New Background Check Rule

[s3779m]

Originally Posted by ligonierbill

Biden wanted to say he closed the (nonexistent) "gun show loophole", and it seems the rulemaking attempted to say in effect, "If you're selling at a gun show, you're a dealer." But they can't say that. They have to stay within spitting distance of the statute. And SCOTUS seems to be intent on redefining that. So they try to walk the line, then add a Q&A that tries to answer all the "what if's". Of course, that is not possible. And most Americans don't trust the government, often with good reason. So, we'll just have to see how it plays out in actual enforcement and litigation.

Meanwhile, gun shows already ain't what they used to be. Is our doddering POTUS succeeding in shutting them down?

I believe you're on the right track. I'm no lawyer, no fortune teller, not a ton of education, but I have been around the block enough times to ever believe the government says what it means. Here's a wild ass guess, this law is just another step towards a national gun registry. Next "rule" will be every purchase/sale will have to have a background check. Every gun you own will have to have proof that you and that gun went through the process. There is only one way to prove that, a national gun registry. Yeah, that's pretty far fetched except for the fact that there are some in congress right now who have said that, and from what I have seen, "shall not be infringed" means nothing to many in power.

[zukiphile]

Originally Posted by s3779m

That is the problem with this law, the vagueness.

Is that the problem or the feature?

Merrick Garland is a smart fellow. If the regs only mean don't be an unlicensed dealer in arms, he would know how to have written that. Of course, where the BSCA has changed the definition of the population who are dealers, just saying that people shouldn't be unlicensed dealers doesn't address meaningfully the questions raised by Garland, the EO and the Act.

The Department does not agree with commenters that the undefined terms in the rule are vague. In the absence of specific definitions, readers should use the ordinary meaning of these statutory terms and other words in the regulatory text. This includes the definition of the term “occasional,” which means “infrequent,” or “of irregular occurrence,”123 and the term “repetitively” as it applies to a person engaged in the business as a dealer, which means that a person intends to or actually does purchase and resell firearms again. With regard to the comment that the term “repetitive” should be limited to a period of time, again, this term, like the term “occasional,” should be read consistently with its ordinary meaning.124 Consistent with that ordinary meaning, a person is less likely to be understood as “repetitively” selling firearms if they do so twice over five years than if they do so several times over a short period.

https://www.atf.gov/rules-and-regula...earms/download at p 89.

According to Garland, you are less likely to be prosecuted for selling twice in five years that if than if you do so "several times over a short period", but he does not rule out a life altering prosecution over it. Without the legislative limit on the dealer population of those with "a principle objective of livelihood", whether you are prosecuted will turn on what the executive branch thinks is occasional, repetitive and short. Can he tell you what those words will mean in the specific context of this reg? His magic eight ball says Better not tell you now.

If Merrick Garland can't provide a more narrow and precise explanation, then it is unreasonable to expect anyone else to understand the regs more precisely.

[Aguila Blanca]

Originally Posted by zukiphile

If Merrick Garland can't provide a more narrow and precise explanation, then it is unreasonable to expect anyone else to understand the regs more precisely.

Thank you for weighing in as an actual, practicing attorney. When laws (and regulations) are intentionally written vaguely, I think it's prudent for us to sit up and take notice.

[JohnKSa]

That is the problem with this law, the vagueness.

You claimed that there is something in the law that puts a person in jeopardy for selling a gun to a friend. That's not a complaint that the law is vague, that's a specific claim.

Please quote the portion of the law that indicates that a single sale of a privately owned firearm to a friend makes a person subject to arrest. The law includes the terms 'repetitive' and 'repetitively' which makes it very difficult to interpret it as referring to a single sale.

If that weren't enough, it also specifically states that a single sale, in the absence of other evidence would not qualify as dealing in firearms.

According to Garland, you are less likely to be prosecuted for selling twice in five years that if than if you do so "several times over a short period", but he does not rule out a life altering prosecution over it.

To be fair, that's an example taken from an explanation that the term 'repetitively' should be taken to have its ordinary meaning as opposed to a specifically provided legal definition. He could have just as easily said: "The longer the interval and the fewer the sales, the less likely the behavior is to be interpreted as repetitive." The meaning would be the same.

Furthermore, the repetitive nature of the sales is neither the primary nor the sole criterion for determining if a person is dealing in firearms, so it's inaccurate to make it seem like taking "predominately for livelihood" from the law makes 'repetitive/repetitively' the only remaining criterion.

