ATF is changing the term "business" for FFL's.

[Delkal]

The final rule is definitely not consistent with the Firearms Owners Protection. Why should there be a presumption that one is gun dealer if one more than occasionally trades a gun in for another gun at a dealer? Why can not one liquidate part or all the collection if one runs into tough times or for some other reason and then later rebuild the collection under this final rule? ATF also apparently doesn't recognize any other type of collector than those who collect curios and relics. ATF doesn't recognize firearms owned for self defense as being part of a hobby or collection. So if you sell what you believe is your 'collection' of defensive firearms, the ATF may presume under the final rule that you are dealing in firearms. We could go on about the problems.

You'll have to pardon but it appears that the final rule changes are not all showing in the Code of Federal Regulations yet which makes it more difficult to easily cite and analyze. See below. Parts are bolded for emphasis.

Then live your life in fear thinking if you sell just one of your firearms the ATF will kick in your door and imprison you for a felony. Since I am sure you will not break the law what will you do with the firearms you already own? Will you turn your firearms in to be destroyed and hope they don't still arrest you? I hope you don't leave them for your family and make it their problem for them to be arrested.

I will live my life without paranoia and get rid of any of my personal collection I acquired over the decades any time I want and I will make a big profit on the earlier purchases. I can only guess I am living in ignorant bliss.

[Mosinshooter762]

So one case in 40 years or more? You could say that about any, and i do mean any law enforcement agency. Even local police make more mistakes than that.

These were not mistakes. A Senate Subcommittee concluded that these types of charges were intentional. (See: The Right to Keep and Bear Arms: Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, Ninety-seventh Congress, Second Session https://constitution.org/1-Constitut...l/87senrpt.pdf) The report concluded that these types of prosecutions were intentional.

https://en.wikipedia.org/wiki/Firear...Protection_Act
The report also said that 75 percent of ATF prosecutions "were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations." It suggested that reform of federal firearms law such as proposed in S. 1030 "would be largely self-enforcing" and "would enhance vital protection of constitutional and civil liberties of those Americans who choose to exercise their Second Amendment right to keep and bear arms."[1]

There are examples of abuses in the June 1982 FOPA Senate Report. Adobe is not letting me copy the text. The discussion of the abuses in general start on page 14 of this report http://www.harrislawoffice.com/conte...ative_history/. The discussion about the abuses of the dealing in firearms charge begin on page 15 of the report.

[Mosinshooter762]

Then live your life in fear thinking if you sell just one of your firearms the ATF will kick in your door and imprison you for a felony. Since I am sure you will not break the law what will you do with the firearms you already own? Will you turn your firearms in to be destroyed and hope they don't still arrest you? I hope you don't leave them for your family and make it their problem for them to be arrested.

I will live my life without paranoia and get rid of any of my personal collection I acquired over the decades any time I want and I will make a big profit on the earlier purchases. I can only guess I am living in ignorant bliss.

I choose neither path you propose. I know of gun control activists who are otherwise living quite the life. Some are even gun owners that just don't believe that 'some' people (insert whatever type of person or group) should be able to buy or sell (insert certain types of) guns.

So why can't advocates for civil liberties also advocate for their causes when warranted and also live their lives?

I support Judge Phil Journey and his effort to overturn the final rule. He doesn't seem like he is losing sleep and yet he and others are advocating to overturn this unlawful action to protect us all. Cam and Company recently interviewed him here: https://www.youtube.com/watch?v=sMbRo9LR0YQ

[buckengr]

That*s a ton of *what if** and no concrete proof. Again, i know how this will play out and it wont be how you think. You are correct in that you are not a lawyer, but that your perception of the ruling is not. If you wish to wear a tin foil hat then be my guest, but no second amendment violation exists here. I find it funny that most people who argue that they dont need to be licensed to be a dealer are the ones that oppose illegal immigration. Irony at its finest. I get that you want to be a dealer without having to get an FFL, do record keeping, be open for inspections, do background checks, report taxes, and be regulated*but that doesn*t mean its the right way to do things. After all, as another member stated just because you have been doing something for many years without getting caught, doesn*t make it right or moral.

I don't have any interest in doing that. That wasn't my point and isn't the concern. At all.

