New Background Check Rule

[zukiphile]

I'm not going to get side-tracked.

If you believed that the text of the rule would risk getting you sidetracked, it might have been better not to request it.

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.

Your guess about Garland’s intent will be less instructive that what he writes. Since both scenarios would involve additional evidence, as all fact patterns do, that is not the salient difference between selling twice in five years, or selling “several times over a short period”.

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.

There is no context in which asserting that selling two guns in five years is less likely to have you deemed a dealer means you are in no jeopardy of being deemed a dealer. “Less likely” never indicates impossibility.

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.

Yet, at post #77 you correctly assert

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

What changed your mind?

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. "

Have you missed that this formula uses the disjunctive? That means a single firearm transaction is not required, just as I explained.

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.

I welcome your understanding that,

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.

…is correct, but

What it means is that it takes repetitive sales AND other evidence, it doesn't mean that it takes repetitive sales OR other evidence.

…was not because one can be a dealer in the absence of repetitive sales.

You do not use the regulatory language I quoted at your request. Instead you now wonder if I’m “trying to say” something other than “or otherwise demonstrates a willingness and ability to purchase and resell additional firearms”. I bolded that language so you wouldn’t get sidetracked. That’s not that same as “clearly represent yourself as being in the business of selling firearms”. Your substituted language begs the questions raised by the BSCA and the reg, whether one is engaged in the business.

If your contention is (I am far from certain that it is) that under the prior rule one didn’t need a "principle objective of livelihood and profit” and that one could be a presumed dealer having demonstrated a willingness and ability, yet not have bought or sold any arms, I’d be interested to see the prior regulatory text that leads you to this conclusion.

I read Garland at p.3,

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.

Garland understands the prior rule to have considered income for the "livelihood" and a fact pattern without transactions wouldn't generate income. If Garland has misunderstood the requirements imposed by the prior rule, I'm open to sources that indicate his error.

Note that US v. King features attempted transactions by a straw/fraudulent licensee (the nominal license holder being at least one object of the defendant's fraud) who incorporated for engaging in that business and had purchased 20 or so firearms though that business.

You know what would be really helpful?

I do.

It would be helpful to a discussion of the BSCA, EO and regs not to allow your ideas of other peoples’ unstated intent to serve as your guide to statutory construction.

 

[The Verminator]

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.

The Feds showed up on my doorstep and are asking me questions as they try to establish a chain of ownership on a gun listed to me that was used in a crime.

So I hope I can show that I made a good faith effort to sell it to a legal buyer who willingly shared information and seemed to be a good citizen.

Again.........I would never be in this uncomfortable situation because I would never sell a gun without going through a dealer.

Failing to do this is reckless in today's world.

 

[zukiphile]

The Feds showed up on my doorstep and are asking me questions as they try to establish a chain of ownership on a gun listed to me that was used in a crime.

So I hope I can show that I made a good faith effort to sell it to a legal buyer who willingly shared information and seemed to be a good citizen.

In this hypothetical, you are answering the questions of federal law enforcement who have shown up at your house, and hoping that they don't use any of it to make your life worse? I won't suggest that it never turns out that way.

Quite a few people who practice in or have experience in this area will suggest that a safer response might be "I'm not answering questions. Show a warrant or leave."

I'm not your lawyer and that's an observation, not advice.

Chatter with LE who are interested in speaking with carries risk.

 

[The Verminator]

In this hypothetical, you are answering the questions of federal law enforcement who have shown up at your house, and hoping that they don't use any of it to make your life worse? I won't suggest that it never turns out that way.

Quite a few people who practice in or have experience in this area will suggest that a safer response might be "I'm not answering questions. Show a warrant or leave."

I'm not your lawyer and that's an observation, not advice.

Chatter with LE who are interested in speaking with carries risk.

Now there's some good advice from a lawyer and I didn't even have to pay for it!!!

In my case, though.........they wouldn't even show up at my door since I will only sell (or buy) through a dealer.

Wisdom eliminates potential problems.

(That is also good advice that nobody had to pay for.)

 

[Aguila Blanca]

In my case, though.........they wouldn't even show up at my door since I will only sell (or buy) through a dealer.

That doesn't mean the BATFE won't knock on your door.

 

[The Verminator]

That doesn't mean the BATFE won't knock on your door.

Why would they knock on my door?

 

[44 AMP]

Why would they knock on my door?

They would knock if they are being polite.

If your name comes up in their investigation, they might want to talk to you.

Selling a gun to a dealer, or through a dealer does not eliminate that possibility.