Look, I'm not in favor of the new law, but I don't think that you're doing anyone any favors by taking a casual example from one explanation in the 80 something pages comment section and making it seem like it is not only part of the law but is providing the sole criterion for prosecution under the new law. I think it would be a lot more helpful to talk about what the law does say and how it says it. If you are honest about it, you will have to admit that 2 sales in 5 years is not going to put a person in jeopardy of prosecution in the absence of other evidence.

Ok, folks. I'm going to, once again, strongly suggest that people who find this topic of interest, should read the actual rule for themselves. It is not difficult to understand, and there are pages and pages of explanatory text for those who do need a bit of help.

[zukiphile]

Originally Posted by JohnKSa

You claimed that there is something in the law that puts a person in jeopardy for selling a gun to a friend. That's not a complaint that the law is vague, that's a specific claim.

The claim is that a law so vague that one can't be sure when he isn't at risk of prosecution leaves him in jeopardy.

Originally Posted by JohnKSa

Please quote the portion of the law that indicates that a single sale of a privately owned firearm to a friend makes a person subject to arrest. The law includes the terms 'repetitive' and 'repetitively' which makes it very difficult to interpret it as referring to a single sale.

If that weren't enough, it also specifically states that a single sale, in the absence of other evidence would not qualify as dealing in firearms.

Emphasis added. Properly understood that means that not even a single sale is required to be found to be an unlicensed dealer; it's the other evidence that may make you a defendant.

Originally Posted by JohnKSa

To be fair, that's an example taken from an explanation that the term 'repetitively' should be taken to have its ordinary meaning as opposed to a specifically provided legal definition. He could have just as easily said: "The longer the interval and the fewer the sales, the less likely the behavior is to be interpreted as repetitive." The meaning would be the same.

Furthermore, the repetitive nature of the sales is neither the primary nor the sole criterion for determining if a person is dealing in firearms, so it's inaccurate to make it seem like taking "predominately for livelihood" from the law makes 'repetitive/repetitively' the only remaining criterion.

Of course, no one has done that. I noted that the BSCA removes that element, a limit on its scope, from the definition. Garland's "clarification" is littered with terms that lack specific meaning unless compared to a real standard for frequency, number or duration, but the ones in the paragraph I quoted were occasional, repetitive and short. On the last one, you have to see the humor in his unwillingness to describe how short a period is too short to trigger his attention when he is writing that you are less likely to have your life ruined if you sell twice in five years. I think the people who wrote that had at least a sensible chuckle to themselves over it.

Originally Posted by JohnKSa

Look, I'm not in favor of the new law, but I don't think that you're doing anyone any favors by taking casual examples from definitions/explanations in the comment section and making them seem like they are not only part of the law but are providing the sole criterion for prosecution under the new law.

I haven't done that. The USAG's explanation of the regs isn't a casual example, but his public explanation of the regs he produced in response to an EO directing him to develop a plan to increase background checks. Since he heads up the giant organization tasked with prosecution of the law, his opinion is consequential.

Originally Posted by JohnKSa

I think it would be a lot more helpful to talk about what the law does say and how it says it. If you are honest about it, you will have to admit that 2 sales in 5 years is not going to put a person in jeopardy of prosecution in the absence of other evidence.

Emphasis added. In other words, two sales in five years can lead to prosecution depending on the sense of the executive branch as to some terms that Garland declines to invest with specificity or the safe harbor of objective criteria. He has metaphorically announced that he understands speeding to be when one drives too fast. That's not a road a lot of people want to take.

I understand that you aren't in favor of the law. Neither of us knows how the expansion of executive authority will manifest in enforcement.

[s3779m]

ou claimed that there is something in the law that puts a person in jeopardy for selling a gun to a friend. That's not a complaint that the law is vague, that's a specific claim.

Please quote the portion of the law that indicates that a single sale of a privately owned firearm to a friend makes a person subject to arrest. The law includes the terms 'repetitive' and 'repetitively' which makes it very difficult to interpret it as referring to a single sale.

From the law,

by eliminating the
requirement that a person’s ‘‘principal
objective’’ of purchasing and reselling
firearms must include both ‘‘livelihood
and profit’’ and replacing it with a
requirement that the person must intend
‘‘to predominantly earn a profit.’’ The
BSCA therefore removed the
requirement to consider income for
‘‘livelihood’’ when determining that a
person is ‘‘engaged in the business’’ of
dealing in firearms at wholesale or
retail. The definition of ‘‘to
predominantly earn a profit’’ now
focuses only on whether the intent
underlying the sale or disposition of
firearms is predominantly one of
obtaining pecuniary gain.

