BloombergView: Courts Will Reject Challenge to Executive Order on Being “In the Business of Selling Guns”

Gun show (courtesy addisonindependent.com)

BloombergView is owned by Michael Bloomberg, the anti-ballistic billionaire bully boy who writes big checks for Everytown for Gun Safety, Mayors Against Illegal Guns, Moms Demand Action for Gun Sense in America, The Trace and a gaggle of anti-gun rights Democrats running for political office. I’m not saying BloombergView writer Noah Feldman is in the tank for his boss. Why bother? What I am saying is Feldman’s post Can Courts Stop Obama’s Gun Rules? It’s Unlikely highlights the ridiculousness of President Obama’s executive order on gun sales. Like this . . .

The relevant statute, 18 U.S.C. § 921(a)(21)(C), defines a dealer engaged in the business as “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”

The law goes on to exclude “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.”

As statues go, this one isn’t very tightly drafted. On its face, it determines engagement by the seller’s “principal objective.” If you principally want to make money, you’re dealing. If you’re building your collection, or selling it off, you aren’t.

Let’s be clear: the President’s executive order does NOT change this definition. It merely instructs the ATF to go after gun sellers who fit the definition more aggressively than before. So . . . what? So a seller caught up in the ATF’s new enforcement push – who believes he “isn’t in the business” of selling guns – may be charged with a federal crime. Feldman groks the potential problem.

But what about someone whose avocation is also his business? Say I love guns, love having them around and showing them to my friends, and also love selling them and making a profit on a regular basis? Am I a dealer or a hobbyist? In reality, I’m both. Legally … who knows?

Don’t you love laws like that? A law that you could, for example, skirt by writing a bill of sale for a price lower than the actual amount of money you paid for the gun, thus not showing a profit. Provided you’re not selling the gun or guns to an undercover ATF Agent, who’s to know? Other than the IRS. Not that the Obama administration would use the IRS to target gun owners.

Still confused as to what constitutes a someone “in the business of selling guns”? So is Feldman.

The ATF implies that quantity and frequency of sales matters. Here the ATF guidance is actually confusing. On the one hand, it says that “if you repetitively buy and sell firearms with the principal motive of making a profit,” you need a license, whereas “in contrast, if you only make occasional sales of firearms from your personal collection,” you don’t. This makes it sound as if how much selling you do and how often are the key issues.

Yet on the other hand, the ATF observes that “while quantity and frequency of sales are relevant indicators, courts have upheld convictions for dealing without a license when as few as two firearms were sold, or when only one or two transactions took place, when other factors were also present.” This implies that frequency and quantity aren’t the defining issues.

The ATF says correctly that it’s a crime to deal without a license, and that there are civil penalties for failing to do background checks. True — and though there isn’t anything problematic about saying this, it also doesn’t achieve much, unless it is an implicit warning that criminal prosecutions are coming.

Well exactly. As for court battles, I don’t see this as a legal cause celebre. If the ATF has half a brain in its collective head – a big if, but there it is – it will only target obvious scofflaws. That said, the executive order on gun sales stops being irrelevant when it starts being you.

comments

  1. avatar NDS says:

    Forget “saving just one life”, these XOs will be “worth it” if they send just one law-abiding gun owner to federal prison.

    1. avatar Bob says:

      They don’t have to send you to prison. If you are an individual selling several guns at a gun show, ATF may decide to charge you with dealing without a license. Why? They just may not like you or the guns you are selling. They may see you as an easy mark. Or they may be only trying to curry favor from the administration or get a promotion. They may plant evidence on you, or lie about how many guns they saw you buy/sell. (Lies are not unusual for ATF agents – It’s well documented). Even though you are guilty of nothing, the legal fees to defend yourself may bankrupt you. ATF and the administration will get the publicity they want about getting tough on prosecuting unlicensed dealers. When you prevail in district court, the government will appeal the decision – they have nothing to lose and all the time and money to do so. Remember, it’s your tax dollars that pay them. By the time you win in the Appeals Court, you are deeply in debt, and the media will have forgotten your case. The government gets the publicity it wanted – at your expense. You end up broke, maybe losing your job, your wife, your house and car, and the government gets what it wants…..

      In the alternative, the prosecutor may try to get you to plead guilty to some offense. You may be forced to plead because you don’t have the money for lawyers…….

      Think it won’t happen? Think again.

      1. avatar uncommon_sense says:

        +1

        Having said all that, we (People of the Gun) have a new legal weapon: crowd sourced funding. In the event the ATF does try to prosecute someone, figuring that the accused will have insufficient resources and go down, let’s just say that the ATF and federal prosecutor/s will be in for a big surprise. And when the accused prevails in criminal proceedings in court, the exonerated defendant can turn the tables and charge the ATF for deprivation of rights under color of law … assuming that they can actually get the relevant federal prosecutor to actually charge those ATF agents. (I know, good luck with that.)

      2. avatar Gadsden16 says:

        This is similar to some of the tactics employed by the BATFE back in the 1980s as a way to reduce the number of dealers…
        Many were charged with potential violations of the NFA (selling theoretical components of automatic weapons, etc.). While no real crime was committed, many dealers were forced out of business, either financially or as part of an agreement to drop charges.
        In the end, BATFE got the result it wanted, legally or otherwise…fewer dealers.
        Remember, the government is only spending taxpayer money and can print whatever it wants to cover any unexpected costs so fiscal considerations are essentially nil, whereas the rest of us actually have to earn and spend our own money.

