New ATF "Guidance" on understanding when an FFL is needed under federal law

[pyld]

The ATF issued "guidance" tonight.

I am not a lawyer, and I'm pretty sure at least one of the resident ones is chomping at the normal bit to tell me where I'm wrong......

If you find this post via google, check the freaking internet for the actual ATF document rather than assuming what's quoted is current.

Some choice points:

The guidance set forth herein has no regulatory effect and is not intended
to create or confer any rights, privileges, or benefits in any matter, case, or
proceeding, see United States v. Caceres, 440 U.S. 741 (1979).

In other words, it's not law. It's "guidance" on who they will try to prosecute. Read on"

• Federal law requires that persons who are engaged in the business
  of dealing in firearms be licensed by ATF. The penalty for dealing in
  firearms without a license is up to five years in prison, a fine up to
  $250,000, or both.
• A person can be engaged in the business of dealing in firearms
  regardless of the location in which firearm transactions are
  conducted. For example, a person can be engaged in the business
  of dealing in firearms even if the person only conducts firearm
  transactions at gun shows or through the internet
• Determining whether you are “engaged in the business” of dealing in
  firearms requires looking at the specific facts and circumstances of
  your activities.
• As a general rule, you will need a license if you repetitively buy and
  sell firearms with the principal motive of making a profit. In contrast,
  if you only make occasional sales of firearms from your personal
  collection, you do not need to be licensed.
• Courts have identified several factors relevant to determining on
  which side of that line your activities may fall, including: whether
  you represent yourself as a dealer in firearms; whether you are
  repetitively buying and selling firearms; the circumstances under
  which you are selling firearms; and whether you are looking to make
  a profit. Note that while quantity and frequency of sales are relevant
  indicators, courts have upheld convictions for dealing without a
  license when as few as two firearms were sold, or when only one or
  two transactions took place, when other factors were also present.

Nothing has changed. They are trying to scare people with the last bullet point. If you sold your neighbor a rifle, you can sell him another one tomorrow.

If you set up tables, bought and sold at a show repetitively, have business cards, etc--you need an FFL. But you needed one yesterday.

What does it mean to be “engaged in the business of dealing in
firearms”?

Under federal law, a person engaged in the business of dealing in firearms is 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.”
Under federal law, conducting business “with the principal objective of livelihood
and profit” means that “the intent underlying the sale or disposition of firearms is
predominantly one of obtaining livelihood and pecuniary gain, as opposed to other
intents, such as improving or liquidating a personal firearms collection.”
Consistent with this approach, federal law explicitly exempts persons “who make
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.”

Has ATF defined what it means to be “engaged in the business” of
dealing in firearms?

ATF has published regulatory definitions for the terms “engaged in the business”
and “principal objective of livelihood and profit.” ATF’s regulation defining when a
person is “engaged in the business” of dealing in firearms is identical to the language
of the statute, though in the definition of “dealer,” ATF clarified that the term
includes “any person who engages in such business or occupation on a part-time
basis.”

The bolding is mine. The good news is that even Obama recognizes (as I've said elsewhere) that they defined this stuff in statute.

The part-time thing is bad news, but I believe it's also old news. That tells you right there they intend to go after folks who don't necessarily make "full time" money at it or throw "full time" time at it.

What activities require a dealer’s license?

Federal law does not establish a “bright-line” rule for when a federal firearms license is
required. As a result, there is no specific threshold number or frequency of sales, quantity
of firearms, or amount of profit or time invested that triggers the licensure requirement.
Instead, determining whether you are “engaged in the business” of dealing in
firearms requires looking at the specific facts and circumstances of your activities.

As a general rule, you will need a license if you repetitively buy and sell firearms
with the principal motive of making a profit. In contrast, if you only make occasional
sales of firearms from your personal collection, you do not need to be licensed. In
either case, all of your firearms transactions are relevant, regardless of their location;
it does not matter if sales are conducted out of your home, at gun shows, flea markets,
through the internet, or by other means.

Again--even they recognize what the law says. This had to have burnt like a kidney stone for Obama to read.

They then go on to detail some factors that have previously been used by courts. I'll pull a few:

Are you representing yourself as a dealer in firearms?

This should be self explanatory. Anyone who does this without an FFL yesterday is asking for trouble.

Are you repetitively buying and selling firearms?

What are the circumstances under which you are selling firearms? Are you
selling shortly after acquiring them? Repeatedly selling the same type of
firearm? Or repetitively selling new firearms?

