How to Close "The Loophole"... White House Style

[mehavey]

> ...may come by mid-January, when President Barack Obama is
> expected to issue an executive order requiring everyone "in the
> business" of selling firearms to perform background checks
http://www.bloomberg.com/news/articl...d-the-loophole

And since "in the business" can merely be a wave of the bureaucratic "Re-interpretation" of existing Regulation (the troublesome "R&R" of anything too tough to get agreement on actual Law), this approach would seem to be a lock. **

What's "in the business"? One might likely have to look no further than the latest in Seattle & Wash State.
http://thefiringline.com/forums/show...49&postcount=8


** Naturally, there will be a comment period (pronounced "fait accompli"

[ronl]

Anyone in the business of selling firearms is an FFL holder, and since it is already a requirement for such to perform background checks, you can bet that there will be some creative thinking used to interpret any new "law".

[Chip Saunders]

That is what I do not understand. The law already states that you must hold an FFL and do checks if you are "in the business". Now, BATF has been free to interpret "in the business". Obama is going to have to define "in the business" by executive order somehow.

What about the retiree who sells a old shotgun - one time thing. Is Lord Obama after him??

I honestly believe that Obama thinks that at gun shows there are tables and tables of people selling dozens and dozens of guns as private individuals without the check. Dunno about other states but in Alabama that is just no so.

I believe Obama is going to do an end run around the truth. That is he is going to issue some order like "in the business" means 12 guns or more in a single year. Then claim he has saved hundreds of people from violent gun deaths by closing a huge loophole that simply does not exist. He is good at those things.....

[johnwilliamson062]

I have heard here and other places '50 sales a year' is being thrown around as a line that puts someone on the "in the business" side of things.
I would have assumed ATFE wanted to talk to you now if they got wind you were regularly selling 50+ guns a year.

[mehavey]

I honestly believe that Obama thinks....

Stop right there (error #1)

It's how you feeeeeeeeelll.
(and don't you forget it)

[dajowi]

"I believe Obama is going to do an end run around the truth." I just wish he'd run away.

[2ndsojourn]

It's not a loophole. It's a specific exemption written into the law.

[mehavey]

It's not a loophole. It's a specific exemption written into the law.

I'm sorry, but you have stepped into the expanding 'PC' quagmire.....
What part of Truth-is-no-Defense do you fail to comprehend?


"We can't wait for Congress to do its job,
so where they won't act, I will."

[steve4102]

What does "engaged in the business" mean?

The term “engaged in the business,” as applicable to a firearms dealer, is defined as 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, but such term shall not include a person who makes 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.

http://www.nibin.gov/content/what-do...-business-mean

The first thing he will have to do, is direct the ATF to change the definition of "Engaged in the business".

Shouldn't be to tuff, just direct the ATF to do what he wishes them to do.

[doofus47]

PHP Code:

An ironic twist is that many of the attendees at SHOT each year are federally licensed bricks-and-mortar gun dealers who sometimes concede privately that they have no real problem with all gun sellers being forced to do background checks. These full-time retailers resent competition from casual unlicensed sellers at gun shows. 


Um, I just have no idea where to start with flashbacks from my journalism 10 1 class:
1. The piled on indistinct adjectives "many" "sometimes" "no real problem" that reduces meaning to obscurity...
2. "concedes"... Mmmm that means someone made an assertion. Did the reporter make an assertion? What would that be. Oh, please don't keep us hanging? Reporting half of a conversation isn't reporting.
3. ironic twist. So.. the twist is that "many sometimes" of the full-time dealers see expanded background checks as good b/c the people who are buying at gun shows go away from their booths because of the background check? So, they expect those people to suddenly come to them now? Not seeing the reasoning nor the twist.

[Webleymkv]

This is the problem with vaguely written laws: they leave interpretation open to whatever administration happens to be in power at the time and their hand-picked bureaucrats. Much like the loathed (and rightly so IMHO) "sporting purpose" clause, the fact that "engaged in business" is not defined in a clear, concise, concrete manner leaves the door open for President Obama, or any other president for that matter, to direct the ATF to define "engaged in business" in any manner he sees fit.

While I'm sure it would ruffle some feathers around here, I would much rather see "engaged in business" concretely spelled out in law as "more than X number of guns per month for Y consecutive months" because at least then we would not have to worry about the definition changing whenever the political wind blows a different direction. As it stands now, President Obama could direct the ATF to find that selling more than one gun every 5 years constitutes "engaged in business" and he would be within the law to do so.

Honestly, there are many travesties in the 1968 GCA not the least of which is that so many things can be made instantly illegal by arbitrary rulings of unelected bureaucrats in the ATF (and those rulings can be prompted by executive orders). I am firmly of the belief that a law should always be as black-and-white as possible as vagueness almost always leads to abuse of the law and unintended consequences sooner or later.

[gc70]

Originally Posted by steve4102

The first thing he will have to do, is direct the ATF to change the definition of "Engaged in the business".

Shouldn't be to tuff, just direct the ATF to do what he wishes them to do.

The only problem for the ATF is that the definition of "engaged in the business" is written into the law -18 U.S.C. 921(a)(21)- and regulations -27 C.F.R. 478.11. The ATF can clarify or interpret the law, but has to work within the language of the law.

