once in a while.

No need for panic.

Unless you're selling guns for profit and doing it often and repetitively.

Which has been Illegal since 1968.

[44 AMP]

Unless you're selling guns for profit and doing it often and repetitively.

My concern is not for today, or even the near future, but some some point beyond that when "mission creep" bureaucratic kingdom expansion, and an administration with an agenda more strict than we currently have turn "often and repeatedly" into ONCE, or twice in a lifetime.

Likely? not now,
Possible? with the law/regulation in place as a foundation, absolutely possible.
and even likely when/if the administration judges they have enough political and public support to get away with it.

[The Verminator]

Well, I'm not going to continue to repeat myself.

[Aguila Blanca]

Originally Posted by 44 AMP

My concern is not for today, or even the near future, but some some point beyond that when "mission creep" bureaucratic kingdom expansion, and an administration with an agenda more strict than we currently have turn "often and repeatedly" into ONCE, or twice in a lifetime.

Likely? not now,
Possible? with the law/regulation in place as a foundation, absolutely possible.
and even likely when/if the administration judges they have enough political and public support to get away with it.

Isn't what we're discussing here "mission creep"? The federal law hasn't changed, but the BATFE is now changing the rules (moving the goalposts). We've seen this before, with bump stocks and 80% receivers. Today's completely legal toy is tomorrow's contraband.

[dogtown tom]

Aguila Blanca
The federal law hasn't changed,

Yes, it did.
I posted a link on page 1, here it is again:https://www.atf.gov/firearms/final-r...ealer-firearms

The final rule implements the provisions of the Bipartisan Safer Communities Act (“BSCA,” effective June 25, 2022), which broadened the definition of when a person is considered “engaged in the business” as a dealer in firearms (other than a gunsmith or pawnbroker). The Final Rule clarifies that definition. It will be published in the Federal Register and will be effective 30-days from publication.

but the BATFE is now changing the rules

True, because federal law changed.

[zukiphile]

Originally Posted by Aguila Blanca

The federal law hasn't changed, ...

Originally Posted by dogtown tom

Yes, it did.

There are at least three pertinent events.

The law changed on June 25, 2022 when JRB signed the Bipartisan Safer Communities Act changing a statutory definition.

JRB then signed EO 14092 in March of 2023 directing the AG to draft regs with an eye toward maximizing regulatory restriction under the BSCA.

Merrick Garland's response is the recently promulgated regs which do not appear to be only a neutral reading of the dubious BSCA, but an enthusiastic implementation of the policy goals JRB set forth in the EO. The regs don't just extend to transactions not conducted through an FFL, but can include sales that use a current licensee.

Since we will be subject to the regs, those are also a change in the "law" though not a change in the legislation. Just because Garland asserts that he is implementing provisions of the BSCA and that the final rule provides clarity, that doesn't mean he is correct on either point.

[The Verminator]

Maybe this will help.

From some posts here one would have to conclude the terror tactic is working.

https://www.nraila.org/articles/2023...ize-gun-owners

[44 AMP]

I would remind all that back when Biden was VP, he was asked, on camera, why the Fed govt prosecuted so few people for lying on the 4473 form, and his answer was "We don't have time for that."

Now that he's Pres, I wonder if/how, he found more time, or if this is just one more regulation change to look like he's really doing something, or just one more thing his administration "won't have time for".

[The Verminator]

Originally Posted by 44 AMP

I would remind all that back when Biden was VP, he was asked, on camera, why the Fed govt prosecuted so few people for lying on the 4473 form, and his answer was "We don't have time for that."

Now that he's Pres, I wonder if/how, he found more time, or if this is just one more regulation change to look like he's really doing something, or just one more thing his administration "won't have time for".

It's all politics and much ado about nothing.

Biden hasn't "found more time" he's just playing to his gun-hating base in an election year.

He's desperately trying to fire them up.

[georgehwbush]

/me still wonders what an infringement is !

[44 AMP]

me still wonders what an infringement is !

