Flea Market Guns

[Hunter Customs]

This past weekend was the White Cloud-Sparks Kansas flea market.
This is a big event that takes place twice a year with vendors from all over the country.

One thing I've noticed is, there seems to be more and more vendors selling firearms; it was very true this year.
I actually see more firearms at this event then I do at gun shows.

These are not vendors with FFL's so there's no paper work involved in the purchase of any firearm.
One vendor had at least 25 handguns and 20 long guns displayed.

I ask him what was required to purchase any of his guns, his reply was " it's cash and carry no questions ask".
I would say it kind blows a hole in all the BS required to purchase a firearm legally from an FFL.

Best Regards
Bob Hunter
www.huntercustoms.com

 

[g.willikers]

Ahh, a remnant of how things used to be before 1968.
There once was a huge, long running, monthly flea market, in a small town near us.
A very large part of it was devoted to guns.
Probably thousands of them on any given warm weather month.
There was even a place to try them out.
All gone, now, the land got too valuable.
And the laws got too strict.
Some of the good old days really were.

 

[RodTheWrench]

It's still the same in Utah, lots of guns at shows, both private and dealer. Of course you get the Tupperware and frufru crap these days that didn't used to be there, but it's not too bad. As long as two people can show each other they are both Utah residents(drivers license works), you don't have to do any paperwork.

 

[Revoltella]

A few years ago my wife and I attended a Civil War show that was basically a flea market. There were a couple of tables with "modern" guns. At one, we found a very early production Savage No.4 Mk. I (not a Mk.I*) Lee Enfield. My wife said "You've been looking for one of these, you should get it." $200 later I left with it.

There was a gun show in the next building. I went to the bayonet guy, and he had a Savage marked bayonet for it. I think I paid like $20 for it.

 

[Slamfire]

The BATF will shut down non FFL vendors who are obviously making a living from selling guns. Without a doubt someone snitched to the Feds.

Happened in my neck of the woods a couple of decades ago, since the White House and Congress hate guns and gunowners even more, I expect they will be even more diligent.

 

[RodTheWrench]

The law is really murky when it comes to that. Someone that gets a table even at 6 gun shows a year can't be accused of having a "gun business". It's a hobby, just a private collector swapping stories, sometimes selling or trading a gun - that's it.

 

[Tom Servo]

Someone that gets a table even at 6 gun shows a year can't be accused of having a "gun business"

Yes, he can. That's the problem. The law doesn't give specific numbers, but someone is determined to be "engaged in the business" if he 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

Where is that line drawn? It's hard to say, but an enterprising or enthusiastic agent could try to make the case for dealing without a license if someone's showing up often at the same venue with a significant number of guns for sale.

 

[Hunter Customs]

The law is really murky when it comes to that. Someone that gets a table even at 6 gun shows a year can't be accused of having a "gun business". It's a hobby, just a private collector swapping stories, sometimes selling or trading a gun - that's it.

Rod I'll have to go with Tom on this one.

I actually seen a fella at a KC gun show shut down for this very thing.
I believe the agent that shut him down stated that the fella was circumventing the law and was operating a gun business with out the proper license.

With all the guns being displayed at the flea market now I will not be surprised if the ATF shows up.
I know the fella with all the handguns, selling them no questions ask may be in a lot of trouble if the ATF does show up.

Best Regards
Bob Hunter
www.huntercustoms.com

 

[johnwilliamson062]

The last couple of years there have been a lot of people put in the position of having to sell guns to pay rent. I don't think it is automatic guilt if someone shows up to one event trying to sell 45 guns. Quite a few people here have more in their personal collection.

I can go on multiple sites and arrange a FTF for any type of gun today if I want. Have been able to for years. Even so, it seems most guns used in crimes don't enter the market that way. Straw purchases and theft still seem to be the path of choice.

