Proposed rule on individual gun sales.

[Handloader109]

This has been somewhat under the radar, but the atf has proposed rule (that you should go comment on, btw) that will make pretty much anyone who sells more than one, and maybe any, firearm to another individual in his own state, a criminal unless they go through an ffl.

They would be engaged in sales to make a profit. And even that may cause issues as there is the potential for the atf to inspect ffl records and see Joe schmoe has used the ffl to sell 10 guns in past year and is now an illegal businessman selling guns.

I'm attaching video that describes better than me, I would suggest you watch if you have a predilection to buy a gun, use for a while and resell to an individual rather than trade in at a store.
These fellows also suggest stop tracking the cost of a purchase or keeping track of the value of a collection, as it can be used to show you are trying to make money on any sale. And to STOP using bill of sales. Change language to transfer of the weapon, and never put a dollar value in the transfer document.... just you are conveying ownership to Mark Gunman.

Video. These guys usually have good info for gunowners...

https://youtu.be/eu0u1s-5jCA?si=xxWBoZqx9SnBN24t

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[10x]

Read the Second Amendment of the Constitution. requiring a middle man to approve or conduct a transfer of firearms (and all property) is an infringement of the Second amendment.

[phantom22]

I saw a movie once about a guy who was determined to be a free man and he ignored unjust laws. He was asked if it was wise to risk imprisonment or a grisly end at the hands of law enforcement. He muttered something about duty and chains and shackles or something, i wasn't really paying attention. I'm not a big fan of sci-fi anyway.

[10x]

I saw a movie once about a guy who was determined to be a free man and he ignored unjust laws. He was asked if it was wise to risk imprisonment or a grisly end at the hands of law enforcement. He muttered something about duty and chains and shackles or something, i wasn't really paying attention. I'm not a big fan of sci-fi anyway.

Ignoring unjust laws will ensure one falls victim to those laws. There are enough unjust people willing to enforce unjust laws to keep the unjust law alive..
One can not simply expect to take rights, one must stand up for those rights. Rights are inherent and immutable, and that is what makes them rights.

[contender1]

Read the Second Amendment of the Constitution. requiring a middle man to approve or conduct a transfer of firearms (and all property) is an infringement of the Second amendment.

While we all believe that,, many laws out there are an infringement. And this gets around the 2nd by it being a "business practice" etc.
As it was told to me long ago; "Just because it's not right, or goes against the Constitution, do you have the time, the money and willingness to sit in jail to fight it?"

That's why we NEED the NRA and especially the masses of gun owners to stand together & fight against such regulations.

[JimB..]

For those interested in reading it rather than having it interpreted for them.
https://www.atf.gov/firearms/definition-engaged-business-dealer-firearms
Comment period ends Dec 7.

Happy to discuss with anyone that reads it.

Edit: I’ve been warning private sellers for over a decade not to act like dealers (ie record keeping, BOS, etc) because of the risk it creates for them, but most people find the process rewarding (hey look I made untaxed profits) or comforting (if the gun is later used in a crime I can “prove” (lol, btw) that it wasn’t me). The beauty of this for the ATF is that the seller accumulates all the evidence needed for ATF and IRS. An agent can simply look at your online activity, figure out who you are, convince a judge that you appear to be engaged on the business, and come get the documentation you’ve meticulously maintained for them. This has long been the case, this rule makes it a lot easier by creating the presumption that someone is engaged in the business in certain circumstances. If you can’t read all of it, maybe read that part.

[10x]

While we all believe that,, many laws out there are an infringement. And this gets around the 2nd by it being a "business practice" etc.
As it was told to me long ago; "Just because it's not right, or goes against the Constitution, do you have the time, the money and willingness to sit in jail to fight it?"

That's why we NEED the NRA and especially the masses of gun owners to stand together & fight against such regulations.

The erosion of rights happens slowly and is always presented as "REASONABLE" by people who are not reasonable who do not want any one to have rights.
The NRA needs a kick in the posterior to stand them up and set them to protect your rights.
I live in Canada and the newly amended (1981) Constitution (section 1) attempts to void every right Canadians have, then lists a portion of the rights it claims to protect.
Be very careful of "reasonable people" in the end they are not reasonable.