Stop accusing people of fear mongering when you don't understand or are unwilling to respond to legitimate concerns.

If this rule is so innocuous and the ATF is so well-intentioned, why does the supposed "exception" that allows for liquidating firearms from a personal collection exclude firearms that are not curios and relics (i.e., typical self-defense firearms)?

Why doesn't it state a clear exception for selling a firearm to someone who had a background check conducted at an FFL or directly to an FFL? There are no exceptions covering these very common situations. By the letter of the rule, these could get you prosecuted. If the goal is to suppress lawful exercise of Rights, that's exactly what it will do. You will know them by their fruits.

[JoshIronshaft]

If this rule is so innocuous and the ATF is so well-intentioned, why does the supposed "exception" that allows for liquidating firearms from a personal collection exclude firearms that are not curios and relics (i.e., typical self-defense firearms)?

Here is my interpretation. Previously the definition of collector was only related to curios and relics for the purpose of the C&R FFL 03 license. The definition of collector only exited in the code for that purpose. In the new rule, which you also cited, the definition of collector is clearly expanded. They even put an "etc." on it so it is very broad.

Why doesn't it state a clear exception for selling a firearm to someone who had a background check conducted at an FFL or directly to an FFL? There are no exceptions covering these very common situations. By the letter of the rule, these could get you prosecuted. If the goal is to suppress lawful exercise of Rights, that's exactly what it will do. You will know them by their fruits.

Are you describing an individual to individual sale where the FFL is conducting the transfer? I don't see why they could exempt that, since someone could still be doing those types of transactions in a manner that makes them engaged in profit making.

I guess the answer to the overall question is, why would they exempt those transactions as a whole when they could very easily be part of someone violating the rules? Say someone has a habit of raiding estate sales and paying bottom dollar for large gun collections. They then sell them to their dealer buddy for a nice profit, who goes on to sell them at their FFL as inventory. If they had created a loophole in the rule, then that could be exploited by that situation I just described.

I don't want this rule to exist either, but I can understand the logic of the vast majority of it.

[Mosinshooter762]

Here is my interpretation. Previously the definition of collector was only related to curios and relics for the purpose of the C&R FFL 03 license. The definition of collector only exited in the code for that purpose. In the new rule, which you also cited, the definition of collector is clearly expanded. They even put an "etc." on it so it is very broad.



Are you describing an individual to individual sale where the FFL is conducting the transfer? I don't see why they could exempt that, since someone could still be doing those types of transactions in a manner that makes them engaged in profit making.

I guess the answer to the overall question is, why would they exempt those transactions as a whole when they could very easily be part of someone violating the rules? Say someone has a habit of raiding estate sales and paying bottom dollar for large gun collections. They then sell them to their dealer buddy for a nice profit, who goes on to sell them at their FFL as inventory. If they had created a loophole in the rule, then that could be exploited by that situation I just described.

I don't want this rule to exist either, but I can understand the logic of the vast majority of it.

I am glad you are on our side. Now take another look at the definition of personal collection in the final rule.

§ 478.11 Meaning of terms.
* * * * *

Personal collection (or personal
collection of firearms, or personal
firearms collection)*(1) General
definition. Personal firearms that a
person accumulates for study,
comparison, exhibition (e.g., collecting
curios or relics, or collecting unique
firearms to exhibit at gun club events),
or for a hobby (e.g., noncommercial,
recreational activities for personal
enjoyment, such as hunting, skeet,
target, or competition shooting,
historical re-enactment, or
noncommercial firearms safety
instruction). The term shall not include
any firearm purchased for the purpose
of resale with the predominant intent to
earn a profit (e.g., primarily for a
commercial purpose or financial gain, as
distinguished from personal firearms a
person accumulates for study,
comparison, exhibition, or for a hobby,
but which the person may also intend
to increase in value). In addition, the
term shall not include firearms
accumulated primarily for personal
protection: Provided, that nothing in
this definition shall be construed as
precluding a person from lawfully
acquiring firearms for self-protection or
other lawful personal use.

If Congress had intended or even just wanted ATF to presume that firearms acquired primarily for personal protection are not part of a gun collection or hobby, would not it have said so in the statute?