 

[BigD_in_FL]

Just went to a flea market today and found a mint S&W revolver from a person selling off what she inherited from her dad; now the guys who are this location every week and always seem to have a table of guns from their "personal collection", well.............they do check to see if you have a legal ID

No different than the guy across the way selling samurai swords without some form of federal permit, or the crossbows, axes, and other tools that can be used to kill folks if so desired

 

[BillM]

Interesting how the laws differ in the various states.

Here in Oregon, if there are 25 or more guns for sale "on
the premises" it's a gun show, and background checks are
required on all sales, dealer or not, even in the parking lot.

Less than 25 guns? No check required. The range I belong to
has an annual buy/sell/swap get together for members. There
are never more than 24 guns for sale.

 

[Hawg]

I've bought guns at gunshows with no background check, just a drivers license check to see if you live in the state.

 

[Frank Ettin]

...No different than the guy across the way selling samurai swords without some form of federal permit, or the crossbows, axes, and other tools that can be used to kill folks if so desired

The difference is that no federal license is required to be engaged in the business of selling samurai swords, crossbows, axes, etc.

On the other hand, see post 7. With regard to guns a major question for the seller would be when under applicable law he becomes a "dealer" and therefore requires a license. And that can be a hard question to answer.

1. 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.
       
       
     • So the question becomes whether there's been any useful judicial clarification.
   
   
2. Let's look at what some courts have said.
   
   
   • The Third Circuit, in upholding a conviction of dealing in firearms without a license noted (U.S. v. Tyson, 653 F.3d 192 (3rd Cir., 2011), at 200-201, emphasis added):

     ...By the statute's terms, then, a defendant engages in the business of dealing in firearms when his principal motivation is economic (i.e., “obtaining livelihood” and “profit”) and he pursues this objective through the repetitive purchase and resale of firearms. Palmieri, 21 F.3d at 1268 (stating that “economic interests” are the “principal purpose,” and “repetitiveness” is “the modus operandi ”). Although the quantity and frequency of sales are obviously a central concern, so also are (1) the location of the sales, (2) the conditions under which the sales occurred, (3) the defendant's behavior before, during, and after the sales, (4) the price charged for the weapons and the characteristics of the firearms sold, and (5) the intent of the seller at the time of the sales. Id. (explaining that “the finder of fact must examine the intent of the actor and all circumstances surrounding the acts alleged to constitute engaging in business”). As is often the case in such analyses, the importance of any one of these considerations is subject to the idiosyncratic nature of the fact pattern presented...

     
     
   • And the Fifth Circuit noted (United States v. Brenner (5th. Cir., 2012, No. 11-50432, slip opinion), at 5-6, emphasis added):

     ...the jury must examine all circumstances surrounding the transaction, without the aid of a "bright-line rule". United States v. Palmieri, 21 F.3d 1265, 1269 (3d Cir.), vacated on other grounds, 513 U.S. 957 (1994). Relevant circumstances include: "the quantity and frequency of sales"; the "location of the sales"; "conditions under which the sales occurred"; "defendant's behavior before, during, and after the sales"; "the price charged"; "the characteristics of the firearms sold"; and, "the intent of the seller at the time of the sales". Tyson, 653 F.3d at 201.

     
     
   • The Sixth Circuit noted (United States v. Gray (6th Cir., 2012, No. 11-1305, slip opinion), at 8):

     ...However, "a defendant need not deal in firearms as his primary business for conviction." United States v. Manthey, 92 F. App'x 291, 297 (6th Cir. 2004)....

     
     
   • And in upholding Gray's conviction the Sixth Circuit also noted (Gray, at 8-9):

     ...We have previously held that evidence was sufficient to support a conviction under § 922(a)(1)(A) where it showed (1) that the defendant frequented flea markets and gun shows where he displayed and sold guns; (2) that the defendant offered to sell guns to confidential informants on multiple occasions and actually sold them three different guns on two different occasions; (3) and...that the defendant bought and sold guns for profit. See United States v. Orum, 106 F. App'x 972, 974 (6th Cir. 2004)...