 

[The Verminator]

They would knock if they are being polite.

If your name comes up in their investigation, they might want to talk to you.

Selling a gun to a dealer, or through a dealer does not eliminate that possibility.

How would my name come up?

 

[dogtown tom]

The Verminator

Quote:
Originally Posted by Aguila Blanca View Post
That doesn't mean the BATFE won't knock on your door.

Why would they knock on my door?

Never heard of a firearms trace?

When LE runs a firearms trace on a firearm recovered at a crime scene, traffic stop, or other reason. they contact the ATF National Tracing Center.

They give the NTC the information on the firearm, NTC in turn contacts the manufacturer or importer to find out who they shipped that firearm to and eventually tracing it to the first nonlicensee transfer. (You)

Like this:
LE requesting agency> ATF NTC> manufacturer or importer> distributor> dealer> buyer. Each of the licensees has 24 hours to respond to that trace request. Once it gets to the licensee that transferred to a nonlicensee (You), the dealer will fax or email that Form 4473 you filled out to the NTC.

NTC isn't going to call you because your phone# isn't part of the 4473 information......they'll come a knocking. Asking if you know who you sold it to. If you don't remember, the trace ends. If you do, they'll ask for that buyers contact info and keep going.

Selling it to a gun dealer or using an dealer to facilitate the transfer doesn't mean they won't contact you.

That trace isn't going to solve a crime. It's theatre. ATF uses firearms trace data to determine which FFL's have short "time to crime" sales. If a dealer has a high number of sales that result in a gun trace he may face extra scrutiny during compliance inspections.

 

[The Verminator]

Never heard of a firearms trace?

When LE runs a firearms trace on a firearm recovered at a crime scene, traffic stop, or other reason. they contact the ATF National Tracing Center.

They give the NTC the information on the firearm, NTC in turn contacts the manufacturer or importer to find out who they shipped that firearm to and eventually tracing it to the first nonlicensee transfer. (You)

Like this:
LE requesting agency> ATF NTC> manufacturer or importer> distributor> dealer> buyer. Each of the licensees has 24 hours to respond to that trace request. Once it gets to the licensee that transferred to a nonlicensee (You), the dealer will fax or email that Form 4473 you filled out to the NTC.

NTC isn't going to call you because your phone# isn't part of the 4473 information......they'll come a knocking. Asking if you know who you sold it to. If you don't remember, the trace ends. If you do, they'll ask for that buyers contact info and keep going.

Selling it to a gun dealer or using an dealer to facilitate the transfer doesn't mean they won't contact you.

That trace isn't going to solve a crime. It's theatre. ATF uses firearms trace data to determine which FFL's have short "time to crime" sales. If a dealer has a high number of sales that result in a gun trace he may face extra scrutiny during compliance inspections.

Seems to me they wouldn't need to talk to me.

Since I sold it through a dealer that info would already be on record.

Thanks anyway.

 

[JohnKSa]

Have you missed that this formula uses the disjunctive? That means a single firearm transaction is not required, just as I explained.

As I said in my previous post, to the extent that this is true, it's always been true--it's not something new with this law. If you offer to deal in firearms or otherwise manage make it clear to that you are dealing in firearms when you don't have a license, that's basically admitting you are violating the law even if you haven't sold any yet. That would have been just as much of a crime under the old law.

The idea that now things are different in that respect due to the new rule just isn't correct.

There is no context in which asserting that selling two guns in five years is less likely to have you deemed a dealer means you are in no jeopardy of being deemed a dealer.

Correct. The problem with your contention is that he doesn't say it's "less likely to have you deemed a dealer", the context is blatantly clear--he flat out states that it's ...'less likely to be understood as “repetitively” selling firearms.'.

The repetitive selling of firearms is only one possibly qualifying aspect of the law as you clearly know based on what you have posted here. Therefore you also know that being deemed to be "repetitively selling firearms" is absolutely not equivalent to "being deemed a dealer".

 

[The Verminator]

It occurs to me that if you haven't sold any guns no agent is going to waste any time on you.

Even if you go to gun shows and babble all day about selling guns.

They have actual sleazebags that are constantly selling to felons who run guns to the thugs in major cities and are a threat to the lives of innocent people..........thus they have no time to waste on wannabes blowing hot air.

This notion of an arrest without a gun sale is so abstruse and irrelevant that it's not even moot.

 

[stagpanther]

This notion of an arrest without a gun sale is so abstruse and irrelevant that it's not even moot.

Don't know what that means--but it sounds good.

 

[dogtown tom]

The Verminator

Seems to me they wouldn't need to talk to me.

