New Background Check Rule

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The Verminator said:
If it does anything, this new reg only applies to a few guys who are constantly buying and selling to make money.
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ATF see the new legislation and regs differently. According to them

Rather than establishing a minimum threshold number of firearms purchased or sold, the NPRM proposed to clarify that, absent reliable evidence to the contrary, a person would be presumed to be engaged in the business of dealing in firearms when the person: (1) sells or offers for sale firearms, and also represents to potential buyers or otherwise demonstrates a willingness and ability to purchase and sell additional firearms; (2) spends more money or its equivalent on purchases of firearms for the purpose of resale than the person’s reported taxable gross income during the applicable period of time;
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https://www.atf.gov/rules-and-regul...ion-engaged-business-dealer-firearms/download p 32. Emphasis added.

If you spend the summer after highschool cutting lawns to make the last $1500 you needed (combined with your prior year's $2000 in savings) to buy a $3500 rifle, then follow your first year of college with an unpaid internship and sell the rifle to pay rent, you have spent more money on the purchase of a firearm for the purpose of resale than your reported taxable gross income in the last year.

If you lose your job and sell your guns at the rate greater than your reported taxable gross income so you can pay your mortgage, you fall within the presumption. Maybe rebutting that presumption will distract you from your other misfortunes.

It would be your burden to rebut these presumptions in civil proceedings, but the bureau also contends that these presumptions "...may be useful to courts in criminal cases..." p 462-463.
 
zukiphile said:
ATF see the new legislation and regs differently. According to them



https://www.atf.gov/rules-and-regul...ion-engaged-business-dealer-firearms/download p 32. Emphasis added.

If you spend the summer after highschool cutting lawns to make the last $1500 you needed (combined with your prior year's $2000 in savings) to buy a $3500 rifle, then follow your first year of college with an unpaid internship and sell the rifle to pay rent, you have spent more money on the purchase of a firearm for the purpose of resale than your reported taxable gross income in the last year.

If you lose your job and sell your guns at the rate greater than your reported taxable gross income so you can pay your mortgage, you fall within the presumption. Maybe rebutting that presumption will distract you from your other misfortunes.

It would be your burden to rebut these presumptions in civil proceedings, but the bureau also contends that these presumptions "...may be useful to courts in criminal cases..." p 462-463.
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Those cases sound extremely rare and would be difficult to win in court.

The BATF doesn't want difficult. They want clear, open and shut cases where they can get a guilty plea for probation.

The guilty party loses his right to own firearms and has his confiscated.

BATF is happy with that easy outcome.
 
The Verminator said:
Those cases sound extremely rare and would be difficult to win in court.
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They may be rare, but they aren't "guys who are constantly buying and selling to make money".

If your point is that the law and regs may not survive court challenge, I'd share your hope, but that doesn't mean the regs only apply to guys constantly buying and selling.

The Verminator said:
The BATF doesn't want difficult. They want clear, open and shut cases where they can get a guilty plea for probation.

The guilty party loses his right to own firearms and has his confiscated.

BATF is happy with that easy outcome.
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That's not reassuring. Was prosecuting people who actually run unlicensed gun businesses too difficult for the DOJ?

The ATF are within an agency of the federal executive. If the executive wants bump stocks to be treated as NFA items or wants to put a chill through the market of legitimate individual non-licensed gun owners, the ATF will oblige. That's what an agent does.
 
Should you actually win one of these cases in court, you will likely be broke for the rest of your life.

Don't think federal agencies won't take you to court if they think you'll win. They would just as soon you spend every last dime defending yourself. Their lawyers are already on staff. You have to hire and pay yours.
 
Bill DeShivs said:
Should you actually win one of these cases in court, you will likely be broke for the rest of your life.

Don't think federal agencies won't take you to court if they think you'll win. They would just as soon you spend every last dime defending yourself. Their lawyers are already on staff. You have to hire and pay yours.
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If anybody can name some cases like that that were brought to court I'd like to see it.

They only want the slam dunk cases where they can get a quick guilty plea in exchange for probation and loss of rights to own guns.

I've seen three of those and almost became one myself.........luck and the grace of God saved me.
 
The Verminator said:
If anybody can name some cases like that that were brought to court I'd like to see it.

They only want the slam dunk cases where they can get a quick guilty plea in exchange for probation and loss of rights to own guns.

I've seen three of those and almost became one myself.........luck and the grace of God saved me.
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I can appreciate how informative one's own experiences can be, but that clearly isn't the only kind of case federal agencies bring.

Abramski, Sackett v. EPA and West Virginia v. EPA are all cases in which an agency explored the limits of its authority. In Abramski, the issue was one that had been decided against the government in other circuits. In Sackett and West VA., the agency involved pressed forward with a power that wasn't constitutionally valid.

Counting on a federal agency to be lazy and risk averse isn't a flawless strategy.
 
Did either of those cases involve "lose your job and sell your guns at the rate greater than your reported taxable gross income so you can pay your mortgage," or........

"spend the summer after high school cutting lawns to make the last $1500 you needed (combined with your prior year's $2000 in savings) to buy a $3500 rifle, then follow your first year of college with an unpaid internship and sell the rifle to pay rent..........."?
 
The Varminter said:
Did either of those cases involve "lose your job and sell your guns at the rate greater than your reported taxable gross income so you can pay your mortgage," or........

"spend the summer after high school cutting lawns to make the last $1500 you needed (combined with your prior year's $2000 in savings) to buy a $3500 rifle, then follow your first year of college with an unpaid internship and sell the rifle to pay rent..........."?
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My apologies. I thought your request for similar cases was directed to Bill DeShiv's observation about the government pressing cases it may well lose and the expense involved in defending oneself from federal prosecution.

