New Background Check Rule

[mehavey]

And no one -- at least no ordinary/common man -- has a clue what it really means in terms of ordinary practices supposedly within the law ... before.

As to the Law:

It's really as simple as that

Than simply answer the questions posed in Post #110 ... if it's really as simple as that.
All of those questions have posed by others, on other guns forums, to no consistent answer.

 

[s3779m]

And no one -- at least no ordinary/common man -- has a clue what it really means in terms of ordinary practices supposedly within the law ... before.

As to the Law:Than simply answer the questions posed in Post #110 ... if it's really as simple as that.
All of those questions have posed by others, on other guns forums, to no consistent answer.

When a law is written so vague that the common man, the EDUCATED common man, can not understand for sure what the law states, the law will be interpreted by those who wish to enforce it. Everything is on the table, every situation discussed is now a possibility. The law could have been written so everyone could understand it. It wasn't. The possibility of getting arrested for selling a gun you no longer want to a friend may not get you arrested, BUT, it could, it's in the law now.

 

[JohnKSa]

And no one -- at least no ordinary/common man -- has a clue what it really means in terms of ordinary practices supposedly within the law ... before.

Here's what it means in terms that any common/ordinary man can easily understand.

Don't deal firearms without a license.

Than simply answer the questions posed in Post #110 ... if it's really as simple as that.

As I said, your questions don't make sense based on what the rule says.

If you really care about this topic, then read the rule so we can discuss what it says.

The possibility of getting arrested for selling a gun you no longer want to a friend may not get you arrested, BUT, it could, it's in the law now.

Where does it say that in the law?

 

[s3779m]

Where does it say that in the law?

That is the problem with this law, the vagueness.

by eliminating the
requirement that a person’s ‘‘principal
objective’’ of purchasing and reselling
firearms must include both ‘‘livelihood
and profit’’ and replacing it with a
requirement that the person must intend
‘‘to predominantly earn a profit.’’ The
BSCA therefore removed the
requirement to consider income for
‘‘livelihood’’ when determining that a
person is ‘‘engaged in the business’’ of
dealing in firearms at wholesale or
retail. The definition of ‘‘to
predominantly earn a profit’’ now
focuses only on whether the intent
underlying the sale or disposition of
firearms is predominantly one of
obtaining pecuniary gain.

I have seen several posts on this forum which tell me that this law and the ATF are not going after me for selling a gun to a friend, or a stranger. But I have yet to see where the ATF has said that. But I would suggest to anyone, if a friend wants to buy a gun from you that you no longer want, don't sell it to him in the parking lot of a gun show.

 

[ligonierbill]

Biden wanted to say he closed the (nonexistent) "gun show loophole", and it seems the rulemaking attempted to say in effect, "If you're selling at a gun show, you're a dealer." But they can't say that. They have to stay within spitting distance of the statute. And SCOTUS seems to be intent on redefining that. So they try to walk the line, then add a Q&A that tries to answer all the "what if's". Of course, that is not possible. And most Americans don't trust the government, often with good reason. So, we'll just have to see how it plays out in actual enforcement and litigation.

Meanwhile, gun shows already ain't what they used to be. Is our doddering POTUS succeeding in shutting them down?

 

[s3779m]

Biden wanted to say he closed the (nonexistent) "gun show loophole", and it seems the rulemaking attempted to say in effect, "If you're selling at a gun show, you're a dealer." But they can't say that. They have to stay within spitting distance of the statute. And SCOTUS seems to be intent on redefining that. So they try to walk the line, then add a Q&A that tries to answer all the "what if's". Of course, that is not possible. And most Americans don't trust the government, often with good reason. So, we'll just have to see how it plays out in actual enforcement and litigation.

Meanwhile, gun shows already ain't what they used to be. Is our doddering POTUS succeeding in shutting them down?