Another hurdle for the ATF is several decades of case law in which the government has consistently argued that it was not Congress' intent to establish a specific number. Any legal challenge to a revised regulation or new interpretation would find support in those prior cases.

[mehavey]

I saw "Law" mentioned in each of the two preceding paragraphs.
We still haven't learned that this Administration doesn't really care.

They will act... and then let the courts straighten it out after years of litigation & appeals.
Meanwhile,the damage has been done.

[doofus47]

kilimanjaro

The term 'professional journalist' is an oxymoron, it would seem.

Well, to be fair, you only have to be paid to be a professional, not talented.
And, if you think that's a high bar, we all remember what the world's oldest profession is reputed to be...

[FITASC]

I honestly believe that Obama thinks that at gun shows there are tables and tables of people selling dozens and dozens of guns as private individuals without the check.

Happens all the time where I live, including at flea markets.

[mehavey]

Additional/Newer Info:

> It's not clear whether Obama has settled on final language yet.
> But as one of the major proponents of a change, Everytown has
> recommended adding several factors to the definition — including
> selling guns in their original packaging, reselling a gun shortly after
> acquiring it, maintaining a certain quantity of guns for sale or
>selling more than 25 guns a year — as possible signals that
> someone needs a license.
http://www.politico.com/story/2015/1...#ixzz3vv8y0I6e

Now US_CODE defines business
> (C) as applied to a dealer in firearms, as defined in section 921(a)(11)(A),
> 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, but such term shall not include a person who makes
> 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;

As one can see.... what EveryTown wants as the definition is in gross conflict with the Law. But that won't matter.
"We'll just let the courts settle it" while intimidating whoever even thinks about selling a gun in the meantime.

And as the CFR notes: Dealer:
> " Any person engaged in the business of selling firearms at wholesale or retail;
> any person engaged in the business of repairing firearms or of making or
> fitting special barrels, stocks, or trigger mechanisms to firearms; or any
> person who is a pawnbroker. The term shall include any person who
> engages in such business or occupation on a part-time basis.

Anyone is THIS Justice Dept can and will drive a truck though those holes

[gc70]

Originally Posted by mehavey

As one can see.... what EveryTown wants as the definition is in gross conflict with the Law.

If you can stomach reading the Everytown document, much of it is based on how courts already apply the law.

The regulation should codify the factors that courts use to determine if a person is “engaged in the business” of selling firearms. These common-law factors include selling guns unused or still in their original packaging, the repetitive sale of guns, selling guns for profit, re-selling guns shortly after obtaining them, selling multiple guns of the same make and model, and expressing a willingness or ability to obtain guns upon request.

[johnwilliamson062]

...and expressing a willingness or ability to obtain guns upon request.

Isn't that already a no no? I mean, if ATFE gets wind of it it wouldn't be too hard for them to do a straw buy sting.

[gc70]

Originally Posted by johnwilliamson062

Isn't that already a no no? I mean, if ATFE gets wind of it it wouldn't be too hard for them to do a straw buy sting.

Yes, taking orders from buyers is a reasonable indicator of being "engaged in the business."

A good part of what the gun control crowd is pushing for in a clarification of "engaged in the business" is nothing more than indicators that are already broadly used in court cases. Those things are eye-candy and distractions from what we should focus on, which are proposals for meaningful, new indicators such a specific numbers of sales per year or a specific holding period.

[kilimanjaro]

So if I sell that still-in-the-wrap unissued Lee-Enfield I bought as an investment 30 years ago for more than the $165 I paid for it, does that make me a dealer? That's three of the criteria right there, it's new, in original packaging, and for profit.

Lucky for me I didn't buy more than one to tuck away, that would have fulfilled all the criteria.

I'm glad the government is stepping up to the plate and preventing gun crime, I could have armed an entire terror cell with high-powered weapons of war.

[Tom Servo]

The big question is, "can he get away with this?"

Executive orders are a murky and poorly-defined thing. They don't exist in the Constitution. We had a discussion here for anyone who wants to brush up.

Essentially, the President can't use them to make or alter law. That should stop this in its tracks. Yet, he's going ahead with it anyway.

A court challenge is inevitable, and SCOTUS hasn't been really fond of executive overreach. I'm not sure why the President thinks this will fly.

Even if it does, enforcement is going to be difficult at best.

[mehavey]

A court challenge is inevitable, and SCOTUS hasn't been really fond of
executive overreach. I'm not sure why the President thinks this will fly.

It doesn't have to fly. It just has to threaten good people with criminal felony records long enough to "change the culture"

Even if it does, enforcement is going to be difficult at best.

See above.
Thuggery its best.

[johnwilliamson062]

It will probably take until after the next election to run anything down in court. I'm sure there will be some tie in with all the Democratic candidates so whoever gets the nomination can claim part of the victory while campaigning this year.

[pnac]

This is just a warm-up, gonna be a loooong year! Death by a thousand cuts.

[Tom Servo]

It will probably take until after the next election to run anything down in court.

The timing strikes me as opportune. The President can ride out his last months claiming he "did something" about guns, and it won't be overturned until he's out.

It's callous and dishonest, but...