[JonB_in_Glencoe]

For those interested in reading it rather than having it interpreted for them.
https://www.atf.gov/firearms/definition-engaged-business-dealer-firearms
>>>SNIP
So this link leads you to this document
https://www.regulations.gov/document/ATF-2023-0002-0001
This Doc is huge. I read through about 10% of this in 15 minutes and got drowsy, maybe I'll read more later.

I wasn't able to find where this will be done via a Act of Congress?
The text of the Law, what they are calling rules, which they are proposing to change, were created by a Act of Congress.
I don't believe changing the Law is something that can be done without another Act of Congress.

If I am correct, they are proposing to make Law, bypassing Congress, which is unconstitutional. This isn't the first time the ATF have attempted unconstitutional rule making, AKA: Law making.

[Bmi48219]

…..I don't believe changing the Law is something that can be done without another Act of Congress.

If I am correct, they are proposing to make Law, bypassing Congress, which is unconstitutional. This isn't the first time the ATF have attempted unconstitutional rule making, AKA: Law making.

You’re Constitutionally correct. Nevertheless the ATF has put forth several ‘rules’ and ‘redefinitions’ that completely ignore Congress’s sole authority to enact laws.
Ghost guns, frames and receivers, pistol braces, and the list keeps growing. Congress has yet to rein the ATF in on bypassing Congressional authority. Without the legislative branch stepping up we 2A types are reduced to a lengthy process of bringing suit against the ATF / DoJ that mostly focuses on how these new rules infringe on our 2A rights. Then it all comes down to the court and the judge. If they are anti-gun we still lose.
If Congress had a collective pair, our contributions to GOA, FPC etc could be better spent promoting the shooting sports.

Then, there’s still an abundance of bills introduced in state and federal legislatures aimed to make ARs, ‘high cap’ magazines, etc actually illegal. Once a bill like that passes we have no recourse.
That’s why it’s so important to both tell your elected representatives and submit dissenting opinions of proposed new ATF ‘rules’.
It’s called use it or lose it.

[JimB..]

@BMI48219 and @JonB_in_Glencoe I can’t figure out how to use the multi-quote feature, so this will be a little mixed up.

JonB, nothing going through congress, the agency is testing the bounds of the latitude in existing law. This is exactly like how your teen interprets your instructions, striving to obtain the outcome they desire without getting in too much trouble. So “be home by 11:00” by which you meant alone and inside, is interpreted as permitting “parking” and “talking” with an attractive friend of the opposite sex in the driveway until 2am. Congress gives the agencies a lot of latitude to make rules, generally including something like “the agency has the authority to create and enforce all rules necessary to effectuate this statute.”

Being engaged in a business is described several places in federal law, really most places that require licensure define who must obtain it. ATF will argue that the definition varies by application, and that theirs is reasonable for this application. Eventually a judge will decide if it is either overly broad, incorporating private activity, or too vague, people are unable to determine if they must get a license. I don’t know how they win, but that’s a 2025-2030 issue and none of us want to be the test case.

In the meantime, I’d avoid record keeping. If they think that someone’s online activity looks like a business, they get a warrant pretty easily under this rule, but if they find no documentation and the person is smart enough to shut up, it’ll be a ton of work to make their case. Unless the seller is obviously selling to criminals or otherwise a criminal they want, I don’t know why they would bother. Even under the proposed rule you can buy and sell hundreds of guns, even making a profit, and not be in the business.

Many here think voting is a waste of time, and commenting on rules even more-so, but BMI is correct, comments to rules and letters to your congressmen do make a difference. It’s small, but cumulative. When we get beat its often because of a commitment to unwavering pressure from folks too scared of freedom to understand the effect of their actions, while our side, including NRA, tends to be inconsistent. It doesn’t take long, you don’t need to write the next great American novel, you just need to explain that what’s proposed will affect you and million of lawful gun owners, is inconsistent with historical precedent, and won’t prevent criminals from being criminals.

The rule has problems, it’s worth pointing them out. To mix metaphors, they are turning up the temp but the sky isn’t falling.