I believe you're on the right track. I'm no lawyer, no fortune teller, not a ton of education, but I have been around the block enough times to ever believe the government says what it means. Here's a wild ass guess, this law is just another step towards a national gun registry. Next "rule" will be every purchase/sale will have to have a background check. Every gun you own will have to have proof that you and that gun went through the process. There is only one way to prove that, a national gun registry. Yeah, that's pretty far fetched except for the fact that there are some in congress right now who have said that, and from what I have seen, "shall not be infringed" means nothing to many in power.

 

[zukiphile]

That is the problem with this law, the vagueness.

Is that the problem or the feature?

Merrick Garland is a smart fellow. If the regs only mean don't be an unlicensed dealer in arms, he would know how to have written that. Of course, where the BSCA has changed the definition of the population who are dealers, just saying that people shouldn't be unlicensed dealers doesn't address meaningfully the questions raised by Garland, the EO and the Act.

The Department does not agree with commenters that the undefined terms in the rule are vague. In the absence of specific definitions, readers should use the ordinary meaning of these statutory terms and other words in the regulatory text. This includes the definition of the term “occasional,” which means “infrequent,” or “of irregular occurrence,”123 and the term “repetitively” as it applies to a person engaged in the business as a dealer, which means that a person intends to or actually does purchase and resell firearms again. With regard to the comment that the term “repetitive” should be limited to a period of time, again, this term, like the term “occasional,” should be read consistently with its ordinary meaning.124 Consistent with that ordinary meaning, a person is less likely to be understood as “repetitively” selling firearms if they do so twice over five years than if they do so several times over a short period.

https://www.atf.gov/rules-and-regul...ion-engaged-business-dealer-firearms/download at p 89.

According to Garland, you are less likely to be prosecuted for selling twice in five years that if than if you do so "several times over a short period", but he does not rule out a life altering prosecution over it. Without the legislative limit on the dealer population of those with "a principle objective of livelihood", whether you are prosecuted will turn on what the executive branch thinks is occasional, repetitive and short. Can he tell you what those words will mean in the specific context of this reg? His magic eight ball says Better not tell you now.

If Merrick Garland can't provide a more narrow and precise explanation, then it is unreasonable to expect anyone else to understand the regs more precisely.

 

[Aguila Blanca]

If Merrick Garland can't provide a more narrow and precise explanation, then it is unreasonable to expect anyone else to understand the regs more precisely.

Thank you for weighing in as an actual, practicing attorney. When laws (and regulations) are intentionally written vaguely, I think it's prudent for us to sit up and take notice.

 

[JohnKSa]

That is the problem with this law, the vagueness.

You claimed that there is something in the law that puts a person in jeopardy for selling a gun to a friend. That's not a complaint that the law is vague, that's a specific claim.

Please quote the portion of the law that indicates that a single sale of a privately owned firearm to a friend makes a person subject to arrest. The law includes the terms 'repetitive' and 'repetitively' which makes it very difficult to interpret it as referring to a single sale.

If that weren't enough, it also specifically states that a single sale, in the absence of other evidence would not qualify as dealing in firearms.

According to Garland, you are less likely to be prosecuted for selling twice in five years that if than if you do so "several times over a short period", but he does not rule out a life altering prosecution over it.

To be fair, that's an example taken from an explanation that the term 'repetitively' should be taken to have its ordinary meaning as opposed to a specifically provided legal definition. He could have just as easily said: "The longer the interval and the fewer the sales, the less likely the behavior is to be interpreted as repetitive." The meaning would be the same.

Furthermore, the repetitive nature of the sales is neither the primary nor the sole criterion for determining if a person is dealing in firearms, so it's inaccurate to make it seem like taking "predominately for livelihood" from the law makes 'repetitive/repetitively' the only remaining criterion.

Look, I'm not in favor of the new law, but I don't think that you're doing anyone any favors by taking a casual example from one explanation in the 80 something pages comment section and making it seem like it is not only part of the law but is providing the sole criterion for prosecution under the new law. I think it would be a lot more helpful to talk about what the law does say and how it says it. If you are honest about it, you will have to admit that 2 sales in 5 years is not going to put a person in jeopardy of prosecution in the absence of other evidence.