Also, take the example of someone buying a firearm like one might buy silver or gold. The primary reason, in this example, for this purchase is that one expects that it will increase in value and they plan to sell it in years 1, 5, 10, 25, or so on down the line. ATF now apparently does not consider this firearm as part of a personal collection. Again, if Congress had intended this to be the case would not it have said so in the statute?

FFLs were prohibited from conducting business at gun shows at least prior to an ATF regulation change in 1984 (which people doubted ATF had the power to change by regulation because the statutory language did not authorize any place other than a permanent business premises). See United States v. Ruisi, 460 F. 2d 153 - Court of Appeals, 2nd Circuit 1972. In that case, an officer and employee of a company holding a FFL were convicted for unlicensed dealing at a gun show as it was not part of licensed business premises. Fortunately, the Firearm Owners Protection Act (FOPA) ended this problem definitively with a statutory change allowing business to be conducted temporarily within the same state at gun shows and certain other events in 1986.

However, legally speaking, the only persons who could transfer firearms at gun shows prior to at least 1984 and definitely by 1986 were persons not meeting the threshold of dealers at that location. In particular, this would have included many collectors and hobbyists who could showcase many firearms on a table. Congress intended to protect this with FOPA by clarifying what it meant with the term to be engaged in the business of dealing in firearms and specifically excluding collectors and many hobbyists. This is so even if there was a big profit that could be made from it as there would be no need to add this exclusion if it was not intended to protect collectors and many hobbyists.

So it seems strange that a statute that was passed to protect collectors, and hobbyists buying, selling, and trading firearms is now being used to target collectors and many hobbyists. It would also seem that collectors and hobbyists buying, selling, and trading firearms falls within the text, history, and tradition of the Second Amendment as this is a part of American culture. This is even after the Gun Control Act of 1968, as indicated by FOPA protecting this.

While the Supreme Court mentioned in dicta that restrictions on commercial firearms sales may be permissible, it never has blessed restrictions on non-commercial transactions. This is particularly important because the Gun Control Act of 1968 regulates intrastate firearms dealing and Congress citied the interstate and foreign commerce clause as basis of the power to regulate firearms dealing. This is yet another constitutional issue with the Gun Control Act of 1968, and especially with this final rule trying to grab onto even many non-commercial intrastate firearms transactions.

Add on this that it used to be much easier to get an FFL in the time period following 1968 up until the Clinton Administration and this creates all sorts of legal perils for gun collectors and hobbyists. So you now run into even more situations where the ATF can say you will not do enough business to be issued an FFL (or that you are just getting it for collecting or for a hobby) but then later on accuse you of illegally dealing in firearms without a FFL. This could be on the basis of the same facts that you were denied an FFL on.

[Delkal]

Lots of words lately so lets cut to the chase. And this is not a matter of taking sides. So now everyone agrees with this new law it is illegal to sell any firearm that can be used for personal protection?

Uhhhh OK.

[Mosinshooter762]

Lots of words lately so lets cut to the chase. And this is not a matter of taking sides. So now everyone agrees with this new law it is illegal to sell any firearm that can be used for personal protection?

Uhhhh OK.

Trick question. It is certainly easier for ATF to argue unlicensed dealing under the final rule. They stated as part of the definition of personal collection in the final rule:

Provided, that nothing in
this definition shall be construed as
precluding a person from lawfully
acquiring firearms for self-protection or
other lawful personal use.

Now why did they specifically mention acquisition but not selling or trading such firearms?

Fortunately, this change is not a law. Think of it as like the pistol brace ban. It is a regulatory change that is subject to judicial review. It could have the force and effect of law if it is interpreted to be a necessary regulation to implement the Gun Control Act of 1968. If not then a judge could decline to apply it in a criminal or civil case or block enforcement in an appropriate case.

Now if the final rule stands as it is written today then in many ways it is like the clock has been rolled back to pre-1986 (pre-FOPA enactment) times in terms of the engaged in the business of dealing in firearms definition. The ATF has a lot more discretion to go after people under the final rule than it was understood to have after FOPA passed. Pre-FOPA this resulted in many cases of arbitrary and capricious enforcement in cases that at most were technical violations.

