New Background Check Rule

[JohnKSa]

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.

The evidence you're talking about that would make a single sale into dealing firearms without a license is EXACTLY the same as it would have been before this rule was enacted.

The rule is clear that a single sale in the absence of other evidence is not going to be an issue. Furthermore the rule and the explanation use "repetitive/repetitively" hundreds of times. There is no benefit to trying to scare people into thinking that this rule puts them at risk if they sell a gun "they no longer want" to a friend.

Presumably you have read the rule, and with your background you know what I'm saying is true.

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.

That's a pretty obvious mischaracterization. You have seized on a single casual example provided in the course of a rather long explanation and turned it into something it's not. Anyone who takes the time to read the rule and commentary, or even who looks through it and reads significant portions of it will see that what I'm saying is true. Again, there's no benefit to trying to freak people out by making this rule change into something it isn't.

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.

There is no need for any "in other words".

What I posted is absolutely true as it stands, without any need for restatement or additional explanation. "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."

The "other evidence" is critical. Multiple sales, even frequent multiple sales isn't enough to make the case.

What I would be interested in is an explanation of the new presumptions. The law says that they are not to be used in criminal prosecutions--so what is their impact?

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.

You stated that there is now something in the law that makes a person subject to arrest for selling a gun they no longer want to a friend. The fact is that there isn't anything in the new law that says that. You need to read the law. Then if you have questions about specific parts of the law and post them here, someone can answer them or point you to the commentary/explanation section that provides insight.

Again, I'm not in favor of the law, but there's no point in trying to make it into something it's not. It's bad enough as it is without making stuff up.

TODAY.

YES, today. Tomorrow, monkeys may fly. There's all kinds of crazy stuff that MAY happen, even all kinds of crazy stuff that is likely to happen. Look, there's plenty of confusion here without trying to speculate about what's going to happen down the road.

... the tension between doing something arguably "wrong", buying a gun for a felon, and running afoul of federal rules disorients people.

The sad reality is that we are awash in laws against doing things that are "wrong" only because of the laws that exist to make them "wrong". From a practical perspective, that's moot. In practice, if you break a law, it doesn't matter if it's against doing something that's wrong only because of the law vs. something that's generally considered to be "immoral/wrong/evil". The prosecution will be based on the evidence and the law.

What is "occasionally"

There's a fairly extensive discussion of this in the rule and the commentary included in it. Seriously, if this topic interests you, read the rule.

 

[zukiphile]

TODAY

YES, today. Tomorrow, monkeys may fly. There's all kinds of crazy stuff that MAY happen, even all kinds of crazy stuff that is likely to happen. Look, there's plenty of confusion here without trying to speculate about what's going to happen down the road.

I wouldn’t complain about people exercising foresight. Ordinary foresight can include assessing whether a power handed government will go unused. Whereas the possibility of monkeys flying is remote, history indicates that a power doesn't go unused indefinitely, and is too often used even when it isn't granted.

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.

The evidence you're talking about that would make a single sale into dealing firearms without a license is EXACTLY the same as it would have been before this rule was enacted.

The rule is clear that a single sale in the absence of other evidence is not going to be an issue.

How do you think a person sells a gun where there is no evidence other than a sale? It’s the other elements that people are discussing.

If this is what your exhortation to read the rule indicates, your post illustrates why just reading the government’s explanation doesn’t suffice. Since there is a legislative change, an EO, and a regulatory change, addressing questions with

read the rule

and

It's really as simple as that.

…is not responsive.

You are aware that

It's about intent, not about the actual outcome.

Indeed. You are aware that one can be a dealer under the rule without having sold a single firearm.

We can glean that the evidence required to find one engaged in the business is different after the BSCA, EO and regs because the elements for being engaged in the business are different.

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.

There is no need for any "in other words".

What I posted is absolutely true as it stands, without any need for restatement or additional explanation. "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."

The "other evidence" is critical. Multiple sales, even frequent multiple sales isn't enough to make the case.

That evidence no longer includes a principle objective of livelihood, but has been interpreted by the USAG to include unquantified judgements about frequency, duration and number.