Are you looking to make a profit?

As noted above, if you are repetitively buying and selling firearms “with the principal
objective of livelihood and profit,” you must be licensed. Because the key is intent or
objective, the courts have made clear that a person can be “engaged in the business”
of dealing in firearms without actually making a profit. In determining that intent or
objective, courts have looked to prices that an unlicensed seller charges for firearms
to determine if the principal objective of the seller is livelihood and profit. In some
cases, prices reflect appreciation in actual market value resulting from having held a
firearm as part of a collection, or reflect a profit intended to be used to acquire
another firearm as part of a collection. As a result, the fact that a transaction results in
a profit for the seller is not always determinative.

I'll say this for them: really narrowing things from where they are today. Not.

They then go onto "examples." The ones that matter (such as any of them matter, since it really only matters what the judge thinks):

Bob inherits a collection of firearms from his grandfather. He would rather have cash
than the firearms, so he posts them all online for sale. He makes no purchases, but
over the course of the next year he sells all of the firearms he inherited in a series of
different transactions. Bob does not need a license because he is liquidating a
personal collection.

Sharon travels to flea markets the first Saturday of every month, buying undervalued
goods, including firearms. The last Saturday of every month Sharon rents a booth at
the flea market and sells her items at market value for a profit. She hopes to make
enough money from these sales to finance a trip to Italy next year. Sharon must get
a license because she is repetitively buying and selling firearms with the primary
objective of profit.

David enjoys hunting and has a large variety of hunting rifles. He likes to have the
newest models with the most current features. To pay for his new rifles, a few times a
year David sells his older weapons to fellow hunters for a profit. David does not need
to be licensed because he is engaging in occasional sales for enhancement of his
personal collection.

Lynn regularly travels to gun shows around her state, rents space, and sells firearms
under a banner stating “liquidating personal collection.” Most of the firearms Lynn
offers for sale she purchased from a licensed dealer in the prior weeks. Lynn is retired
and hopes to supplement her income with the money she makes on the sales,
although she has yet to turn a profit. Lynn must get a license because she is repetitively
buying and selling firearms with a primary objective of profit.

if you are making money at it to a non-firearm collecting end, you are toast. Which, so far as I'm aware, is consistent with the statute.

Scott has been collecting high-end firearms for years. In the six months before his
son is about to enter college, Scott sells most of his collection in a series of transactions
at gun shows, on the Internet, and to family and friends to provide funds to
pay his son’s college expenses. Scott does not have to be licensed, because he is
liquidating part of a personal collection.

Debby has three handguns at home, and decides that she no longer wants two
of them. She posts an advertisement in the local newspaper and sells the two
handguns to a local collector. Debby does not need a license because she is not
engaging in the repetitive purchase and resale of firearms as a regular course of
trade or business.

Jessica enjoys shooting sports and frequently goes to shooting ranges and
hunting clubs. To make some extra money, she buys firearms from a dealer who is
willing to give her a discount, and resells them for a profit to acquaintances from
the shooting ranges and hunting clubs. She has done this a few times a month for
the last several months, and has been spreading the word that she has a source
for other firearms. She passes out business cards with her name, phone number
and email. Jessica must get a license because she is repetitively buying and selling
of firearms with the primary objective of profit.

Doug regularly attends gun shows and rents a table to display firearms for sale. He
gets firearms from a variety of sources, carefully logs each purchase into a book,
and uses the purchase price to set a sales price that will realize him a net profit.
Doug accepts credit card payments and typically sells multiple firearms at each
of the gun shows he attends each year. He makes a substantial amount of money
annually, and uses this money to live on. Doug must be licensed because he is
repetitively buying and selling firearms with the primary objective of profit.

I don't believe any of these are out of line with what the law says.

We can argue about what the law should say, but I don't really see closing any "loophole" here that was really "open" before.

[JenniferG]

Debby has three handguns at home, and decides that she no longer wants two
of them. She posts an advertisement in the local newspaper and sells the two
handguns to a local collector. Debby does not need a license because she is not
engaging in the repetitive purchase and resale of firearms as a regular course of
trade or business.

If Debbie inherited those pistols from her parents or grandparents and sells them in PA the buyer must register them with the PA State Police when they are "transferred".

[JenniferG]

In defense of the new guy that had his thread locked about this zerobama Executive Order the search engine on this forum is about as good as the one on the Simple Machines Forum that I own. That's not saying a lot.