[JonB_in_Glencoe]

SNIP>>>

Many here think voting is a waste of time, and commenting on rules even more-so, but BMI is correct, comments to rules and letters to your congressmen do make a difference. It’s small, but cumulative.

I hesitated making a comment at
https://www.regulations.gov/document/ATF-2023-0002-0001
But I have changed my mind, and just now, made a comment and sent it in. Basically a edited version of my previous post.

[Bmi48219]

I wonder who actually reviews comments on proposed rules / definition changes. If it’s only some shill at the BATF the effort may not all that effective.
Contacting a particular congressman stands a better chance of being effective if enough voters make the effort. Some of these ‘representatives’ are under the impression they know what is best despite the will of their constituents. Others are just plain bought and paid for. Even then, if enough voters threaten their continued seat of office they may be convinced to listen.
It’s sad the representative process has become so corrupted. Still we don’t have a lot of options to sway legislative opinion, so we must use every means available and hope for the best.
It may be taking the long way around, but at least SCOTUS seems to be giving us a fair shake, for the most part.

[JimB..]

I wonder who actually reviews comments on proposed rules / definition changes. If it’s only some shill at the BATF the effort may not all that effective.
Contacting a particular congressman stands a better chance of being effective if enough voters make the effort. Some of these ‘representatives’ are under the impression they know what is best despite the will of their constituents. Others are just plain bought and paid for. Even then, if enough voters threaten their continued seat of office they may be convinced to listen.
It’s sad the representative process has become so corrupted. Still we don’t have a lot of options to sway legislative opinion, so we must use every means available and hope for the best.
It may be taking the long way around, but at least SCOTUS seems to be giving us a fair shake, for the most part.

In the administrative process staff and staff attorneys at ATF will review, and respond to, most or all substantive comments, their responses are public. But most comments are very repetitive and require only a brief response, so you’ll see things like “staff reviewed 72,345 comments based on a GOA template, we disagree with 1, 2, and 3 because…”

The rules are drafted by folks paid to anticipate and avoid legal challenges, they may or may not be smarter than you or me, but they have decades of experience. I believe it less persuasive to give them a legal conclusion, ie “this rule is a violation of 2a” because they’ve long anticipated that and wrote the response when drafting the rule. They can, but are unlikely to change their legal opinion on something that broad.

In this case I think comments about the administrative agency both overreaching vs statute and tying the hands of the judiciary might be productive. They do both by creating a presumption of guilt not in statute thereby shifting the burden of proof from the agency, as required by statute and consistent with the constitution, to the private citizens. The agency should have the burden to demonstrate probable cause when seeking a warrant and the judge must consider each such request based on the facts presented, without the presumption that a private citizen has violated the law. Agency staff will have to respond to that, and agency lawyers will have to assess the response, it's not perfect but it’s something. At the least, it gives everyone an understanding of what their argument in court will likely be one day.

I think it also useful to comment saying that the rule is unclear. That as a reader you don’t know if you need to be licensed or not before selling a firearm. Always good to toss in something about creating the risk of arbitrary application by the agency.

Letters to congress-critters can include that stuff, but can also include just about anything else. This is a good place to talk about agency overreach, waste of resources, creating hardship and uncertainty for you the law abiding citizen while doing little or nothing to reduce violent crime. Give them questions to ask like “if they are targeting people selling guns to prohibited persons like gang members, why not charge them under those existing statutes? And if those statutes are so ineffective, then should they be eliminated?” You’ll generally not get a meaningful response, but the letters are reviewed by staff and considered when determining what positions to take, and how firmly. Obviously it’s best to invest energy toward the offices whose positions are not opposite your own, but work with whatever you’re stuck with.

Yes some are bought and paid for. I could tell you stories that’d have you heating up the tar, but this is as much an issue on the right as it is on the left. If your congressman is pushing the boundary of the law in a direction you support you’re not going to ask if he’s bought and paid for and you’re not going to vote him out for not representing his other constituents…same applies on both sides.

I wonder if GOA or NRA has put out info about how to communicate effectively with the agency and congress. I doubt it, they really prefer that you copy and paste their letter saying that you’ll be following this issue through the group, it makes them more important.