You understand that the other evidence is critical, but in your assurance above that he won't be put in jeopardy you dispose of the entire issue presented with "in the absence of other evidence". Since no one has ever transferred an arm in the absence of evidence other than the occurrence of a sale, telling people that they aren’t in jeopardy when Merrick Garland won’t even do that is not circumspect.

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.

That's a pretty obvious mischaracterization. You have seized on a single casual example provided in the course of a rather long explanation and turned it into something it's not. Anyone who takes the time to read the rule and commentary, or even who looks through it and reads significant portions of it will see that what I'm saying is true. Again, there's no benefit to trying to freak people out by making this rule change into something it isn't.

It might be wiser not to refer to a comment on the explanation of the USAG as “seiz[ing] on a single casual example” while lodging a complaint about mischaracterization.

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.

So, a person can be understood to be engaged in the business for having sold two guns in five years, but it’s less likely than if they do it an unspecified number of times over a period of unspecified duration. That’s precisely the vague quality s3779m and other commenters have identified, and Garland repeats it in his refutation. Hilarious. It’s funny enough that it may be intentional.

Finally, your expressed sense that your positions are so obviously true that anyone who is honest about this will read the rule and share your view is something you might want to keep to yourself. The idea that departing from your view is trying to scare people is not a comment on the Act, the EO, the reg or future enforcement.

 

[The Verminator]

You are aware that one can be a dealer under the rule without having sold a single firearm.

Yes.

This illustrates the bizarre nature of this debate.

Let's recognize that all gun owners would rather make money when they sell a gun.........that means everyone has an INTENT to make a profit.

Your take on this would make us all dealers even if we haven't sold a gun.

 

[stagpanther]

This discussion is going to go around in circles forever. There are essentially two "sides" here:

1. Personal sales do not require ffl licensing under any circumstances; and
2. Personal sales that are substantively, not necessarily quantitatively, the same as what licensed ffl dealers do are required to have ffl licenses.

There's actually a third implicit position that no sales of any kind should ever require any kind of licensing--much as I would like to have my own personal 155 mm howitzer that's probably never going to happen.

I fear my beer and popcorn supply is going to run out before this one is satisfactorily resolved.

 

[JohnKSa]

...that means everyone has an INTENT to make a profit.

That is not what the new rule says. That is, it the word "intent" in the law is qualified with a modifier and the predominant intent to make a profit is only part of what is required to make the case.

1. Personal sales do not require ffl licensing under any circumstances; and
2. Personal sales that are substantively, not necessarily quantitatively, the same as what licensed ffl dealers do are required to have ffl licenses.

Personal sales can certainly require ffl licensing if the buying/reselling is repetitive in nature and is being done predominantly for profit.

If you want a very succinct summation, here it is: If you are dealing firearms (i.e. buying and selling them but not for personal use/collecting) then you need a license.

I think the rule could have been a lot clearer--which is a sad thing to say given how much time they spent writing it and explaining it--but it is not the hopelessly vague mess that some people are claiming it is. I believe that a person of ordinary comprehension can read the rule and gain sufficient insight to understand it and to avoid being prosecuted under its provisions.

There's actually a third implicit position that no sales of any kind should ever require any kind of licensing...

My personal opinion is that the entire FFL scheme is unconstitutional. Unfortunately I am not SCOTUS so my personal opinion carries no weight when it comes to constitutionality.

I wouldn’t complain about people exercising foresight. Ordinary foresight can include assessing whether a power handed government will go unused. Whereas the possibility of monkeys flying is remote, history indicates that a power doesn't go unused indefinitely, and is too often used even when it isn't granted.

It's always good to look ahead, but there seems to be enough confusion for the present to warrant focusing on that for the time being. I don't think for a moment this will be the end of things.

As far as telling people to read the rule goes, if they don't, it's going to be much more difficult to explain to them. And when the questions being asked make it clear that the rule hasn't been read, it's good advice for a starting point for people who are actually interested in the topic. What I'm seeing is that there are people who aren't really interested enough to find out what the rule says--they just want to complain about it. I'm all for complaining about it but that's sort of pointless until one knows what they are complaining about.

You are aware that one can be a dealer under the rule without having sold a single firearm.

See, this is unhelpful. That is not what the statement means at all. What it means is that it takes repetitive sales AND other evidence, it doesn't mean that it takes repetitive sales OR other evidence. If you believe otherwise, outline, using direct quotes from the new rule, a method for prosecuting someone who has never sold a firearm.