No, I can provide you no cases that match those or any other fact patterns under a regulation that is not yet effective.

If those fact patterns fit the law and reg, on what basis do you believe the government would find prosecuting the described behavior difficult?
 
a person shall be presumed to be engaged in the business of dealing in firearms as defined in paragraph (a) of this section, absent reliable evidence to the contrary,
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Isn't this a "provide reliable evidence that you stopped beating your wife" kind of thing???

The average gun owner does not buy and sell enough to be in violation.

If it does anything, this new reg only applies to a few guys who are constantly buying and selling to make money.
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TODAY.....

The big "what if" is what happens if the firearm ends up being used or transferred illegally.
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Do you mean what happens after you legally sold an item?? (gun, rock, car, anything you can legally sell)

I'd say your legal responsibility for what happens to or with that item ends when you sell it.
 
I'd say your legal responsibility for what happens to or with that item ends when you sell it.
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You might say that--but the investigators of a crime have to follow the trail wherever it leads. The "private sales" to family or friends implies that your personal knowledge of them reduces the necessity for a background check. Note that recently the parents of a kid who committed mass murder with a firearm that was legally purchased and passed on to him are getting sent to the slammer for a very long time for having prior knowledge of their son's behavior but not taking proactive action.
 
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zukiphile said:
My apologies. I thought your request for similar cases was directed to Bill DeShiv's observation about the government pressing cases it may well lose and the expense involved in defending oneself from federal prosecution.

No, I can provide you no cases that match those or any other fact patterns under a regulation that is not yet effective.

If those fact patterns fit the law and reg, on what basis do you believe the government would find prosecuting the described behavior difficult?
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Cases are difficult when you have to take them to trial.

They involve time, making limited staff available and expense (plus the possibility of losing).

That's why the BATF creates cases where the perp has no chance of winning and is eager to accept a felony, probation and the loss of the right to own guns rather than go to prison.

This is easily accomplished by selecting a seller who meets requirements and having agents team up to sell him a gun and then another agent buy the gun. Just a few transactions and they have iron clad examples of him selling for profit.

As I said, I've experienced this, seen friends get a felony and I was lucky enough not to be charged.
 
The Verminator said:
That's why the BATF creates cases where the perp has no chance of winning and is eager to accept a felony, probation and the loss of the right to own guns rather than go to prison.
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That's why a change to a broader standard that includes people who clearly are not dealers under the prior standard is disconcerting.

Without discounting the work of trial, it isn't especially difficult to prosecute a person whose behavior fits the law under which he is charged. The examples I provided would be the easy, black and white application of the new reg for which a prosecutor might expect a plea because the defendant's chances are so poor.

Your observation illustrates why a reg that targets people who aren't dealers in any reasonable sense for prosecution or harassment is a problem.
 
zukiphile said:
That's why a change to a broader standard that includes people who clearly are not dealers under the prior standard is disconcerting.

Without discounting the work of trial, it isn't especially difficult to prosecute a person whose behavior fits the law under which he is charged. The examples I provided would be the easy, black and white application of the new reg for which a prosecutor might expect a plea because the defendant's chances are so poor.

Your observation illustrates why a reg that targets people who aren't dealers in any reasonable sense for prosecution or harassment is a problem.
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The standard has not changed.

It has always (Well, for over fifty years) been illegal to sell guns as a source of income without a license.

The illustrations from my experience were people who were doing exactly that.

And NOT going to trial saves a huge expense for the prosecutors.
 
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It has always (Well, for over fifty years) been illegal to sell guns as a source of income without a license.
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No argument about that, the issue is that with the redefinition where anyone selling a gun for a profit COULD be used to classify them as dealers.

And NOT going to trial saves a huge expense for the prosecutors.
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No, it doesn't save squat. Not in terms of money, anyway. Prosecutors don't get paid by the win. They are on salary. Every penny of the allocated budget gets spent, on one case or another.

Bureaucratic agencies don't "save" money (on anything). Not trying a case you don't think you can win doesn't save any money, it just allows the money to be allocated to something else.

And, frequently, if they don't spend ALL of their budget, the next year's budget is reduced. Hardly an incentive to save money.

Prosecutors do get evaluated on how many cases they win, compared to how many they bring to trial, but that is a different thing.
 
mehavey said:
Cut to the chase:

https://www.youtube.com/watch?v=GSxU345wu9A

are you a dealer.... or not?
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After 20 minutes off my life that I'll never get back.........(wordy guy).

I conclude that these "New" rules will apply to about one percent of us average gun owners who buy and sell a gun once in a while.

No need for panic.

Unless you're selling guns for profit and doing it often and repetitively.

Which has been Illegal since 1968.
 
Unless you're selling guns for profit and doing it often and repetitively.
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My concern is not for today, or even the near future, but some some point beyond that when "mission creep" bureaucratic kingdom expansion, and an administration with an agenda more strict than we currently have turn "often and repeatedly" into ONCE, or twice in a lifetime.

Likely? not now,
Possible? with the law/regulation in place as a foundation, absolutely possible.
and even likely when/if the administration judges they have enough political and public support to get away with it.
 
44 AMP said:
My concern is not for today, or even the near future, but some some point beyond that when "mission creep" bureaucratic kingdom expansion, and an administration with an agenda more strict than we currently have turn "often and repeatedly" into ONCE, or twice in a lifetime.

Likely? not now,
Possible? with the law/regulation in place as a foundation, absolutely possible.
and even likely when/if the administration judges they have enough political and public support to get away with it.
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Isn't what we're discussing here "mission creep"? The federal law hasn't changed, but the BATFE is now changing the rules (moving the goalposts). We've seen this before, with bump stocks and 80% receivers. Today's completely legal toy is tomorrow's contraband.
 
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