Since I sold it through a dealer that info would already be on record.

Again, that record is the Form 4473 that you filled out when you bought the gun. That 4473 doesn't say what you did with it after you left the gun shop.
Thats why they will contact you.

ATF doesn't maintain a database of Form 4473's despite what the conspiracy theorists believe. Thats why they have to run a trace. The only 4463's ATF gets are from dealers who are out of business.

 

[The Verminator]

Again, that record is the Form 4473 that you filled out when you bought the gun. That 4473 doesn't say what you did with it after you left the gun shop.
Thats why they will contact you.

ATF doesn't maintain a database of Form 4473's despite what the conspiracy theorists believe. Thats why they have to run a trace. The only 4463's ATF gets are from dealers who are out of business.

What about the 4473 that the new buyer filled out when I sold the gun through the dealer?

If they had the info from mine they certainly would have the info from his.

 

[44 AMP]

What about the 4473 that the new buyer filled out when I sold the gun through the dealer?

As far as I know, the physical 4473 stays with the dealer. The ATF doesn't even see it, until they inspect the dealer's records, in person at his place of business is the usual way its done.

The information of the phone background check isn't sufficient to tie a specific gun to a specific person, and I believe is not allowed to be kept beyond a certain time frame, by statute law.

If they had the info from mine they certainly would have the info from his.

They don't have your info, or his, until they go look. Looking at the records and quite possibly talking to you or any other former owner/possessor of the gun in question can be part of their investigation.

 

[The Verminator]

As far as I know, the physical 4473 stays with the dealer. The ATF doesn't even see it, until they inspect the dealer's records, in person at his place of business is the usual way its done.
The information of the phone background check isn't sufficient to tie a specific gun to a specific person, and I believe is not allowed to be kept beyond a certain time frame, by statute law.

They don't have your info, or his, until they go look. Looking at the records and quite possibly talking to you or any other former owner/possessor of the gun in question can be part of their investigation.

Wait. So they have a gun used in a crime.

They can't check by serial number to see where it came from?

If they're that primitive it's no wonder they don't catch people.

 

[44 AMP]

Wait. So they have a gun used in a crime.

They can't check by serial number to see where it came from?

Sure they can. Its called a trace, and it starts with the manufacturer and can go through everyone who had it, until the trail breaks or all the way down to its recovery from crime scene or a criminal.

If you ever owned it, you are part of that trail. There may not be anything more than the official paper trail involved, or they may be more, at the discretion of the investigating agency.

None of this has any direct bearing on the proposed ATF rule change, that I see.

 

[stagpanther]

IIRC, Congress passed a law prohibiting Federal agencies from keeping records on serial # registrations. That's why the traces/interviews.

 

[zukiphile]

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. "

Have you missed that this formula uses the disjunctive? That means a single firearm transaction is not required, just as I explained.

If you offer to deal in firearms or otherwise manage make it clear to that you are dealing in firearms when you don't have a license, that's basically admitting you are violating the law even if you haven't sold any yet. That would have been just as much of a crime under the old law.

The idea that now things are different in that respect due to the new rule just isn't correct.

Note that you have again posited different language to interpret. Your language assumes that one is a dealer whereas the language used by Garland describes something different.

It's fine to read the document, but then it's important to understand the language the document actually uses.

There is no context in which asserting that selling two guns in five years is less likely to have you deemed a dealer means you are in no jeopardy of being deemed a dealer.

Correct. The problem with your contention is that he doesn't say it's "less likely to have you deemed a dealer", the context is blatantly clear--he flat out states that it's ...'less likely to be understood as “repetitively” selling firearms.'.

The repetitive selling of firearms is only one possibly qualifying aspect of the law as you clearly know based on what you have posted here. Therefore you also know that being deemed to be "repetitively selling firearms" is absolutely not equivalent to "being deemed a dealer".

That would be crucial if anyone had argued that mere repetitive sale would result in prosecution or thought that Garland was just musing on what repetitive means in a vacuum and not in a document about a licensing requirement. Neither is correct.

Where

...repetitive selling of firearms is only one possibly qualifying aspect of the law...

...greater repetition is more likely to satisfy that qualifying aspect of being found a dealer than less repetition.

Therefore, where the other facts are the same, a failure to satisfy the repetitive selling test will mean that one is not a dealer under that leg of the test, and make it

...less likely to have you deemed a dealer

Since I haven't suggested that

being deemed to be "repetitively selling firearms" is [...] equivalent to "being deemed a dealer".

That isn't a problem with the explanation I provided.