That leaves a whole lot of wiggle room. I'm guessing a liberal judge just might interpret different than a conservative judge. Point being, where as maybe you can say with certainty that individual sales are excluded, I am still not seeing that. I see where the law allows the ATF to go after pretty much anyone they want.

[44 AMP]

If you are honest about it, you will have to admit that 2 sales in 5 years is not going to put a person in jeopardy of prosecution in the absence of other evidence.

TODAY.

One of the many issues I have with this is that the regulations state (vaguely) what the ATF can do, and do not state what they cannot do.

Two sales in five years isn't enough to bother with, TODAY, but who can say what they will do in the future. If the law, and their regulations to not specifically forbid it, then they can do it, when and if they feel like doing it.

The ATF has a long history of changing their interpretations of their regulation, and sometimes changing their regulations to better match the change in interpretation, sometimes not.

I do not place great faith in the opinions of the ATF director. They do carry some weight, but it is not permanent. It only lasts as long as that guy doesn't change his opinion, or until a different person holds that position, at which time, all bets are off.

It disturbs me that teams of (assumedly) educated people (do they hire anyone without a college degree these days?) can't write a simple regulation that clearly informs "the great unwashed" what the limits are, and aren't without needed 30+ pages of "explanations".

[zukiphile]

Originally Posted by 44 AMP

I do not place great faith in the opinions of the ATF director. They do carry some weight, but it is not permanent. It only lasts as long as that guy doesn't change his opinion, or until a different person holds that position, at which time, all bets are off.

And that isn't what we should mean when we use the word law, because it is something closer to authority.

Law should be something that at least in principle each of us should be able to understand and observe. Don't steal is an old law comprehended by children and illiterates without an explanatory/obfuscatory appendix. At some point a body of law becomes sufficiently complex and detached from ethical intuition that understanding its application becomes a niche interest. As authority becomes more detached from a wider and more common understanding of law, that authority begins to look more arbitrary and unfair.

I saw a thread here recently about a fellow wanting to buy his daughter a firearm in a way that doesn't break a law. A lot of the confusion arises from the tension between a sale to a dangerous criminal (an ethically intuitive prohibition) and a sale that runs afoul of the language of the 4473. The answer isn't complex, but the tension between doing something arguably "wrong", buying a gun for a felon, and running afoul of federal rules disorients people. The resulting submission by confusion isn't an ideal condition.

There is a second way a nebulous expansion of power in the regs isn't benign. Let's suppose a few years pass and the DOJ stays very conservative in prosecuting unlicensed dealers. At some point, someone is going to use a gun he bought from an unlicensed individual in an unfortunate way and the hysteria will rise to close the "loophole" left in the code and reg. We've already implicitly accepted federal authority over unlicensed individuals in intrastate transfers, so eliminating them entirely is fair "if it only saves one life", right? Then what is the [principled objection to a UBC? It's an incremental gesture in the direction of a future UBC, one bite of the elephant.

[dogtown tom]

The Verminator

Bill of sale? Yes, protect yourself.

A bill of sale may offer some comfort to a buyer, showing that he has purchased and paid $$$ for an item.........but no way in heck does it "protect" the buyer from buying a stolen gun or in any way protect the seller from anything whatsoever.

In many states you are now required to get ID from buyer and keep that information.

Many? How many? Other than UBC states name them.

If that gun turns up at the scene of a crime you want to be able to show it was legally sold to a qualified buyer.

Oh brother.
If you aren't running an FBI NICS check, how the heck do you know the buyer is not a prohibited person?
How the heck do you know the buyer wont hand that gun to his buddy the criminal before dark?

[dogtown tom]

s3779m
Here's the problem I have with the new ruling, first off, we have laws concerning everything you mentioned above. If the law needed different wording to be clear, that is congress's job.

Not true. Read the Administrative Procedures Act.

In the ATF's rule, there was no attempt for clarification, no attempt for everyone to understand.

Nonsense.
ATF even posted a list of Q&A's regarding each portion of this rule.

Two, even with all the voices proclaiming what the ATF meant, I have yet to see from the ATF what THEY DID NOT MEAN.

