24 Senators Demand "Engaged in The Business of Selling Firearms" Defined by EO

[62coltnavy]

Kozak6 is entirely correct:the purpose is to require every gun sale to be accompanied by a background check. Every FFL (i.e. gun dealer) is required to run a background check, and so by defining any seller, licensed or not, as "being in the business", all sales require a background check.

This of course goes back to the nonsensical belief that background checks will somehow reduce the number of sales to prohibited persons by essentially eliminating private sales. That this is nonsensical is established by the fact most prohibited persons obtain firearms through illegal sales, whether they be private sales to known felons, straw purchases, street purchases or simple theft, and not through gun show sales (where most sellers are dealers any way). Further, the ATF rarely prosecutes straw buyers. Third, the bandied about statistic of "40 %" of gun show sales do not involve background checks is not supported by the original--and only--study on the subject performed back in 1994, which involved a small number of respondents and overlapped the enactment of the Brady Bill that first established the background check law. [The questionnaire asked only if respondents had obtained firearms without a background check, but not when or how, and thus included pre-Brady acquisitions as well as gifts, inheritances, and inter-familial transfers, as well as private sales, none of which required background checks before or after Brady.]

 

[johnwilliamson062]

Fifty seems pretty politically feasible to me. That is selling more than four guns a month every month. One a week. I don't think I have ever been acquainted with anyone who is that active. MAYBE someone I know with a 03 FFL, but I'll bet they are only at about half that, most of which is on their FFL anyways..

Is anyone acquainted with a person who is selling 50 guns a year and doesn't seem to be crossing the line?

On the plus side, they would then pretty much have to approve a 03 FFL for anyone making more than 50 sales a year or grant an exception, I think they would be on pretty soft ground legally. If I apply and indicate I will be making 50 purchases a year and they deny based on other factors how does that not go my way in court? Our way since I won't be the plaintiff and one of the legal support groups will be footing the bill. I could see a definition that is high like 50 being positive for us.

 

[buckhorn_cortez]

Fifty seems pretty politically feasible to me. That is selling more than four guns a month every month. One a week. I don't think I have ever been acquainted with anyone who is that active. MAYBE someone I know with a 03 FFL, but I'll bet they are only at about half that, most of which is on their FFL anyways..

Is anyone acquainted with a person who is selling 50 guns a year and doesn't seem to be crossing the line?

I wrote specifications for construction projects for nearly 30 years. Specifications become part of the contract between the Owner and Contractor, so, in effect, you are writing a legal document when you write specifications.

This means you have to be extremely careful how things are worded in specifications as you may end up in court litigating the outcome of what you've written.

The problem with putting an exact number on something is that people will use that number as the defined limit and creatively skirt the specification, law, or regulation.

In specifications, you try to use performance requirements rather than prescriptive requirements whenever possible. You try and limit the use of exact numbers unless the Contractor has to provide a specific amount (e.g. 10 computer workstations); or there is a performance requirement that involves a number (e.g. concrete shall be 4,000 psi after 28 days).

In the case of 50 guns, I wouldn't be the least bit surprised to find out (as an example) dad handled 49 guns, mom handled 49 guns, grandma handled 49 guns, etc. - all out of the same household during the year.

Nobody broke the law because no one handled 50+ guns, but it's quite obvious that a business was being run as 147 guns were passed through the household.

All you have to do is look at Obamacare as the illustration of the point. One of the measurement points for providing healthcare is when an employee works 30+ hours-per-week. Suddenly, many job descriptions became 29 hours-per-week.

If numbers worked really well in laws, then the Federal Government wouldn't have 75,000+ pages of tax law interpretations, and Obamacare wouldn't require the current 14,000+ pages of "clarifications" and interpretations.

The current gun law is based on performance criteria, "...with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms."

Personal collecting doesn't involve the "principal objective of livelihood and profit..." while running a business does.

I will guarantee that putting a metric (number measurement) will NOT make a law better or clearer, it will only define the law avoidance point which people will creatively get around.

That's why I've asked the question - EXACTLY how would you word the regulation?

 

[kilimanjaro]

I think Mom and Dad, and the kids Susie and Chip, together are not going to be able to sell 49 guns apiece and get away with it, most states are community property. Let's see Susie and Chip show us a receipt that says they are the owner.

The problem with a 50-gun metric, to me, is that as soon as Joe Nutbag shoots someone with the 37th gun sold, that metric is going to be reduced by law to 25 guns. Then 10 guns. And, finally, no private sales. Zero.

The gun grabbers know this. When you can't get the camel into the tent, you have to invent the camel's nose.