Ok, folks. I'm going to, once again, strongly suggest that people who find this topic of interest, should read the actual rule for themselves. It is not difficult to understand, and there are pages and pages of explanatory text for those who do need a bit of help.

 

[zukiphile]

That is the problem with this law, the vagueness.

You claimed that there is something in the law that puts a person in jeopardy for selling a gun to a friend. That's not a complaint that the law is vague, that's a specific claim.

The claim is that a law so vague that one can't be sure when he isn't at risk of prosecution leaves him in jeopardy.

Please quote the portion of the law that indicates that a single sale of a privately owned firearm to a friend makes a person subject to arrest. The law includes the terms 'repetitive' and 'repetitively' which makes it very difficult to interpret it as referring to a single sale.

If that weren't enough, it also specifically states that a single sale, in the absence of other evidence would not qualify as dealing in firearms.

Emphasis added. Properly understood that means that not even a single sale is required to be found to be an unlicensed dealer; it's the other evidence that may make you a defendant.

To be fair, that's an example taken from an explanation that the term 'repetitively' should be taken to have its ordinary meaning as opposed to a specifically provided legal definition. He could have just as easily said: "The longer the interval and the fewer the sales, the less likely the behavior is to be interpreted as repetitive." The meaning would be the same.

Furthermore, the repetitive nature of the sales is neither the primary nor the sole criterion for determining if a person is dealing in firearms, so it's inaccurate to make it seem like taking "predominately for livelihood" from the law makes 'repetitive/repetitively' the only remaining criterion.

Of course, no one has done that. I noted that the BSCA removes that element, a limit on its scope, from the definition. Garland's "clarification" is littered with terms that lack specific meaning unless compared to a real standard for frequency, number or duration, but the ones in the paragraph I quoted were occasional, repetitive and short. On the last one, you have to see the humor in his unwillingness to describe how short a period is too short to trigger his attention when he is writing that you are less likely to have your life ruined if you sell twice in five years. I think the people who wrote that had at least a sensible chuckle to themselves over it.

Look, I'm not in favor of the new law, but I don't think that you're doing anyone any favors by taking casual examples from definitions/explanations in the comment section and making them seem like they are not only part of the law but are providing the sole criterion for prosecution under the new law.

I haven't done that. The USAG's explanation of the regs isn't a casual example, but his public explanation of the regs he produced in response to an EO directing him to develop a plan to increase background checks. Since he heads up the giant organization tasked with prosecution of the law, his opinion is consequential.

I think it would be a lot more helpful to talk about what the law does say and how it says it. If you are honest about it, you will have to admit that 2 sales in 5 years is not going to put a person in jeopardy of prosecution in the absence of other evidence.

Emphasis added. In other words, two sales in five years can lead to prosecution depending on the sense of the executive branch as to some terms that Garland declines to invest with specificity or the safe harbor of objective criteria. He has metaphorically announced that he understands speeding to be when one drives too fast. That's not a road a lot of people want to take.

I understand that you aren't in favor of the law. Neither of us knows how the expansion of executive authority will manifest in enforcement.

 

[s3779m]

ou claimed that there is something in the law that puts a person in jeopardy for selling a gun to a friend. That's not a complaint that the law is vague, that's a specific claim.

Please quote the portion of the law that indicates that a single sale of a privately owned firearm to a friend makes a person subject to arrest. The law includes the terms 'repetitive' and 'repetitively' which makes it very difficult to interpret it as referring to a single sale.

From the law,

by eliminating the
requirement that a person’s ‘‘principal
objective’’ of purchasing and reselling
firearms must include both ‘‘livelihood
and profit’’ and replacing it with a
requirement that the person must intend
‘‘to predominantly earn a profit.’’ The
BSCA therefore removed the
requirement to consider income for
‘‘livelihood’’ when determining that a
person is ‘‘engaged in the business’’ of
dealing in firearms at wholesale or
retail. The definition of ‘‘to
predominantly earn a profit’’ now
focuses only on whether the intent
underlying the sale or disposition of
firearms is predominantly one of
obtaining pecuniary gain.