Maybe because you didn't read it?
It's pretty clear to me.

[dogtown tom]

mehavey And no one -- at least no ordinary/common man -- has a clue what it really means in terms of ordinary practices supposedly within the law ... before.

I do. And I'm not an attorney.

Than simply answer the questions posed in Post #110 ... if it's really as simple as that.

The question posed in #110 are easily answered by reading https://www.atf.gov/firearms/final-r...ealer-firearms
Simple as that.



All of those questions have posed by others, on other guns forums, to no consistent answer.

[dogtown tom]

s3779m
I have seen several posts on this forum which tell me that this law and the ATF are not going after me for selling a gun to a friend, or a stranger. But I have yet to see where the ATF has said that. But I would suggest to anyone, if a friend wants to buy a gun from you that you no longer want, don't sell it to him in the parking lot of a gun show.

Read my post #81
You'll find this nugget:

Q – Does the final rule require every private sale of a firearm be processed through a licensed dealer?
A – No. Individuals may continue to make intrastate private sales without a license provided they do not rise to the level of being “engaged in the business,” and the transactions are otherwise compliant with law.

and....

Conduct not presumed to be engaged in the business

Q – Does the final rule provide examples of when a person would not be presumed to be engaged in the business requiring a license as a dealer?
A – Yes. Under this final rule, a person would not be presumed to be “engaged in the business” requiring a license as a dealer when reliable evidence shows the person transfers firearms only:
o As bona fide gifts;
o Occasionally to obtain more valuable, desirable, or useful firearms for their personal collection;
o Occasionally to a licensee or a to a family member for lawful purposes;
o To liquidate (without restocking) all or part of their personal collection; or
o To liquidate firearms
o That are inherited; or
o Pursuant to a court order; or
o To assist in liquidating firearms as an auctioneer when providing auction services on commission at an estate-type auction.
The final rule provides objectively reasonable standards for when a person is presumed to be “engaged in the business” to strike an appropriate balance that captures persons who should be licensed, without limiting or regulating activity truly for the purposes of a hobby or enhancing a personal collection.

Q – Does the final rule place additional restrictions on law-abiding citizens who wish to transfer firearms to family or friends, or to sell all or part of a personal collection of firearms?
A – This rule does not place additional restrictions on law-abiding citizens who occasionally acquire or sell personal firearms to enhance a personal collection or for a hobby. This rule does not prevent law abiding persons from purchasing or possessing firearms, from selling inherited firearms, or from using their personal firearms for lawful purposes such as self-defense, reenactments, or hunting. The rule includes a non-exhaustive list of conduct that does not constitute being engaged in the business and that may also be used to rebut the presumptions, as well as other examples of conduct that does not demonstrate a predominant intent to profit.

[dogtown tom]

JohnKSa
Ok, folks. I'm going to, once again, strongly suggest that people who find this topic of interest, should read the actual rule for themselves. It is not difficult to understand, and there are pages and pages of explanatory text for those who do need a bit of help.

Sadly, its easier not read.

[s3779m]

Originally Posted by dogtown tom

Not true. Read the Administrative Procedures Act.

Writing laws is up to congress not an agency. SCOTUS has stated so.


[/QUOTE]
Nonsense.
ATF even posted a list of Q&A's regarding each portion of this rule.[/QUOTE]

Proves my point, had the rule been written clearly the upteen pages telling us what they meant would have been unnecessary


[/QUOTE]
Maybe because you didn't read it?
It's pretty clear to me.[/QUOTE]

Wrong. I did read it. What I saw gave one hell of a lot of leeway to officers as to what they can arrest for. That leeway is so wide open it can change daily AND STILL BE WITHIN THE RULE. I personally do not want people with the power to arrest to have that much leeway, especially when it is clear to me the only part that is not vague about the rule is the words "shall not be infringed" does not mean anything to the agency that wrote the rule.

[Stuohn101]

What is "occasionally"

[JohnKSa]

Emphasis added. Properly understood that means that not even a single sale is required to be found to be an unlicensed dealer; it's the other evidence that may make you a defendant.

The evidence you're talking about that would make a single sale into dealing firearms without a license is EXACTLY the same as it would have been before this rule was enacted.

The rule is clear that a single sale in the absence of other evidence is not going to be an issue. Furthermore the rule and the explanation use "repetitive/repetitively" hundreds of times. There is no benefit to trying to scare people into thinking that this rule puts them at risk if they sell a gun "they no longer want" to a friend.