Not sure how the define words as you see fit crowd is doing it today, but when put into the Constitution it meant not treading on the boundaries of something.

The fringe on a flag or a carpet or a bonnet is the outside edges, so by prohibiting encroaching on the edges (infringment) the core of the matter would be protected.

many of us still hold that to be the correct definition.

Anti gunners often believe that as long as you are ALLOWED to own ONE gun, of some kind (single shot preferred) our rights are not being infringed.

OF course these are the same brilliant minds that demanded that the flintlock muzzle loading muskets actually used at Lexington and Concord on wall display HAD to have trigger locks put on them because the area was accessible to children.

[Aguila Blanca]

Originally Posted by 44 AMP

Anti gunners often believe that as long as you are ALLOWED to own ONE gun, of some kind (single shot preferred) our rights are not being infringed.

I sometimes wonder if they really believe that, or if they just want everyone else to believe it.

[veprdude]

It seems the major issue at hand is that with the new rule change, interpretation is subjective. Hence the removal of any objective standard such as a minimum number of guns sold to be considered a dealer. The use of "predominantly earn a profit" paints such a gray area that most anyone could be caught up in the dragnet if it's the ATF's goal to nail that person. Sure 99% of people will probably skate right by but if they want someone, this is the part that has the hooks. How does one prove that a purchase and later resale is not to "predominantly earn a profit"? Many see guns, especially collectible guns, as a store of value. If you by a WW2 1911 today and 30 years down the line sell it, it will be impossible to not "profit" off the sale due to inflation, etc. How about that rusty bolt action in the corner of the store that you put elbow grease into and restore. Decide 25-06 ain't your thing. $100 turns into $500 and BAM! You're a dealer.

On the flip side, say you were to go around gun stores and buy guns then take them to a gun show and purposefully lose money on every sale 100 times in a day. Are you an unauthorized dealer?

[natman]

Originally Posted by veprdude

It seems the major issue at hand is that with the new rule change, interpretation is subjective. Hence the removal of any objective standard such as a minimum number of guns sold to be considered a dealer. The use of "predominantly earn a profit" paints such a gray area that most anyone could be caught up in the dragnet if it's the ATF's goal to nail that person. Sure 99% of people will probably skate right by but if they want someone, this is the part that has the hooks. How does one prove that a purchase and later resale is not to "predominantly earn a profit"? Many see guns, especially collectible guns, as a store of value. If you by a WW2 1911 today and 30 years down the line sell it, it will be impossible to not "profit" off the sale due to inflation, etc. How about that rusty bolt action in the corner of the store that you put elbow grease into and restore. Decide 25-06 ain't your thing. $100 turns into $500 and BAM! You're a dealer.

From the ATF Q&A:
https://www.atf.gov/rules-and-regula...rspdf/download

Q. If a person sells their personal firearm and actually makes a profit, does that equate to being engaged in the business as a dealer requiring a license?

A. No. A person actually “selling at a profit does not equate to engaging in the business” because a showing of actual profit, whether or not expenses or inflation are considered, is not required to be engaged in the business. Rather, it is the predominant intent of obtaining pecuniary gain from sale or disposition of firearms that matters.

Originally Posted by veprdude

On the flip side, say you were to go around gun stores and buy guns then take them to a gun show and purposefully lose money on every sale 100 times in a day. Are you an unauthorized dealer?

Persons who operate a part-time firearms business that earns a certain dollar amount per year, or even a firearms business that loses money due to poor salesmanship or lack of demand, would still be engaged in the business if they devoted time, attention, and labor to dealing with the predominant intent to profit through repetitive purchases and resales of firearms. It is the seller’s motivation that determines whether a person needs a license, not the number of sales or amount of profit.

Now if you purposefully lose money, your intent to profit might not apply, but I wouldn't like to try and argue the point in court. The point is that it doesn't matter whether or not you actually make a profit. The crucial point is whether or not you are selling guns with the intent of making a profit.