That evidence no longer includes a principle objective of livelihood, but has been interpreted by the USAG to include unquantified judgements about frequency, duration and number.

Again, not helpful.

Yes, it doesn't include "principle objective of livelihood", but it still includes the motive of doing it "predominantly for profit" as well as the other evidence you mention. Making it seem that the judgements about frequency/duration/number are the sole criteria is misleading.

So, a person can be understood to be engaged in the business for having sold two guns in five years, but it’s less likely than if they do it an unspecified number of times over a period of unspecified duration.

No, that's not what it says at all.

1. The 2 guns in 5 years statement was part of a comparison in an explanation--it gives two hypothetical cases and compares them to see which of the two cases makes a person more/less likely to be found to have satisfied the repetitive sales portion of the law. It was not a statement that selling 2 guns in 5 years was going make it clear that a person was "understood to be engaged in the business", nor even that "selling several times over a short period" would. The point was the comparison. In either of the two situations stated for the sake of comparison (the more likely one or the less likely one) it would require additional evidence to prosecute.

2. The other hypothetical case was "several times over a short period". If someone really doesn't understand that "several" is more than 2 and "a short period" is less than 5 years, then they probably need to forget about understanding this rule.

For the third time, I'm going to say it even though I understand at this point that you will not admit that it is a true statement. Fortunately your admission has nothing to do with its accuracy. "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."

What would be helpful is an explanation of the new presumptions and their impact from a legal perspective. The law says that they are not to be used in criminal prosecutions--so how would they be used and what do people need to know about them?

 

[zukiphile]

For the third time, I'm going to say it even though I understand at this point that you will not admit that it is a true statement. Fortunately your admission has nothing to do with its accuracy. "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."

John, you don't appear to have understood the prior response. I didn't assert that your statement is untrue.

You understand that the other evidence is critical, but in your assurance above that he won't be put in jeopardy you dispose of the entire issue presented with "in the absence of other evidence". Since no one has ever transferred an arm in the absence of evidence other than the occurrence of a sale, telling people that they aren’t in jeopardy when Merrick Garland won’t even do that is not circumspect.

That's not an assertion that two sales in five years is " going to put a person in jeopardy of prosecution in the absence of other evidence". It's an explanation that the other evidence is critical (your term) so your assurance omits the critical part of any fact pattern.

You are aware that one can be a dealer under the rule without having sold a single firearm.

See, this is unhelpful. That is not what the statement means at all. What it means is that it takes repetitive sales AND other evidence, it doesn't mean that it takes repetitive sales OR other evidence. If you believe otherwise, outline, using direct quotes from the new rule, a method for prosecuting someone who has never sold a firearm.

That is incorrect. This appears to be very helpful. Under the rule,

However, there is no minimum threshold number of
firearms purchased or sold that triggers the licensing requirement.

and

(c) Presumptions that a person is engaged in the business as a dealer. In civil and administrative proceedings, 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, when it is shown that the person—
(1) Resells or offers for resale firearms, and also represents to potential buyers or otherwise demonstrates a willingness and ability to purchase and resell additional firearms (i.e., to be a source of additional firearms for resale);

Emphasis added. https://www.atf.gov/rules-and-regul...ion-engaged-business-dealer-firearms/download p 458.

Garland seems to understands what his regs mean.

Similarly, there is no minimum number of transactions that
determines whether a person is “engaged in the business” of dealing in firearms. Even a single firearm transaction, or offer to engage in a transaction, when combined with other evidence, may be sufficient to require a license.

Id. p 31.

One can trigger a presumption that he is a dealer without having sold anything. You can tell this because neither the rule nor Garland's explanation require a sale.

You will now understand that

That is not what the statement means at all. What it means is that it takes repetitive sales AND other evidence, it doesn't mean that it takes repetitive sales OR other evidence.

...is an incorrect reading according to the USAG who presumably read the rule before signing it.



I don't fault you for recommending that people read not only the rule but Garland's explanation. They should read the EO as well. That should not be all interested people do.

 

[The Verminator]

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.

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

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?