Presumably you have read the rule, and with your background you know what I'm saying is true.

On the last one, you have to see the humor in his unwillingness to describe how short a period is too short to trigger his attention when he is writing that you are less likely to have your life ruined if you sell twice in five years. I think the people who wrote that had at least a sensible chuckle to themselves over it.

That's a pretty obvious mischaracterization. You have seized on a single casual example provided in the course of a rather long explanation and turned it into something it's not. Anyone who takes the time to read the rule and commentary, or even who looks through it and reads significant portions of it will see that what I'm saying is true. Again, there's no benefit to trying to freak people out by making this rule change into something it isn't.

Emphasis added. In other words, two sales in five years can lead to prosecution depending on the sense of the executive branch as to some terms that Garland declines to invest with specificity or the safe harbor of objective criteria.

There is no need for any "in other words".

What I posted is absolutely true as it stands, without any need for restatement or additional explanation. "If you are honest about it, you will have to admit that 2 sales in 5 years is not going to put a person in jeopardy of prosecution in the absence of other evidence."

The "other evidence" is critical. Multiple sales, even frequent multiple sales isn't enough to make the case.

What I would be interested in is an explanation of the new presumptions. The law says that they are not to be used in criminal prosecutions--so what is their impact?

Point being, where as maybe you can say with certainty that individual sales are excluded, I am still not seeing that. I see where the law allows the ATF to go after pretty much anyone they want.

You stated that there is now something in the law that makes a person subject to arrest for selling a gun they no longer want to a friend. The fact is that there isn't anything in the new law that says that. You need to read the law. Then if you have questions about specific parts of the law and post them here, someone can answer them or point you to the commentary/explanation section that provides insight.

Again, I'm not in favor of the law, but there's no point in trying to make it into something it's not. It's bad enough as it is without making stuff up.

TODAY.

YES, today. Tomorrow, monkeys may fly. There's all kinds of crazy stuff that MAY happen, even all kinds of crazy stuff that is likely to happen. Look, there's plenty of confusion here without trying to speculate about what's going to happen down the road.

... the tension between doing something arguably "wrong", buying a gun for a felon, and running afoul of federal rules disorients people.

The sad reality is that we are awash in laws against doing things that are "wrong" only because of the laws that exist to make them "wrong". From a practical perspective, that's moot. In practice, if you break a law, it doesn't matter if it's against doing something that's wrong only because of the law vs. something that's generally considered to be "immoral/wrong/evil". The prosecution will be based on the evidence and the law.

What is "occasionally"

There's a fairly extensive discussion of this in the rule and the commentary included in it. Seriously, if this topic interests you, read the rule.

[zukiphile]

Originally Posted by JohnKSa

YES, today. Tomorrow, monkeys may fly. There's all kinds of crazy stuff that MAY happen, even all kinds of crazy stuff that is likely to happen. Look, there's plenty of confusion here without trying to speculate about what's going to happen down the road.

I wouldn’t complain about people exercising foresight. Ordinary foresight can include assessing whether a power handed government will go unused. Whereas the possibility of monkeys flying is remote, history indicates that a power doesn't go unused indefinitely, and is too often used even when it isn't granted.

Originally Posted by JohnKSa

The evidence you're talking about that would make a single sale into dealing firearms without a license is EXACTLY the same as it would have been before this rule was enacted.

The rule is clear that a single sale in the absence of other evidence is not going to be an issue.

How do you think a person sells a gun where there is no evidence other than a sale? It’s the other elements that people are discussing.

If this is what your exhortation to read the rule indicates, your post illustrates why just reading the government’s explanation doesn’t suffice. Since there is a legislative change, an EO, and a regulatory change, addressing questions with

Originally Posted by JohnKSA

read the rule

and

Originally Posted by JohnKSa

It's really as simple as that.

…is not responsive.

You are aware that

Originally Posted by JohnKSA at #77

It's about intent, not about the actual outcome.

Indeed. You are aware that one can be a dealer under the rule without having sold a single firearm.

We can glean that the evidence required to find one engaged in the business is different after the BSCA, EO and regs because the elements for being engaged in the business are different.

Originally Posted by JohnKSA

I think it would be a lot more helpful to talk about what the law does say and how it says it. If you are honest about it, you will have to admit that 2 sales in 5 years is not going to put a person in jeopardy of prosecution in the absence of other evidence.