A couple of caveats: This is all subject to interpretation by the "zero-tolerance" Biden administration ATF.

And it's subject to "rebuttable presumption" which sounds a lot like "guilty until proven innocent" to me.

[44 AMP]

It is the seller’s motivation that determines whether a person needs a license, not the number of sales or amount of profit.

Why does this remind me of Monty Python???

[georgehwbush]

so buying a truck load of mellons at $1 ea; driving 20 miles down the road and selling them for $1 ea. just means you need to buy a bigger truck for that purpose if you want to make money... life sure gets complicated !

(Anti gunners often believe that as long as you are ALLOWED to own ONE gun, of some kind (single shot preferred) our rights are not being infringed.)
you forgot three important points there, must be single shot yes, 1.must also be a shotgun or smooth bore, and 2.must also be black powder only. then it's ok for you to have it.... but "don't you dare mess with my paid security's sub-machine pistole just who do you think you are"

it's sickening how scared of their own shadow most anti-gunners are. but that's just an opinion, and it's mine.

[44 AMP]

Never forget the elitist mindset, "all for me, none for thee!"

I'm still trying to come to terms with the ATF (or anyone) being a mind reader, so that they KNOW what your intent is.

"the mind of man is as trackless as a bog at midnight", and I find the ATF's "explanation" to be even more confusing than that.

How many sales you make doesn't matter, so even one and you might be a dealer. Whether you make a profit, or not doesn't matter, you might be a dealer. What matters is what they THINK you intend. I find that more than a bit disconcerting.

Witches float! (an unproven assumption, treated as if it were fact)
Wood floats! (an actual fact)
There fore, witches must be made of wood! (yeah, riiight..)
what else floats??
A duck!!
SO a witch, made of wood, must weigh the same as a duck, so it can float
see where this goes???

How is the ATF NOT doing the same thing with their logic??

Why not give us a set number or other verifiable limit? Why not say, "if you do X then you are in violation and if you do not do X, you are not in violation"???

Why say "if you intend to do X, whether you actually do it, or not, you could be in violation???


Get the ax, Eugene, its a TRAP!

[mehavey]

Why not give us a set number or other verifiable limit ?

Because that would limit the ability to '...bend things to what they want at any moment in time.'
It's then up to the individual to dig themselves out of the Tiger Trap.
Quite a deterrent to even lawful activity I might add.
But then that may be in the whole objective.

Never forget the lesson of the Red Queen:
Sentence first, verdict afterwards

.

[JohnKSa]

Why not give us a set number or other verifiable limit? Why not say, "if you do X then you are in violation and if you do not do X, you are not in violation"???

They do tell you what is a violation.

If you buy guns (or a gun) with the intent to resell for profit, then you are a dealer.

They don't give you a number because you could buy 1000 guns and then sell them later, possibly even as a profit and if you bought them for your personal collection and then later decided you didn't want them any more, then you are not a dealer.

If my father was a collector and leaves me 700 guns (as happened to a friend of mine) then you will certainly make money selling them, but you still aren't a dealer.

Imagine if they did set a number, and you're at your limit and someone leaves you 20 guns you don't want. Now you're stuck with them forever. Or maybe you see a gun you really, really want, but don't have the money for. You can't sell any more of your guns because you're already at the limit of what you can sell without legally becoming a dealer. From that point on, you can't sell any gun you own--you can buy more but you're stuck with every single gun you own and every single gun you buy after you hit your limit.

In practice, if you buy one gun with the intent to resell and aren't stupid, it's going to be difficult for them to prove their case--realistically they aren't going to bother to come after anyone for that unless someone publicly admits to breaking the law.

On the other hand, if you regularly buy and sell guns, and that comes to the BATF's attention, they are going to take a look at you and you will need to be able to give them a story that fits the evidence and shows you aren't a dealer. You will want to read the rule carefully and make sure you aren't creating an evidence trail that will make it impossible for you to demonstrate that you aren't a dealer.