 

[buckhorn_cortez]

Because of the way in which the applicable law defines a dealer in firearms, it is not clear when someone who believes himself to be a hobbyist firearms collector, or is otherwise engaged in what he believes to be routine gun trading, is engaging in the business of being a dealer and thereby risks federal prosecution for being an unlicensed gun dealer.

Is the person is using gun trading as a way to generate money or simply collect guns? If they're using guns as a source of income, then they're a business and require an FFL.

If the person is unclear whether they need a license or not, then they need to consult with both an attorney and the BATF.

If you're unsure of your status, then it is up to you to find out from a legal standpoint and from the agency involved in the regulation.

 

[buckhorn_cortez]

I think Mom and Dad, and the kids Susie and Chip, together are not going to be able to sell 49 guns apiece and get away with it, most states are community property.

That has nothing to do with the 50 number as you're now conflating state laws with federal laws. The state community property law has NOTHING to do with a federal law setting a limit of 50 guns.

As long as each person in the household obeys the less than 50 number, they've complied with the federal law - even though 147 guns have been handled.

If the household does all of the business in cash or trades, they don't keep any books and don't declare any of the money on their income tax - they're not a business and in compliance with the "less than 50" number.

Again - setting a number only creates the law avoidance point.

 

[Frank Ettin]

...Personal collecting doesn't involve the "principal objective of livelihood and profit..." while running a business does....

It depends on exactly what you're doing and how you're doing it. You don't have the final say on the question. You might think you're only "personal collecting"; but if the judge and jury disagree, you'll be going to prison anyway.

See post 8 for a look at how courts have dealt with the question.

....most states are community property....

Nope, most States are not community property States. Only nine States are community property States. In the rest common law marital property principles apply.

...Is the person is using gun trading as a way to generate money or simply collect guns? If they're using guns as a source of income, then they're a business and require an FFL....

That's a gross oversimplification.

Under federal law, one needs an FFL to engage in the business of a dealer in firearms. "Engaged in the business" is defined at 18 USC 921(a)(21)(C), emphasis added:

(21) The term “engaged in the business” means—

(A)...

(B) ...

(C) as applied to a dealer in firearms, as defined in section 921 (a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms;...

The operative concepts are (1) devoting time, attention and labor; (2) doing so regularly as a trade or business; (3) the repetitive purchase and resale of guns; and (4) intending to make money.

"Livelihood" simply means:

1: means of support or subsistence

Nothing in the statutory definition of "engaged in the business" requires that it be one's only business or means of support. It could be a side business, a secondary business or one of several ways you have of bringing money into the household. What matters is that you're doing it regularly to make money. You don't even necessarily need to make a profit to be "engaged in business." People go into business all the time and wind up not making money. It's not that they're not engaged in business; it's just that they're not very good at it.

But an occasional sale is not being "engaged in the business." Where is the the line between an occasional sale and the repetitive purchase and resale? That's not clear from the statutes, and I don't know if there's been any clarification judicially. Again, see post 8 for citations showing how courts have dealt with the issue.

Money is fungible. The money spent on guns and shooting is interchangeable with the money spent to pay bills and buy groceries. I can set up different operating accounts to track my money, but it's all my money. When my finances are considered in the aggregate, the sources of the money don't change the character of the money, nor does what I spend it on change the character of the money. It's just my money. (The times tracking is important are for keeping proper track of marital property, e. g., distinguishing between separate property and marital/community property; or when amounts of money from certain sources, or amounts paid, might be subject to different tax treatment, e. g., capital gains or municipal bond income or medical expenses.)

The only way to really keep finances truly separate is by creating different legal entities, like corporations, for different activities. Of course if you have a corporation for your gun buying and selling, that looks even more like a business.

So the bottom line is that if a federal prosecutor, looking at the totality of the circumstances and all the factors discussed in the various cases, decides that he can first convince a grand jury that there's probable cause to believe you're buying and selling guns as a trade or business, and then convince a trial jury beyond a reasonable doubt that you're buying and selling guns as a trade or business, he very well might prosecute you.

...If the household does all of the business in cash or trades, they don't keep any books and don't declare any of the money on their income tax - they're not a business....

Not necessarily. They might just be running their business sloppily (and violating some tax laws along the way).

 

[johnwilliamson062]

What about defining a number that, when under is definitely NOT "engaged in the business." 'Under fifty you definitely aren't, over 50 you better be careful.' I know that isn't what the 24 Senators are after, but I would sure like it. I would do a lot more picking up deals I find whether I was interested in the specific firearm or not. I pass on a lot of 'need cash today ads' where I know I could resell the gun over a few weeks for more than the current seller is asking. Take it out to shoot a little and get familiar with the design then send it on its way for a little extra cash.