There is no need for any "in other words".

What I posted is absolutely true as it stands, without any need for restatement or additional explanation. "If you are honest about it, you will have to admit that 2 sales in 5 years is not going to put a person in jeopardy of prosecution in the absence of other evidence."

The "other evidence" is critical. Multiple sales, even frequent multiple sales isn't enough to make the case.

That evidence no longer includes a principle objective of livelihood, but has been interpreted by the USAG to include unquantified judgements about frequency, duration and number.

You understand that the other evidence is critical, but in your assurance above that he won't be put in jeopardy you dispose of the entire issue presented with "in the absence of other evidence". Since no one has ever transferred an arm in the absence of evidence other than the occurrence of a sale, telling people that they aren’t in jeopardy when Merrick Garland won’t even do that is not circumspect.

Originally Posted by JohnKSa

That's a pretty obvious mischaracterization. You have seized on a single casual example provided in the course of a rather long explanation and turned it into something it's not. Anyone who takes the time to read the rule and commentary, or even who looks through it and reads significant portions of it will see that what I'm saying is true. Again, there's no benefit to trying to freak people out by making this rule change into something it isn't.

It might be wiser not to refer to a comment on the explanation of the USAG as “seiz[ing] on a single casual example” while lodging a complaint about mischaracterization.

Originally Posted by Garland

Consistent with that ordinary meaning, a person is less likely to be understood as “repetitively” selling firearms if they do so twice over five years than if they do so several times over a short period.

So, a person can be understood to be engaged in the business for having sold two guns in five years, but it’s less likely than if they do it an unspecified number of times over a period of unspecified duration. That’s precisely the vague quality s3779m and other commenters have identified, and Garland repeats it in his refutation. Hilarious. It’s funny enough that it may be intentional.

Finally, your expressed sense that your positions are so obviously true that anyone who is honest about this will read the rule and share your view is something you might want to keep to yourself. The idea that departing from your view is trying to scare people is not a comment on the Act, the EO, the reg or future enforcement.

[The Verminator]

Originally Posted by zukiphile

You are aware that one can be a dealer under the rule without having sold a single firearm.

Yes.

This illustrates the bizarre nature of this debate.

Let's recognize that all gun owners would rather make money when they sell a gun.........that means everyone has an INTENT to make a profit.

Your take on this would make us all dealers even if we haven't sold a gun.

[stagpanther]

This discussion is going to go around in circles forever. There are essentially two "sides" here:

1. Personal sales do not require ffl licensing under any circumstances; and
2. Personal sales that are substantively, not necessarily quantitatively, the same as what licensed ffl dealers do are required to have ffl licenses.

There's actually a third implicit position that no sales of any kind should ever require any kind of licensing--much as I would like to have my own personal 155 mm howitzer that's probably never going to happen.

I fear my beer and popcorn supply is going to run out before this one is satisfactorily resolved.

[JohnKSa]

...that means everyone has an INTENT to make a profit.

That is not what the new rule says. That is, it the word "intent" in the law is qualified with a modifier and the predominant intent to make a profit is only part of what is required to make the case.

1. Personal sales do not require ffl licensing under any circumstances; and
2. Personal sales that are substantively, not necessarily quantitatively, the same as what licensed ffl dealers do are required to have ffl licenses.

Personal sales can certainly require ffl licensing if the buying/reselling is repetitive in nature and is being done predominantly for profit.

If you want a very succinct summation, here it is: If you are dealing firearms (i.e. buying and selling them but not for personal use/collecting) then you need a license.

I think the rule could have been a lot clearer--which is a sad thing to say given how much time they spent writing it and explaining it--but it is not the hopelessly vague mess that some people are claiming it is. I believe that a person of ordinary comprehension can read the rule and gain sufficient insight to understand it and to avoid being prosecuted under its provisions.

There's actually a third implicit position that no sales of any kind should ever require any kind of licensing...

My personal opinion is that the entire FFL scheme is unconstitutional. Unfortunately I am not SCOTUS so my personal opinion carries no weight when it comes to constitutionality.

I wouldn’t complain about people exercising foresight. Ordinary foresight can include assessing whether a power handed government will go unused. Whereas the possibility of monkeys flying is remote, history indicates that a power doesn't go unused indefinitely, and is too often used even when it isn't granted.