     
     
   • In affirming a conviction of dealing in firearms without a license, the Ninth Circuit stated (U.S. v. Breier, 813 F.2d 212 (C.A.9 (Cal.), 1987), at 213-214, emphasis added):

     ...Courts have fashioned their own definitions of the term. For example, we have previously stated "that where transactions of sale, purchase or exchange of firearms are regularly entered into in expectation of profit, the conduct amounts to engaging in business." United States v. Van Buren, 593 F.2d 125, 126 (9th Cir.1979) (per curiam). In United States v. Wilmoth, 636 F.2d 123 (5th Cir. Unit A 1981), the Fifth Circuit stated that to prove the status of the accused as one engaged in the business of dealing in firearms, "the Government must show a greater degree of activity than the occasional sale of a hobbyist." Id. at 125. "It is enough to prove that the accused has guns on hand or is ready and able to procure them for the purpose of selling them from time to time to such persons as might be accepted as customers." Id.; accord United States v. Carter, 801 F.2d 78, 82 (2d Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 657, 93 L.Ed.2d 712 (1986); United States v. Burgos, 720 F.2d 1520, 1527 n. 8 (11th Cir.1983)....

   
   
3. So the bottom line is that there really doesn't appear to be a safe harbor, i. e., a set of specific, clearly defined conditions which, if satisfied, definitely get you off the hook.

 

[RodTheWrench]

"Quote: 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"

That's why I said the law is murky. If you are a private collector that just enjoys having a table where you can display what you have, swap stories, look at other cool guns and maybe buy one here and there, sell one here and there or trade one here or there, you're fine.

 

[jmr40]

Very common at Flea Markets in Georgia and Alabama. They have large sections of Flea Markets set up with guys selling firearms. I've never found much more than overpriced junk at any of the ones I've been to, but they are there.

 

[kozak6]

It's always fun to see what kinds of guns are at the flea markets.

Usually, it's not anything interesting, and occasionally at fair prices. More often, there are those who have confused the sentimental value with the monetary value.

Sometimes, there are those who have no idea what they have, but don't even care.

"This har is a Swiss Navy WWI rifle called a Mausenfield. You can have it for just $800. The museum offered $3000, so you are really getting a steal."

"No, that's a Mosin Nagant M44. Russian, I think. Why is it dripping used motor oil?" I exaggerate, but not by much.

There usually aren't any amazing deals. There is such a thing and I have seen them with my own eyes, but they only seem to occur when I'm broke.

 

[Skans]

I rarely if ever see handguns for sale at flea markets. Occasionally I'll find a shotgun or rifle. 99% of the time, the rifles are so far from anything I would want (even for FREE), that I wouldn't give it a first glance if it was at a gun show. One time, about 4 years ago, I saw a stainless Ruger 30-06 M77 Mark II that I glanced at until I saw the $800 price tag....that was a high price for a used M77 4 years ago, but at least it was a good, solid gun.

 

[lcpiper]

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

I suppose if one makes no profit and always attempts to simply replace his costs alone, then it becomes harder to show a "principal objective of livelihood and profit". Some simple record keeping and bill of sales would be useful.

 

[Frank Ettin]

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

I suppose if one makes no profit and always attempts to simply replace his costs alone, then it becomes harder to show a "principal objective of livelihood and profit". Some simple record keeping and bill of sales would be useful.

Except see the cases I cited in post 13. Federal courts of appeal are explicitly telling us the factors that are to be considered in deciding if someone is "engaged in the business" of dealing in firearms. We need to listen to what the courts are telling us and not substitute our own judgment or interpretation.

We read the cases because in future cases other courts will make their decisions based on what prior courts have said. It is critical to understand what courts have done in past cases in order to be able to reasonably anticipate what courts are likely to do in the future.

 

[noelf2]

Yeah there's a huge flea market same weekend here in Virginia, in Hillsville. Twice a year practically the whole town is devoted to it. There's a gun show there as well, but I've never found any good deals there. In the past, there were good deals out and about in the flea market area but this last weekend all the sellers wanted new prices for old scratch and rusted guns. Turned me off so bad I don't think I'll go back anymore.