Sorry for the rambling, I find this stuff interesting.

[Big Tom]

The sole purpose of this "rule" is making it even more blurry by declaring anybody to be "engaging in the business of selling firearms" if they sell a firearm "predominantly" for profit. "absent reliable evidence to the contrary" - meaning, you have to prove what the intent of the sale was and that there was no intent to make a profit.... Also nice to throw in the "terrorism" term - I assume just so anybody found selling a firearm for profit or intended profit can be convicted as a terrorist.

Makes me puke all day that the congress does not stop this unconstitutional behavior.

[JimB..]

The sole purpose of this "rule" is making it even more blurry by declaring anybody to be "engaging in the business of selling firearms" if they sell a firearm "predominantly" for profit. "absent reliable evidence to the contrary" - meaning, you have to prove what the intent of the sale was and that there was no intent to make a profit.... Also nice to throw in the "terrorism" term - I assume just so anybody found selling a firearm for profit or intended profit can be convicted as a terrorist.

Makes me puke all day that the congress does not stop this unconstitutional behavior.

We’re close to agreement. i don’t think they want to take anyone to court, they want scare sheeple gun owners into something like the “universal background check” that they can’t get from congress. They’ll happily use the presumption of guilt to harass folks, but the approach doesn’t seem likely to hold up in court.

By the way, you probably don’t want congress to stop them. They open up the statutes to clarify what ATF can’t do and the bargaining starts. Most likely outcome is no change, lot of time and dollars spent. This is first an issue for the courts. Letters to your congressmen can help here too, explain that an issue is being considered and explain the outcome you want. The more letters they get, the more likely they are to send letters to either ATF or even the court.

I don’t see the need for licensing retail sellers anyway, but that’s the law and there is little doubt that there are unlicensed dealers operating on most gun forums. They’ll make examples of a bunch of them, increasing risk which drives up prices and pretty soon it’s just easier to consign stuff at the LGS or require an ffl transfer. People lose inventory, a few might go to jail, most just walk away.

[Kosh75287]

Read the Second Amendment of the Constitution. requiring a middle man to approve or conduct a transfer of firearms (and all property) is an infringement of the Second amendment.

I couldn't agree more, but the ATFE is NOT in the business of ENFORCING the 2nd amendment, just destroying it.

[10x]

I couldn't agree more, but the ATFE is NOT in the business of ENFORCING the 2nd amendment, just destroying it.

Inherent and immutable (God given) rights can not be destroyed, that is what makes them rights.
Any government agent or agency that breaks their oath to uphold the US Constitution is no longer valid, nor has any power or influence or relevance other than if the act was knowing and deliberate, then it becomes treason.
It will take a president and a political party with the courage to right these wrongs

[Handloader109]

You guys, just wait a second. NONE of you actually watched the video did you? Or if you did, you MISSED the listening part. This rule change was made possible BY AN ACT OF CONGRESS LAST YEAR. Again, CONGRESS PASSED THE SAFER ACT last year and it CHANGED THE DEFINITION OF BEING IN THE BUSINESS.
And yes on a personal note, I think most gun laws, most taxes, and almost all laws that the feds have passed in the last 75 or so years are illegal under the constitution. Considering almost everything we do, make or sell interstate commerce is wrong if it doesn't cross state lines. But I'm not going to change anything by being arrested and charged with a crime. I'd only be going to jail. Just look at what has been done to the Jan 6th protestors. I posted this to WARN any of you old farts to watch what you are doing and change if needed. The feds WILL CRUSH YOU. 2nd amendment or not.

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[Handloader109]

Btw, the NRA will soon cease to exist thanks to wayne

[elmacgyver0]

I am not going to say a whole lot about this as I usually get myself in trouble, but I will say that there is not a politician on either side of the fence that likes the idea of the common citizen having weapons.
Depending on their constituency they tend to tolerate it. When is the last time you saw a pro-gun president that was no more than talk?
Maybe Teddy Roosevelt.

[JimB..]