It's always good to look ahead, but there seems to be enough confusion for the present to warrant focusing on that for the time being. I don't think for a moment this will be the end of things.

As far as telling people to read the rule goes, if they don't, it's going to be much more difficult to explain to them. And when the questions being asked make it clear that the rule hasn't been read, it's good advice for a starting point for people who are actually interested in the topic. What I'm seeing is that there are people who aren't really interested enough to find out what the rule says--they just want to complain about it. I'm all for complaining about it but that's sort of pointless until one knows what they are complaining about.

You are aware that one can be a dealer under the rule without having sold a single firearm.

See, this is unhelpful. That is not what the statement means at all. What it means is that it takes repetitive sales AND other evidence, it doesn't mean that it takes repetitive sales OR other evidence. If you believe otherwise, outline, using direct quotes from the new rule, a method for prosecuting someone who has never sold a firearm.

That evidence no longer includes a principle objective of livelihood, but has been interpreted by the USAG to include unquantified judgements about frequency, duration and number.

Again, not helpful.

Yes, it doesn't include "principle objective of livelihood", but it still includes the motive of doing it "predominantly for profit" as well as the other evidence you mention. Making it seem that the judgements about frequency/duration/number are the sole criteria is misleading.

So, a person can be understood to be engaged in the business for having sold two guns in five years, but it’s less likely than if they do it an unspecified number of times over a period of unspecified duration.

No, that's not what it says at all.

1. The 2 guns in 5 years statement was part of a comparison in an explanation--it gives two hypothetical cases and compares them to see which of the two cases makes a person more/less likely to be found to have satisfied the repetitive sales portion of the law. It was not a statement that selling 2 guns in 5 years was going make it clear that a person was "understood to be engaged in the business", nor even that "selling several times over a short period" would. The point was the comparison. In either of the two situations stated for the sake of comparison (the more likely one or the less likely one) it would require additional evidence to prosecute.

2. The other hypothetical case was "several times over a short period". If someone really doesn't understand that "several" is more than 2 and "a short period" is less than 5 years, then they probably need to forget about understanding this rule.

For the third time, I'm going to say it even though I understand at this point that you will not admit that it is a true statement. Fortunately your admission has nothing to do with its accuracy. "If you are honest about it, you will have to admit that 2 sales in 5 years is not going to put a person in jeopardy of prosecution in the absence of other evidence."

What would be helpful is an explanation of the new presumptions and their impact from a legal perspective. The law says that they are not to be used in criminal prosecutions--so how would they be used and what do people need to know about them?

[zukiphile]

Originally Posted by JohnKSa

For the third time, I'm going to say it even though I understand at this point that you will not admit that it is a true statement. Fortunately your admission has nothing to do with its accuracy. "If you are honest about it, you will have to admit that 2 sales in 5 years is not going to put a person in jeopardy of prosecution in the absence of other evidence."

John, you don't appear to have understood the prior response. I didn't assert that your statement is untrue.

Originally Posted by zukiphile

You understand that the other evidence is critical, but in your assurance above that he won't be put in jeopardy you dispose of the entire issue presented with "in the absence of other evidence". Since no one has ever transferred an arm in the absence of evidence other than the occurrence of a sale, telling people that they aren’t in jeopardy when Merrick Garland won’t even do that is not circumspect.

That's not an assertion that two sales in five years is " going to put a person in jeopardy of prosecution in the absence of other evidence". It's an explanation that the other evidence is critical (your term) so your assurance omits the critical part of any fact pattern.

Originally Posted by JohnKSa

See, this is unhelpful. That is not what the statement means at all. What it means is that it takes repetitive sales AND other evidence, it doesn't mean that it takes repetitive sales OR other evidence. If you believe otherwise, outline, using direct quotes from the new rule, a method for prosecuting someone who has never sold a firearm.

That is incorrect. This appears to be very helpful. Under the rule,

However, there is no minimum threshold number of
firearms purchased or sold that triggers the licensing requirement.

and

(c) Presumptions that a person is engaged in the business as a dealer. In civil and administrative proceedings, a person shall be presumed to be engaged in the business of dealing in firearms as defined in paragraph (a) of this section, absent reliable evidence to the contrary, when it is shown that the person—
(1) Resells or offers for resale firearms, and also represents to potential buyers or otherwise demonstrates a willingness and ability to purchase and resell additional firearms (i.e., to be a source of additional firearms for resale);

Emphasis added. https://www.atf.gov/rules-and-regula...earms/download p 458.

