Florida Shooters Network

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.

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);

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.

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; . . .

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.”

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).

I oppose implementation of the proposed rule change. Congress has clearly and adequately defined “engaged in the business” in 18 U.S.C. § 921. A basic rule of statutory interpretation is that terms that are clear and unambiguous do not require judicial or bureaucratic "clarification."

18 U.S.C. § 921(a)(21)(C) states: “The term ‘engaged in the business’ means - . . .as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who 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 his personal collection of firearms.” (emphasis added).

Yet, ATF proposes to eliminate the “as a regular course of trade or business” and “repretitive purchase and resale” elements of the definition provided by Congress – why?

Section II.D. of the Proposed Rule states: “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.” This is clearly the ATF’s purpose – to make even a single instance of the sale of a piece of private property subject to government licensure – which makes the activity too costly and burdensome for the average law-abiding citizen, imposing a chilling effect on the free exercise of 2nd Amendment rights. If Congress intended a single firearm transaction to constitute being “in the business” of dealing in firearms, then Congress could have said so, rather than stating “repetitive purchase and resale of firearms,” in its definition.

Under the proposed rule, there is a “presumption” of being engaged in the business when a person “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”;  repetitively sells or offers for sale firearms that are new, or like new in their original packaging; or 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).”

Many collectors are retired and have little “reported taxable gross income.” It would not be hard for a retiree to spend more on firearms in a year than they report in taxable income. ATF makes the ludicrous 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." Any collector will confirm that firearms in like new condition and in their original packaging are more collectible, and 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 such individuals would need an FFL if they sold even one example from their collection to another collector – even if at a loss.

ATF’s proposed definition of “engaged in the business” is so unduly broad hat no rational person would apply the same criteria to other categories of personal property and consider a single transaction to be presumptive evidence of being “engaged in the business.” Under ATF's proposed criteria, anyone who sells a private vehicle to upgrade to a new or different one would be "in the business" of dealing in cars. If a person sold a couch at a yard sale because they replaced it with a new one, they would be a furniture dealer. This is ridiculous, and a clear over-reach of authority that defies common sense and logic.

Also, any person who lists a car, a boat, or a toaster for sale on Craigslist or any other online marketplace thereby has the intent to "predominantly earn a profit." That is absurd, and not based in fact or real world experience.

Of the few exclusions to the presumption of “engaged in the business,” ATF's restrictive definition of “personal collection” found in Section II.E., is problematic. Notably, "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 2nd Amendment to the U.S. Constitution - how can THAT not be a legitimate purpose for a personal collection of firearms?

This proposed rule is unconstitutional, overreaching and a prime example of why trust in government is declining. This proposed rule must NOT be implemented.

Odessaman wrote: ↑Mon Dec 11, 2023 11:34 am Hey, I agree with Matt as well - we all recognize "those guys" who should be licensed and required to jump through the same hoops Matt and other legitimate dealers do.

As per what defines a dealer in my opinion, I'll give a couple examples...Since you mentioned cars, if you see a car on facebook for 2500, knowing even on its worst day it sells for 5k, and you buy it and repost it for 5k...To me, that makes you an unlicensed dealer. Same rules apply with guns. Buying it at a perceived lower value for the purpose of resaling for a profit is engaging in the business..

Based on this decades-long body of experience, 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; [94]

(2) purchases, rents, or otherwise secures or sets aside permanent or temporary physical space to display or store firearms they offer for sale, including part or all of a business premises, table or space at a gun show, or display case; [95]

(3) makes or maintains records, in any form, to document, track, or calculate profits and losses from firearms purchases and sales; [96]

(4) purchases or otherwise secures merchant services as a business (

e.g.,

credit card transaction services, digital wallet for business) through which the person makes or offers to make payments for firearms transactions; [97]

(5) formally or informally purchases, hires, or otherwise secures business security services (

e.g.,

a central station-monitored security system registered to a business,[98]

or guards for security [99]

) to

protect business assets or transactions that include firearms; (6) formally or informally establishes a business entity, trade name, or online business account, including an account using a business name on a social media or other website, through which the person makes or offers to make firearms transactions; [100]

(7) secures or applies for a State or local business license to purchase for resale or to sell merchandise that includes firearms; or (8) purchases a business insurance policy, including any riders that cover firearms inventory.[101]

Any of these nonexclusive, firearms-business-related activities justifies a rebuttable presumption that the person has the requisite intent to predominantly earn a profit from reselling or disposing of firearms.

N4KVE wrote: ↑Sun Dec 17, 2023 8:53 pm “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”.

I asked the ATF guys at the WPB show yesterday if this was true. One guy laughed so hard I thought he was going to choke on his lunch. Like others have mentioned, he said it’s about the guys who sell “their personal collection” week after week year, after year. And if that was going to be what they are planning to do, why would he deny it? Wouldn’t he just say that’s how it’ll be in the future? GARY.