Well, of course the seller has no way of knowing what a buyer may do........that's why you get his ID--so if HE breaks the law or sells to a criminal you can lay the blame on him.

I don't know what UBC means, but my state requires the seller to obtain ID from buyer on pistols and AR15 type rifles so it's obviously something that everyone should do just in case of trouble.

Oh.......and while you can't run a background check officially--you can make a good faith effort by getting a driver's license and firm ID. Just asking for it will scare off most buyers who have criminal intent. Better yet, sell to someone you know well.

I say this as guidance to others..........I myself would never buy or sell a gun except through a dealer that runs the official background checks.

 

[dogtown tom]

The Verminator
Well, of course the seller has no way of knowing what a buyer may do........that's why you get his ID--so if HE breaks the law or sells to a criminal you can lay the blame on him.

Having the buyers ID is required to lay blame?
You could have the buyers drivers license, his passport, birth certificate and nearly anu other form of ID and guess what?........you get enough gun traces back to you and you will get on ATF's radar as a source of guns. "But, but, but ....I has their drivers license!" will mean squat.


Saying "I sold it to a guy at a gun show/WalMart parking lot/behind a dumpster who showed me he had an instate drivers license....I have no legal requirement to write that down.....any more questions?".... is all that is needed in Free America.

Any buyer that allows a seller to write down the information on his drivers license WHEN NOT LEGALLY REQUIRED is a nit wit. You are telling the seller where you live and where you have guns. In this day of identity theft that's stupid, stupid, stupid.

I don't know what UBC means,

You should. Your state has had it since last August.

but my state requires the seller to obtain ID from buyer on pistols and AR15 type rifles so it's obviously something that everyone should do just in case of trouble.

If state law requires it I'm sorry for you.

Oh.......and while you can't run a background check officially--you can make a good faith effort by getting a driver's license and firm ID. Just asking for it will scare off most buyers who have criminal intent. Better yet, sell to someone you know well.

Wait.... what?
How on earth can you "make a good faith effort" officially or unofficially without actually running a background check?
If asking for a DL scares off criminals you need to spend a few minutes looking at how many NICS checks are denied every day because the buyer, who presented his DL, was denied.
Fake ID's are a thing.

I say this as guidance to others..........I myself would never buy or sell a gun except through a dealer that runs the official background checks.

Then why the heck are you demanding the buyers ID when you sell a gun?

 

[The Verminator]

Then why the heck are you demanding the buyers ID when you sell a gun?

I don't. I'm not so stupid as to sell a gun that way.

I have made that clear.

Why the heck do you feel a need to make stuff up?

Unsure of your claims?

 

[The Verminator]

Having the buyers ID is required to lay blame?
You could have the buyers drivers license, his passport, birth certificate and nearly anu other form of ID and guess what?........you get enough gun traces back to you and you will get on ATF's radar as a source of guns. "But, but, but ....I has their drivers license!" will mean squat.

Your opinion is noted, but it's not logical.

Maybe you'd say, "Gosh, I just sold it to some guy."

 

[The Verminator]

How on earth can you "make a good faith effort" officially or unofficially without actually running a background check?
If asking for a DL scares off criminals you need to spend a few minutes looking at how many NICS checks are denied every day because the buyer, who presented his DL, was denied.
Fake ID's are a thing.

A good faith effort is just that.........a good faith effort.

If a criminal gives you a fake ID........Not your problem.

If it DOES cause you a problem, maybe you should have taken my advice.

I have repeatedly said that selling without going through a dealer is not wise.

Maybe you haven't seen that.

 

[dogtown tom]

The Verminator

Quote:
Originally Posted by dogtown tom View Post
Then why the heck are you demanding the buyers ID when you sell a gun?

I don't. I'm not so stupid as to sell a gun that way.

I have made that clear.

Why the heck do you feel a need to make stuff up?

Uhhhhh.......because you wrote this:

Well, of course the seller has no way of knowing what a buyer may do........that's why you get his ID--so if HE breaks the law or sells to a criminal you can lay the blame on him.

Sound familiar?

It's pretty hypocritical to advise people to get a copy of the buyers drivers license when you say "I don't. I'm not so stupid as to sell a gun that way."

 

[The Verminator]

Uhhhhh.......because you wrote this:


Sound familiar?