You guys, just wait a second. NONE of you actually watched the video did you? Or if you did, you MISSED the listening part. This rule change was made possible BY AN ACT OF CONGRESS LAST YEAR. Again, CONGRESS PASSED THE SAFER ACT last year and it CHANGED THE DEFINITION OF BEING IN THE BUSINESS.
And yes on a personal note, I think most gun laws, most taxes, and almost all laws that the feds have passed in the last 75 or so years are illegal under the constitution. Considering almost everything we do, make or sell interstate commerce is wrong if it doesn't cross state lines. But I'm not going to change anything by being arrested and charged with a crime. I'd only be going to jail. Just look at what has been done to the Jan 6th protestors. I posted this to WARN any of you old farts to watch what you are doing and change if needed. The feds WILL CRUSH YOU. 2nd amendment or not.

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I did not watch, but yes am aware of the changes in the bipartisan safer communities act of 22. For those interested, start at pg 10 of https://www.congress.gov/117/plaws/publ159/PLAW-117publ159.pdf dealing with sales to folks under 21.

The big change was to remove the concept that you made a meaningful portion of your living from the activity, leaving just that you predominantly intend to earn a profit. This is why their presumptive language makes little sense, they want to presume that your intent is to make a profit and then require you to prove you’re just enhancing a collection or otherwise hobbying. I don’t know how it withstands judicial review, but the test case will likely be somebody that buys 100 glock 17’s, fits them with switches and sells them to gang members for $1,500 each. Hopefully one or more of our industry groups is working on a legal strategy.

FWIW, the statute states “ The term ‘to predominantly earn a profit' means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection: Provided, That proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism.” This language says that the state will have to prove that a seller’s primary motivation was to make a profit or that they engaged in regular and repetitive purchase and disposition for criminal purposes or terrorism. It’s a pretty high bar.

[Txcowboy52]

Since when did the ATF aquire the power to create and institute laws? The 2nd amendment is clear to me ! Maybe it’s time for the ATF to be dismantled along with several other government agencies I can think of !!

[10x]

You guys, just wait a second. NONE of you actually watched the video did you? Or if you did, you MISSED the listening part. This rule change was made possible BY AN ACT OF CONGRESS LAST YEAR. Again, CONGRESS PASSED THE SAFER ACT last year and it CHANGED THE DEFINITION OF BEING IN THE BUSINESS.
And yes on a personal note, I think most gun laws, most taxes, and almost all laws that the feds have passed in the last 75 or so years are illegal under the constitution. Considering almost everything we do, make or sell interstate commerce is wrong if it doesn't cross state lines. But I'm not going to change anything by being arrested and charged with a crime. I'd only be going to jail. Just look at what has been done to the Jan 6th protestors. I posted this to WARN any of you old farts to watch what you are doing and change if needed. The feds WILL CRUSH YOU. 2nd amendment or not.

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You are correct, gun owners must work within the law to make the laws and change the laws.
The first thing gun owners must do is become politically involved and show up at the events where the politicians are nominated to ensure that gun owners have nominated a candidate who understands the role of the Senate and Congress in making criminal and administrative law.
Those who make the laws forget that the criminal laws (felony laws) are laws to punish those who infringe on individual rights - Felony laws include threats, violence to the person, injury to a person, theft of property, and homicide
The gun laws have no violence, no threat, no harm at all to any individual other than the gun owner charged.
Gun laws are the whim of the legislators and as yet have shown no known change in criminal behavior, other than making possession and use of firearms criminal behavior - remember no victim.
Infraction of a whim of an government agency does not meet the definition of felony as the whim has no relation to violence or harm to the person in any way.
The legislators in the USA do NOT understand their obligation to the people who voted for them. They are servants of the public, no more no less. And they are bound to govern and create legislation that reconciles with the constitution.
Sending an individual to jail for an event or action with no victim is not supported by the U.S. Constitution.
Even making possession of certain firearms conditional on a tax is an infringement of the 2nd amendment.

The swamp has to be drained and every member of the Senate and Congress has to be held to their oath to uphold the constitution. Weasel word end runs (creative thinking) to suspend rights are criminal, and may in fact be treason.

The official investigation of the Jan 6 shows there is a swamp to be drained because it became a political medial circus
Your comment about "the feds will crush you" is very telling. It seems gun owners are becoming the enemy of the state - by policy

[JimB..]