That leaves a whole lot of wiggle room. I'm guessing a liberal judge just might interpret different than a conservative judge. Point being, where as maybe you can say with certainty that individual sales are excluded, I am still not seeing that. I see where the law allows the ATF to go after pretty much anyone they want.

 

[44 AMP]

If you are honest about it, you will have to admit that 2 sales in 5 years is not going to put a person in jeopardy of prosecution in the absence of other evidence.

TODAY.

One of the many issues I have with this is that the regulations state (vaguely) what the ATF can do, and do not state what they cannot do.

Two sales in five years isn't enough to bother with, TODAY, but who can say what they will do in the future. If the law, and their regulations to not specifically forbid it, then they can do it, when and if they feel like doing it.

The ATF has a long history of changing their interpretations of their regulation, and sometimes changing their regulations to better match the change in interpretation, sometimes not.

I do not place great faith in the opinions of the ATF director. They do carry some weight, but it is not permanent. It only lasts as long as that guy doesn't change his opinion, or until a different person holds that position, at which time, all bets are off.

It disturbs me that teams of (assumedly) educated people (do they hire anyone without a college degree these days?) can't write a simple regulation that clearly informs "the great unwashed" what the limits are, and aren't without needed 30+ pages of "explanations".

 

[zukiphile]

I do not place great faith in the opinions of the ATF director. They do carry some weight, but it is not permanent. It only lasts as long as that guy doesn't change his opinion, or until a different person holds that position, at which time, all bets are off.

And that isn't what we should mean when we use the word law, because it is something closer to authority.

Law should be something that at least in principle each of us should be able to understand and observe. Don't steal is an old law comprehended by children and illiterates without an explanatory/obfuscatory appendix. At some point a body of law becomes sufficiently complex and detached from ethical intuition that understanding its application becomes a niche interest. As authority becomes more detached from a wider and more common understanding of law, that authority begins to look more arbitrary and unfair.

I saw a thread here recently about a fellow wanting to buy his daughter a firearm in a way that doesn't break a law. A lot of the confusion arises from the tension between a sale to a dangerous criminal (an ethically intuitive prohibition) and a sale that runs afoul of the language of the 4473. The answer isn't complex, but the tension between doing something arguably "wrong", buying a gun for a felon, and running afoul of federal rules disorients people. The resulting submission by confusion isn't an ideal condition.

There is a second way a nebulous expansion of power in the regs isn't benign. Let's suppose a few years pass and the DOJ stays very conservative in prosecuting unlicensed dealers. At some point, someone is going to use a gun he bought from an unlicensed individual in an unfortunate way and the hysteria will rise to close the "loophole" left in the code and reg. We've already implicitly accepted federal authority over unlicensed individuals in intrastate transfers, so eliminating them entirely is fair "if it only saves one life", right? Then what is the [principled objection to a UBC? It's an incremental gesture in the direction of a future UBC, one bite of the elephant.

 

[dogtown tom]

The Verminator

Bill of sale? Yes, protect yourself.

A bill of sale may offer some comfort to a buyer, showing that he has purchased and paid $$$ for an item.........but no way in heck does it "protect" the buyer from buying a stolen gun or in any way protect the seller from anything whatsoever.

In many states you are now required to get ID from buyer and keep that information.

Many? How many? Other than UBC states name them.

If that gun turns up at the scene of a crime you want to be able to show it was legally sold to a qualified buyer.

Oh brother.
If you aren't running an FBI NICS check, how the heck do you know the buyer is not a prohibited person?
How the heck do you know the buyer wont hand that gun to his buddy the criminal before dark?

 

[dogtown tom]

s3779m
Here's the problem I have with the new ruling, first off, we have laws concerning everything you mentioned above. If the law needed different wording to be clear, that is congress's job.

Not true. Read the Administrative Procedures Act.

In the ATF's rule, there was no attempt for clarification, no attempt for everyone to understand.

Nonsense.
ATF even posted a list of Q&A's regarding each portion of this rule.