It's pretty hypocritical to advise people to get a copy of the buyers drivers license when you say "I don't. I'm not so stupid as to sell a gun that way."

I didn't say that I do that.

I have consistently advised against people failing to sell or buy through a dealer and consistently said I ALWAYS sell or buy through a dealer.

Try to read better.

 

[JohnKSa]

I'm not going to get side-tracked. So let's go back to your original claims to keep things clear.

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.

The comment about selling twice in five years is not intended to indicate that "life altering prosecution" is possible because someone simply sells two firearms in five years.

It is part of a comparison in an explanation--it gives two hypothetical cases and compares them to see which of the two cases makes a person more/less likely to be found to have satisfied the repetitive sales portion of the law. It was not a statement that selling 2 guns in 5 years was going make it clear that a person was "understood to be engaged in the business", nor even that "selling several times over a short period" would. The point was the comparison. In either of the two situations stated for the sake of comparison (the more likely one or the less likely one) it would require additional evidence to prosecute.

It is not helpful to scare people by taking statements from the explanation out of context and trying to make people believe (for example) that this new rule means that selling 2 guns in 5 years might put them in jeopardy. There's a lot more to it than that and leaving it out is misleading and alarmist.

You are aware that one can be a dealer under the rule without having sold a single firearm.

No, I am not aware of that and, in fact, that is not the case. Garland's quote specifically notes that " Even a single firearm transaction, or offer to engage in a transaction, when combined with other evidence, may be sufficient to require a license. "

If you are trying to say that if you clearly represent yourself as being in the business of selling firearms and don't have a license that they can prosecute you before you actually start selling, that is true--but that is not anything new to this rule. Therefore, to the extent that your claim is correct, it is not relevant to changes "the new rule" because it's the way things have always been--that's not an effect of the new rule. Trying to make it seem that it's a new and pertinent point of jeopardy is misleading and alarmist. Not helpful.

You know what would be really helpful? A good explanation of the new presumptions and their impact from a legal perspective. The law says that they are not to be used in criminal prosecutions--so how would they be used and what do people need to know about them?

 

[44 AMP]

Saying "I sold it to a guy at a gun show/WalMart parking lot/behind a dumpster who showed me he had an instate drivers license....I have no legal requirement to write that down.....any more questions?".... is all that is needed in Free America.

That's the way it used to be, and still is in states that do not have state laws requiring transfers to go through an FFL.

You needed to see some kind of ID that established the buyer was a resident of your state to ensure you weren't possibly breaking Fed law by selling to an out of state resident. After that it was up to you to decide if the buyer seemed honest or shady. THAT WAS THE GOOD FAITH EFFORT.

Unfortunately, in many places today the government accepting the judgement of the citizen as a good faith effort is now prohibited by law.

 

[Nathan]

I do wish I knew what was eventually going to be a crime in this new interpretation...
From other people/other venues then....

How many guns sold over a period of time would too many ?
- (I currently can't tell)

How short a period of time is too short?
- (I currently can't tell)

How many guns in an inherited "collection" sold would too many?
- (I currently can't tell)

In that possibly-LEgal sale of a 'collection' of guns, what is/would an ILlegal sale of a "self-defense" gun look like?
- (I currently can't tell)

What is a "self-defense" gun ?
- (I currently can't tell)

How often can I sell guns and not run afoul of this new interpretation?
- (I currently can't tell)

How long would I have to wait before gaining possession of a gun and selling it ?
- (I currently can't tell)

In selling a gun, do I base "profit" on price then vs price now ... or inflated/constant year dollars?
- (I currently can't tell)

In bartering a gun for "other than dollars"... what is actually going to be considered alternative "good & valuable consideration" ?
- (I currently can't tell)

But probably most important (since some say the ATF wouldn't show up at the doorstep of the little people)... what multi-facted mathematical/polynomial equation will ATF be using to combine all those factors above into tripping a Master ALERT Light ?
- (That we will probably never know)

I agree with your concern although, a few seem irrelevant and 1-2 are answered in general case law.

Still, if I sell a gun at a gun show or by posting an online ad, am I a dealer? This ought to be a simple question.

It ought to be clear without case law what is my box of legal. Laws are put in place to make limits. The limits must be written into the law. Rules are in place to tell the enforcers when to make an arrest.