Since when did the ATF aquire the power to create and institute laws? The 2nd amendment is clear to me ! Maybe it’s time for the ATF to be dismantled along with several other government agencies I can think of !!

They don’t have the power to create law, but they are tasked with implementing rules that effectuate the laws passed by congress. For example congress passes a law saying that all public school children will be given a ride to school, then an administrative agency figures out how to make that happen. The process for creating those rules has opportunity for public comment, but ultimately the agency does what it thinks best and the courts decide if either the law passed by congress or the rules created by the agency violate the constitution.

[10x]

Since when did the ATF aquire the power to create and institute laws? The 2nd amendment is clear to me ! Maybe it’s time for the ATF to be dismantled along with several other government agencies I can think of !!

There is a bureaucratic overhead that has become a swamp.
First one has to identify the swamp, then one has to drain it...

[Rapier]

We of the 1st District of FL are lucky, we have no need to waste our time explaining the 2nd to our congressman. He has already made a motion to dismantle the ATF, he authored the Stand Your Ground Law, that became law in FL and then defended the law before the Supreme Court and won. Best thing is he is smart, very smart.

[10x]

We of the 1st District of FL are lucky, we have no need to waste our time explaining the 2nd to our congressman. He has already made a motion to dismantle the ATF, he authored the Stand Your Ground Law, that became law in FL and then defended the law before the Supreme Court and won. Best thing is he is smart, very smart.

Too bad there are few people smart enough to run the country who run for office.
The USA needs more like him.

[Big Tom]

The way I read it, is that it is assumed that a profit is targeted unless "absent reliable evidence to the contrary" - meaning that the seller has to prove that there was no intent to predominantly make a profit...


.... “ The term ‘to predominantly earn a profit' means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection: Provided, That proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism.” This language says that the state will have to prove that a seller’s primary motivation was to make a profit or that they engaged in regular and repetitive purchase and disposition for criminal purposes or terrorism. It’s a pretty high bar.

[JimB..]

The way I read it, is that it is assumed that a profit is targeted unless "absent reliable evidence to the contrary" - meaning that the seller has to prove that there was no intent to predominantly make a profit...

Correct, but I think that fails in the courts. Consider getting a warrant, the LEO has to demonstrate probable cause to the judge, in this case the agency is trying to tie the hands of the judge essentially allowing them to get a warrant based only on evidence that someone sold a gun. It’s ludicrous.

[Shawlerbrook]

Here in the People’s Republic of New York it all is moot as the one party government has already eliminated private gun sales without going through an ffl ( background check). Also need the same to buy and sell ammo. If 2024 elections go sideways, that will be the law of the land.

[JimB..]

Here in the People’s Republic of New York it all is moot as the one party government has already eliminated private gun sales without going through an ffl ( background check). Also need the same to buy and sell ammo. If 2024 elections go sideways, that will be the law of the land.
This is what I’ll call Trump’s Folly. His running precludes another republican candidate, and yet not only do I expect Biden to beat him again, I expect us to lose seats in both houses of congress. If the democrats get full control things we’ll be anti 2a for at least a decade or two. Best bet for a republican victory is that both presumed nominees are dead or incapacitated, and the sooner the better!

[Handloader109]

Here in the People’s Republic of New York it all is moot as the one party government has already eliminated private gun sales without going through an ffl ( background check). Also need the same to buy and sell ammo. If 2024 elections go sideways, that will be the law of the land.Agreed, but understand, part of what is in this rule is that even going through an ffl can make you a felon if you are selling more than a single gun... again, just be careful. Reality can bite you.

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[10x]

Agreed, but understand, part of what is in this rule is that even going through an ffl can make you a felon if you are selling more than a single gun... again, just be careful. Reality can bite you.

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Making people felons for a simple sale of property is a constructive infringement on the 2nd amendment.
An end run around the rights affirmed by the 2nd amendments

[JimB..]

Agreed, but understand, part of what is in this rule is that even going through an ffl can make you a felon if you are selling more than a single gun... again, just be careful. Reality can bite you.

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I don’t read it that way, can you walk me through how a sale with transfer through an FFL would trip someone up?