Two, even with all the voices proclaiming what the ATF meant, I have yet to see from the ATF what THEY DID NOT MEAN.

Maybe because you didn't read it?
It's pretty clear to me.

 

[dogtown tom]

mehavey And no one -- at least no ordinary/common man -- has a clue what it really means in terms of ordinary practices supposedly within the law ... before.

I do. And I'm not an attorney.

Than simply answer the questions posed in Post #110 ... if it's really as simple as that.

The question posed in #110 are easily answered by reading https://www.atf.gov/firearms/final-rule-definition-engaged-business-dealer-firearms
Simple as that.



All of those questions have posed by others, on other guns forums, to no consistent answer.

 

[dogtown tom]

s3779m
I have seen several posts on this forum which tell me that this law and the ATF are not going after me for selling a gun to a friend, or a stranger. But I have yet to see where the ATF has said that. But I would suggest to anyone, if a friend wants to buy a gun from you that you no longer want, don't sell it to him in the parking lot of a gun show.

Read my post #81
You'll find this nugget:

Q – Does the final rule require every private sale of a firearm be processed through a licensed dealer?
A – No. Individuals may continue to make intrastate private sales without a license provided they do not rise to the level of being “engaged in the business,” and the transactions are otherwise compliant with law.

and....

Conduct not presumed to be engaged in the business

Q – Does the final rule provide examples of when a person would not be presumed to be engaged in the business requiring a license as a dealer?
A – Yes. Under this final rule, a person would not be presumed to be “engaged in the business” requiring a license as a dealer when reliable evidence shows the person transfers firearms only:
o As bona fide gifts;
o Occasionally to obtain more valuable, desirable, or useful firearms for their personal collection;
o Occasionally to a licensee or a to a family member for lawful purposes;
o To liquidate (without restocking) all or part of their personal collection; or
o To liquidate firearms
o That are inherited; or
o Pursuant to a court order; or
o To assist in liquidating firearms as an auctioneer when providing auction services on commission at an estate-type auction.
The final rule provides objectively reasonable standards for when a person is presumed to be “engaged in the business” to strike an appropriate balance that captures persons who should be licensed, without limiting or regulating activity truly for the purposes of a hobby or enhancing a personal collection.

Q – Does the final rule place additional restrictions on law-abiding citizens who wish to transfer firearms to family or friends, or to sell all or part of a personal collection of firearms?
A – This rule does not place additional restrictions on law-abiding citizens who occasionally acquire or sell personal firearms to enhance a personal collection or for a hobby. This rule does not prevent law abiding persons from purchasing or possessing firearms, from selling inherited firearms, or from using their personal firearms for lawful purposes such as self-defense, reenactments, or hunting. The rule includes a non-exhaustive list of conduct that does not constitute being engaged in the business and that may also be used to rebut the presumptions, as well as other examples of conduct that does not demonstrate a predominant intent to profit.

 

[dogtown tom]

JohnKSa
Ok, folks. I'm going to, once again, strongly suggest that people who find this topic of interest, should read the actual rule for themselves. It is not difficult to understand, and there are pages and pages of explanatory text for those who do need a bit of help.

Sadly, its easier not read.

 

[s3779m]

Not true. Read the Administrative Procedures Act.

Writing laws is up to congress not an agency. SCOTUS has stated so.


[/QUOTE]
Nonsense.
ATF even posted a list of Q&A's regarding each portion of this rule.[/QUOTE]

Proves my point, had the rule been written clearly the upteen pages telling us what they meant would have been unnecessary


[/QUOTE]
Maybe because you didn't read it?
It's pretty clear to me.[/QUOTE]

Wrong. I did read it. What I saw gave one hell of a lot of leeway to officers as to what they can arrest for. That leeway is so wide open it can change daily AND STILL BE WITHIN THE RULE. I personally do not want people with the power to arrest to have that much leeway, especially when it is clear to me the only part that is not vague about the rule is the words "shall not be infringed" does not mean anything to the agency that wrote the rule.

 

[Stuohn101]

What is "occasionally"