If the law is you cannot be a dealer, and the rule is selling 1 gun makes you a dealer, you may get arrested, but you have a defense because you can use the meaning of the word dealer in case law to show you are not one. This is crazy how they refuse to make a law….probably don’t need any more. So, someone makes a rule saying we are going to round up 1000’s of people and make the courts tell us if they are dealers. So then how many of these people have the funds to be a test case. How many are a bad test case because of outside factors like they are drug dealers, gang bangers, wife beaters, etc. their gun sales may be legal, but who will side with them?

 

[JohnKSa]

... and the rule is selling 1 gun makes you a dealer, you may get arrested...

Selling 1 gun doesn't make you subject to arrest, not even at a gun show. Read the rule.

 

[zukiphile]

If the law is you cannot be a dealer, and the rule is selling 1 gun makes you a dealer,..

John is correct that the isolated act of selling one gun doesn't make you a dealer. Your seven word rule gives Garland undue credit for clarity and brevity.

Your concern over prosecutorial selection initially of marginal test cases to validate iffy code is solid. It's just good strategy.

 

[zukiphile]

Maybe you'd say, "Gosh, I just sold it to some guy."

This is slightly wide of the topic, but a prior question might involve why you are talking with anyone in federal law enforcement in the first place, and what you think you are getting out of it.

 

[dogtown tom]

JohnKSa

Originally Posted by zukiphile
You are aware that one can be a dealer under the rule without having sold a single firearm.

No, I am not aware of that and, in fact, that is not the case.

It sure as heck is. It's literally in the very first FAQ I posted pages ago.

Q – What does it mean to be “engaged in the business" as a wholesale or retail dealer?
A – A person is “engaged in the business” when the person devotes time, attention, and labor to dealing in firearms as a regular course of trade or business to predominantly earn a 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 the person’s personal collection of firearms. The term shall not include an auctioneer who provides only auction services on commission to assist in liquidating firearms at an estate-type auction, provided that the auctioneer does not purchase the firearms, or take possession of the firearms for sale on consignment.

The definition focuses on whether the intent underlying the sale or disposition of firearms is predominantly one of obtaining pecuniary gain. There is no statutory requirement that firearms actually be sold; indeed, a dealer may routinely (i.e., “regularly”) devote time and resources working toward that goal as a course of trade or business, but never find a buyer or consummate any sales due to insufficient demand or poor sales practices. Thus, the way that Congress drafted and amended the statute, and the way that courts have repeatedly interpreted it, no actual sales are required if the intent element is met, and the person’s conduct demonstrates their devotion of time, attention, and labor to dealing in firearms as a regular course of trade or business.

Under the BSCA, a person’s intended use for the income they receive from the sale or disposition of firearms is not relevant to the question of whether they intended to predominantly earn pecuniary gain. If a person must sell their previously acquired firearms to generate income for subsistence, such as to pay medical or tuition bills, they are still subject to the same considerations as persons who intend to sell their firearms to go on a vacation, increase their savings, or buy a sports car. If persons repetitively resell firearms and actually earn pecuniary (or monetary) gain, whether or not it was for support or subsistence, that gain is evidence demonstrating the intent element of being engaged in the business. However, a single or an isolated sale of firearms that generates pecuniary gain would not alone be sufficient to qualify as being engaged in the business without additional conduct indicative of firearms dealing. The issue is whether the person who exchanged the firearms for money, goods, or services was devoting time, attention, and labor to dealing in firearms as a regular course of trade or business and had the predominant intent to earn a profit through repetitive firearms purchases and resales.

For example, a person who bought a firearm 40 years ago and now sells it for a substantial profit to augment income during retirement is not engaged in the business based on this single firearms transfer because their intent was not to earn that pecuniary gain through repetitive purchases and resales of firearms and they are likely not dealing in firearms as a regular course of trade or business. Put another way, a bona fide collector, whose motive is not predominantly to profit, may make incidental profit in the course of enhancing a personal collection, which would not be engaged in the business.

Garland's quote specifically notes that " Even a single firearm transaction, or offer to engage in a transaction, when combined with other evidence, may be sufficient to require a license. "

Which doesn't mean a single transaction is required.