Garland seems to understands what his regs mean.

Similarly, there is no minimum number of transactions that
determines whether a person is “engaged in the business” of dealing in firearms. Even a single firearm transaction, or offer to engage in a transaction, when combined with other evidence, may be sufficient to require a license.

Id. p 31.

One can trigger a presumption that he is a dealer without having sold anything. You can tell this because neither the rule nor Garland's explanation require a sale.

You will now understand that

Originally Posted by JohnKSA

That is not what the statement means at all. What it means is that it takes repetitive sales AND other evidence, it doesn't mean that it takes repetitive sales OR other evidence.

...is an incorrect reading according to the USAG who presumably read the rule before signing it.



I don't fault you for recommending that people read not only the rule but Garland's explanation. They should read the EO as well. That should not be all interested people do.

[The Verminator]

Originally Posted by dogtown tom

A bill of sale may offer some comfort to a buyer, showing that he has purchased and paid $$$ for an item.........but no way in heck does it "protect" the buyer from buying a stolen gun or in any way protect the seller from anything whatsoever.

Many? How many? Other than UBC states name them.

Oh brother.
If you aren't running an FBI NICS check, how the heck do you know the buyer is not a prohibited person?
How the heck do you know the buyer wont hand that gun to his buddy the criminal before dark?

Well, of course the seller has no way of knowing what a buyer may do........that's why you get his ID--so if HE breaks the law or sells to a criminal you can lay the blame on him.

I don't know what UBC means, but my state requires the seller to obtain ID from buyer on pistols and AR15 type rifles so it's obviously something that everyone should do just in case of trouble.

Oh.......and while you can't run a background check officially--you can make a good faith effort by getting a driver's license and firm ID. Just asking for it will scare off most buyers who have criminal intent. Better yet, sell to someone you know well.

I say this as guidance to others..........I myself would never buy or sell a gun except through a dealer that runs the official background checks.

[dogtown tom]

The Verminator
Well, of course the seller has no way of knowing what a buyer may do........that's why you get his ID--so if HE breaks the law or sells to a criminal you can lay the blame on him.

Having the buyers ID is required to lay blame?
You could have the buyers drivers license, his passport, birth certificate and nearly anu other form of ID and guess what?........you get enough gun traces back to you and you will get on ATF's radar as a source of guns. "But, but, but ....I has their drivers license!" will mean squat.


Saying "I sold it to a guy at a gun show/WalMart parking lot/behind a dumpster who showed me he had an instate drivers license....I have no legal requirement to write that down.....any more questions?".... is all that is needed in Free America.

Any buyer that allows a seller to write down the information on his drivers license WHEN NOT LEGALLY REQUIRED is a nit wit. You are telling the seller where you live and where you have guns. In this day of identity theft that's stupid, stupid, stupid.

I don't know what UBC means,

You should. Your state has had it since last August.

but my state requires the seller to obtain ID from buyer on pistols and AR15 type rifles so it's obviously something that everyone should do just in case of trouble.

If state law requires it I'm sorry for you.

Oh.......and while you can't run a background check officially--you can make a good faith effort by getting a driver's license and firm ID. Just asking for it will scare off most buyers who have criminal intent. Better yet, sell to someone you know well.

Wait.... what?
How on earth can you "make a good faith effort" officially or unofficially without actually running a background check?
If asking for a DL scares off criminals you need to spend a few minutes looking at how many NICS checks are denied every day because the buyer, who presented his DL, was denied.
Fake ID's are a thing.

I say this as guidance to others..........I myself would never buy or sell a gun except through a dealer that runs the official background checks.

Then why the heck are you demanding the buyers ID when you sell a gun?

[The Verminator]

Originally Posted by dogtown tom

Then why the heck are you demanding the buyers ID when you sell a gun?

I don't. I'm not so stupid as to sell a gun that way.

I have made that clear.

Why the heck do you feel a need to make stuff up?

Unsure of your claims?

[The Verminator]

Originally Posted by dogtown tom

Having the buyers ID is required to lay blame?
You could have the buyers drivers license, his passport, birth certificate and nearly anu other form of ID and guess what?........you get enough gun traces back to you and you will get on ATF's radar as a source of guns. "But, but, but ....I has their drivers license!" will mean squat.

Your opinion is noted, but it's not logical.

Maybe you'd say, "Gosh, I just sold it to some guy."