[buckengr]

Are you describing an individual to individual sale where the FFL is conducting the transfer? I don't see why they could exempt that, since someone could still be doing those types of transactions in a manner that makes them engaged in profit making.

I guess the answer to the overall question is, why would they exempt those transactions as a whole when they could very easily be part of someone violating the rules? Say someone has a habit of raiding estate sales and paying bottom dollar for large gun collections. They then sell them to their dealer buddy for a nice profit, who goes on to sell them at their FFL as inventory. If they had created a loophole in the rule, then that could be exploited by that situation I just described.

I will admit that I never considered that such a pattern of behavior would have been something that Congress would have intended to require licensure, although I will concede that it could have been, (albeit unconstitutionally).

I would bet that the lay person's common understanding (or perhaps misunderstanding) of the role of an 01/FFL is primarily to be an entity that conducts background checks, and that so long as an FFL is involved in the transaction as either the direct recipient or as a facilitator of a transfer to a buyer (after that buyer passes a background check), the conduct of the seller would be presumed to be lawful.

This rule would therefore surprise most Americans who likely believe that they should be able to depart with their own personally-owned arms as they would with any other "free merchandise", as Mr. Allen so eloquently described in the quote in your signature, at least insofar as the would-be buyer either has an FFL or passes a background check in the process.


As a separate issue, I do have serious concerns about the constitutionality of any law regulating any part of the transfer of firearms since laws that limit availability of firearms necessarily limit the ability of the people to exercise their right to acquire arms -- a necessary precondition to be able to exercise the enumerated right to keep arms.

infringe: to act so as to limit or undermine; encroach on

alternatively

infringe: to hinder or to destroy

shall not infringe = shall not limit; shall not undermine; shall not encroach on; shall not hinder; shall not destroy the right

Thus, I believe any such law or regulation to be a clear violation of the "unqualified command" given in the plain text of the Second Amendment. There was no longstanding historical tradition of analogous regulations on firearms transfers of any kind, circa 1791 when the Second Amendment was ratified. The GCA wasn't passed until 1968 -- nearly 150 years after Thomas Jefferson and John Adams died. This is far too late to satisfy the government's burden it must prove under Bruen. Therefore, it must be unconstitutional.

[JoshIronshaft]

Let me clarify that I wish we lived in a world where firearm transfers were unregulated. I'm with you on that. But we don't live in that world, so we have to play by the rules or men with guns put us in a cage.

I really dislike how vague many ATF rules and regulations are. Which is a double edged sword. Additional rulings and clarifications can be positive or negative. I guess I see some positive in this rule, in that it makes it easier for someone to understand if they should have an FFL or not based on the activities they are engaged in. But I see the negatives you are pointing out, as there is still a lack of clarity here.

I am glad you are on our side. Now take another look at the definition of personal collection in the final rule.

Reading that definition is tricky.

The term shall not include any firearm purchased for the purpose of resale with the predominant intent to earn a profit (e.g., primarily for a commercial purpose or financial gain, as distinguished from personal firearms a person accumulates for study, comparison, exhibition, or for a hobby, but which the person may also intend to increase in value).

That last part, "but which the person may also intend to increase in value", to me, sounds like the ATF is acknowledging that firearms in your collection may increase in value, so you make money when you sell them, and that is ok.

In addition, the term shall not include firearms accumulated primarily for personal protection: Provided, that nothing in this definition shall be construed as precluding a person from lawfully acquiring firearms for self-protection or other lawful personal use.

I do find this part to be confusing and maybe mildly concerning. I wonder how you could distinguish a firearm for self-protection or other lawful personal use from one acquired for those reasons listed under the collection definition. They are all purchased in support of my hobby, and all of them can be used for recreation or self-protection. That is interesting. I don't think I have the knowledge to really interpret the implications of this.

If Congress had intended or even just wanted ATF to presume that firearms acquired primarily for personal protection are not part of a gun collection or hobby, would not it have said so in the statute?

Yup, I can't answer that.

Also, take the example of someone buying a firearm like one might buy silver or gold. The primary reason, in this example, for this purchase is that one expects that it will increase in value and they plan to sell it in years 1, 5, 10, 25, or so on down the line. ATF now apparently does not consider this firearm as part of a personal collection. Again, if Congress had intended this to be the case would not it have said so in the statute?

