ATF has proposed a "rule change" to "clarify" what Congress meant by "engaged in the business" of selling firearms. If implemented and enforced as written, persons who sell a single gun (or even demonstrate a "willingness" to sell a gun) in a private transaction could be presumed to be "in the business" of selling firearms and be required to have an FFL. This is unadulterated horseshit, pure and simple.
There are numerous serious problems with the proposed rule.
First, ATF is unconstitutionally usurping Congress's sole authority to legislate;
Second, statutory terms that are clear and unambiguous based on their common, everyday usage (such as "engaged in the business") do not require judicial or bureaucratic "clarification";
Third, the proposed rule creates more ambiguities than it resolves;
Fourth, the proposed rule change omits "protection of self, family and property" from the list of acceptable purposes that define a "personal firearms collection," thereby violating the Second Amendment.
IMPORTANT - the comments period for voicing support or opposition for this change ends TOMORROW, Thursday, December 7th, at midnight. You can read the proposed rule change and submit comments at the Federal Register:
https://www.federalregister.gov/documen ... n-firearms
The following are excerpts from the published document:
What does ATF mean by "other evidence"?Thus, even a single firearm transaction, or offer to engage in a transaction, when combined with other evidence, may be sufficient to require a license.
https://www.federalregister.gov/d/2023-19177/p-105
[Emphasis added].Rather than establishing a minimum threshold number of firearms purchased or sold, this rule proposes to clarify that, absent reliable evidence to the contrary, a person will 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; [63]
(2) spends more money or its equivalent on purchases of firearms for the purpose of resale than the person's reported taxable gross inome during the applicable period of time; [64]
(3) repetitively purchases for the purpose of resale, or sells or offers for sale firearms— [that are illegal under other provisions of law]
(4) repetitively sells or offers for sale firearms—
(A) within 30 days after they were purchased; [70]
(B) that are new, or like new in their original packaging; [71]
or
(C) that are of the same or similar kind (i.e., make/manufacturer, model, caliber/gauge, and action) and type (i.e., the classification of a firearm as a rifle, shotgun, revolver, pistol, frame, receiver, machinegun, silencer, destructive device, or other firearm);
As rationale for presumptions (B) and (C) above, ATF makes the ludicrous and unsupported declaration that: "persons who repetitively sell firearms in new condition or in like-new condition in their original packaging, or firearms of the same kind and type, are not likely to be selling such firearms from a personal collection." Apparently, they have never interviewed collectors who told them that firearms in like new condition and in their original packaging are more desirable to other collectors, and that some collectors focus only on one kind or type of firearm, such as Colt Single Action revolvers, German Lugers, or Winchester lever action rifles. All of these individuals would be subject to this new rule if they sold even one example from their collection to another collector.
https://www.federalregister.gov/d/2023-19177/p-131
{Emphasis added].Any one or a combination of the circumstances above gives rise to a presumption in civil and administrative proceedings that the person is engaged in the business of dealing in firearms and must be licensed under the GCA. The activities set forth in these rebuttable presumptions are not exhaustive of the conduct that may show that, or be considered in determining whether, a person is engaged in the business of dealing in firearms. Further, as noted above, while the criteria may be useful to courts in criminal cases when instructing juries regarding permissible inferences, the presumptions outlined above shall not apply to criminal cases.
If the ATF's criteria were applied to other items of personal property, anyone who sells a vehicle to upgrade to a newer or different model is "in the business" of dealing in motor vehicles. If you sell couch at a yard sale because you replaced it with a newer one, you are a furniture dealer.
https://www.federalregister.gov/d/2023-19177/p-154
Separate from the presumptions establishing whether a person is "engaged in the business" are factors giving rise to a presumption that a person has intent to earn a profit. The first one is a direct attack on web-based marketplaces, like Armslist, where private individuals list their personal forearms for sale.
Again, by the ATF's logic, any person who lists a car, a boat, or a toaster for sale on Craigslist thereby has the intent to "predominantly earn a profit."the proposed rule provides that, absent reliable evidence to the contrary, a person is presumed to have the intent to “predominantly earn a profit” when the person: (1) advertises, markets, or otherwise promotes a firearms business (e.g., advertises or posts firearms for sale, including on any website, establishes a website for selling or offering for sale their firearms, makes available business cards, or tags firearms with sales prices), regardless of whether the person incurs expenses or only promotes the business informally; . . .
There are narrow exceptions to the proposed rule. For example:
https://www.federalregister.gov/d/2023-19177/p-153
Trouble is, what you think of as your "collection" may not be one, under ATF's restrictive definition:The statutory definition of “engaged in the business” excludes “a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”
I note that "personal protection and protection of family and property" is NOT included in the proposed definition of "personal collection." This is the very essence of the Second Amendment to the U.S. Constitution - how can THAT not be a legitimate purpose for a personal collection of firearms?Specifically, this rule proposes to define “personal collection,” “personal collection of firearms,” and “personal firearms collection” as “personal firearms that a person accumulates for study, comparison, exhibition, or for a hobby (e.g., noncommercial, recreational activities for personal enjoyment such as hunting, or skeet, target, or competition shooting).” This reflects a common definition of the terms “collection” and “hobby.” [85] The phrase “or for a hobby” was adopted from 18 U.S.C. 921(a)(21)(C), which excludes from the definition of “engaged in the business” firearms acquired “for” a hobby. Also expressly excluded from the definition of “personal collection” is “any firearm purchased for resale or made with the predominant intent to earn a profit” because of their inherently commercial nature. 18 U.S.C. 921(a)(21)(C).
If adopted, this rule change will subject any unlicensed person who sells even one firearm to the penalties of dealing in firearms without an FFL. It is intended to discourage law-abiding citizens from freely exercising their Constitutional rights, to place their personal property at risk of forfeiture, and to further add to ATF's illegal database of firearms ownership in this country.
Please take the time to visit the Federal Register and submit your opposition to this bureaucratic nonsense BEFORE midnight tomorrow. Or, go to the Gun Owners of American website, and submit one of their prepared responses in opposition. https://www.gunowners.org/we-need-you-t ... o-the-atf/
). 