I don't buy firearms as an investment with the intent to profit in a couple years, and I don't think most people do. Many people say that firearms are a good investment but they're really not when compared to other options and the volatility in the market. I would say I am collecting firearms, and they just happen to increase in value. They can also decrease in value. Some certainly have.

FFLs were prohibited from conducting business at gun shows at least prior to an ATF regulation change in 1984 (which people doubted ATF had the power to change by regulation because the statutory language did not authorize any place other than a permanent business premises). See United States v. Ruisi, 460 F. 2d 153 - Court of Appeals, 2nd Circuit 1972. In that case, an officer and employee of a company holding a FFL were convicted for unlicensed dealing at a gun show as it was not part of licensed business premises. Fortunately, the Firearm Owners Protection Act (FOPA) ended this problem definitively with a statutory change allowing business to be conducted temporarily within the same state at gun shows and certain other events in 1986.

However, legally speaking, the only persons who could transfer firearms at gun shows prior to at least 1984 and definitely by 1986 were persons not meeting the threshold of dealers at that location. In particular, this would have included many collectors and hobbyists who could showcase many firearms on a table. Congress intended to protect this with FOPA by clarifying what it meant with the term to be engaged in the business of dealing in firearms and specifically excluding collectors and many hobbyists. This is so even if there was a big profit that could be made from it as there would be no need to add this exclusion if it was not intended to protect collectors and many hobbyists.

So it seems strange that a statute that was passed to protect collectors, and hobbyists buying, selling, and trading firearms is now being used to target collectors and many hobbyists. It would also seem that collectors and hobbyists buying, selling, and trading firearms falls within the text, history, and tradition of the Second Amendment as this is a part of American culture. This is even after the Gun Control Act of 1968, as indicated by FOPA protecting this.

I'm still not in agreement that the intent of this rule change is to target hobbyists and collectors. I think the intent is to have more transfers go through an FFL by defining FFL mandating activities, and certainly some collectors and hobbyists will fall into that window. It seems they will have to get an FFL or modify their behaviors.

I agree that engaging in collecting and hobby is tradition as you stated, and if the Supremes strike down this rule based on that, then I will celebrate.

While the Supreme Court mentioned in dicta that restrictions on commercial firearms sales may be permissible, it never has blessed restrictions on non-commercial transactions. This is particularly important because the Gun Control Act of 1968 regulates intrastate firearms dealing and Congress citied the interstate and foreign commerce clause as basis of the power to regulate firearms dealing. This is yet another constitutional issue with the Gun Control Act of 1968, and especially with this final rule trying to grab onto even many non-commercial intrastate firearms transactions.

Add on this that it used to be much easier to get an FFL in the time period following 1968 up until the Clinton Administration and this creates all sorts of legal perils for gun collectors and hobbyists. So you now run into even more situations where the ATF can say you will not do enough business to be issued an FFL (or that you are just getting it for collecting or for a hobby) but then later on accuse you of illegally dealing in firearms without a FFL. This could be on the basis of the same facts that you were denied an FFL on.

I have an 03 FFL for C&R collecting. I say this just to state I am not an 01 or other retail/manufacturer FFL.

I know many FFLs, and it is not hard to obtain the FFL. In some recent talks I had with the local ATF office, the guys I spoke with encouraged me to get any FFL I wanted. Their attitude was "more the merrier" it seemed. You will be expected to express an intent to engage in business, which isn't hard to do.

They have certainly cracked down on FFLs and made it harder to keep an FFL if you are lazy, negligent, or nefarious. It seems that your proximity to a "hot" urban area may also increase your level of scrutiny. I know one FFL who does a fair amount of business from his rural home and he hasn't heard from or seen an ATF agent in years.

I know someone with an 01 FFL who hasn't done a transfer in a decade. He renews, and never hears a thing.

I know someone who has had an 01 FFL for years that has never done a transfer. Only purchased inventory. No issues there either.

We hear some stories about FFLs being shutdown but I don't think they give a true representation of what is actually happening. I think some FFLs do get shut down for legitimate or illegitimate (even political) reasons, but the vast majority are going about their operations unbothered.