    2. avatar BLAMMO says:

      … or to the polls to vote.

  2. avatar O2HeN2 says:

    I’ve been wondering if applying for and FFL and being rejected would make a great defense from being accused of being “engaged in the business…”

    O2

    1. avatar BDub says:

      That was my thinking as well. Clinton specifically set out to limit the number of, and the ease with which, people could get an FFL, and now they want to increase the number of people who need and FFL to sell guns. All the while complaining about the number of guns sold without background checks. More executive facepalm.

      1. avatar Jim Bullock says:

        Those arent bugs, those are features. The point is criminalization b other means n supprrssion by other means.

        That riff on the “inconsistency” needs to be tip of tongue for every statement n comment madebto media. Then the kcker. “That makes no sense.” “Exactly. There’s something else going on here…”

    2. avatar LongPurple says:

      That sounds perfectly reasonable.
      If someone’s application for an FFL is rejected on the stated grounds of the BAFTE that he is not REALLY planning to “engage in the business of selling guns”, as the agency perceives it, they would be inconsistent in later claiming he was in that “business”.
      I think the sticking point would be a self-imposed limit on the number of sales made — say 25/year?

      1. avatar Geoff PR says:

        “I think the sticking point would be a self-imposed limit on the number of sales made — say 25/year?”

        They refuse to set the number of transactions.

        1. avatar LongPurple says:

          If the applicant states e.g. “I will not sell more than 25/yr” in his application, and BATFE rejects the application for an FFL on the stated grounds that they do not consider him to be “in the business” because of this low volume, how can they later reverse themselves and say he IS “in the business” and therefore must have an FFL?
          While BAFTE may indeed “refuse to set the number of transactions”, perhaps they can be forced into a case-by-case agreement on some “number of transactions” NOT “being in the business”.

  3. avatar Mack Bolan says:

    The Zelman Partisans have a great take on how “law abiding” gun owners should proceed.

    Malicious Compliance
    http://zelmanpartisans.com/?p=2686

  4. avatar Ragnarredbeard says:

    Maybe they’ll finally target the guys who buy CMP rifles and ammo and then sell them at the next gun show with the CMP tags still on them. That’s about as obvious as it gets.

    1. avatar Stinkeye says:

      I don’t understand who’s buying from those guys. Why buy a CMP rifle or ammo at a significant markup, when the CMP will be happy to send the exact same product right to your house for less?

      1. avatar DetroitMan says:

        People who can’t be bothered to meet the CMP requirements. Among other things, the CMP requires you provide proof that you passed some kind of gun safety training. They also require proof that you belong to a CMP affiliated club. There are some cheap and easy ways to satisfy these requirements that almost anybody can utilize, but a lot of people don’t know about them.

        Lots of people just want an M1 and don’t want to jump through government hoops. For them, a marked-up CMP rifle at a gun show can be pretty attractive.

  5. avatar Dean Carpenter says:

    Are we willing to apply en bloc? It would be interesting to have the BATF&E&RBF receive several thousand applications in response to the EO.

  6. avatar Dirk Diggler says:

    better question is how anyone knows you made a profit? I sell a G26, which retails for $520, to someone for $700. Is that a profit? Dunno. Did I pay $520 for the Glock or $700? I may have overpaid on my end. . . . and gosh darn it, I paid cash and don’t have the receipt.

    1. avatar uncommon_sense says:

      If the feds decide to investigate you for being “in the business”, they WILL subpoena your bank and credit cards. If you purchased something for $540 from a local gun store on your credit card, it will be obvious. All the feds will have to do at that point go to the FFL who WILL have a record selling that handgun in your scenario.

      And even if you didn’t purchase a firearm with a credit card, the feds can still trace it back to your local FFL and pull the bill of sale there.

      Unless you pay cash AND purchase the firearm from a string of multiple (untraceable) private sellers, it will be traceable and the feds will be able to determine what you paid for it.

  7. avatar Fuque says:

    Executive avenue for relief,.. Dead end
    Judicial Avenue for relief,.. Dead end
    Legislative avenue for relief, Dead end.

    Is it any wonder that people are looking towards the Patriot movement?

  8. avatar Garrison Hall says:

    Giving this kind of open-ended decision making power to unelected bureaucrats is deadly to freedom and liberty. Of course with statists like Obama, that’s the intent. I’m harping on this of late, but this is where the NRA’s take-no-prisoners lobbying pays off. You can bet that right now elected politicians phone lines are being lit up with friendly calls from the NRA. They’ve been playing this game for a very long time and are very good at what they do.

  9. avatar binder says:

    Everyone needs to get over it. I think the relevant case was some cop buying a blue label Glock for his relative. In that case they were clearly doing a straw purchase even if the other individual could pass a background check. And that’s what they are talking about, straw purchases.

    1. avatar Matt in Maine says:

      If I can get a deal on a computer and I buy one for my brother (who is also legally able to own a computer) who then pays me for it, should I go to jail or be punished for making a straw purchase? Should a straw purchase not be defined as buying something for someone who is prohibited from making the purchase himself and nothing more? The current interpretation is just a way to make criminals out of good people.

      1. avatar Binder says:

        He could have done a transfer with a FFL, it may have kept him out of trouble. But how do you want to define a dealer? I think buying a gun for resale is as close as you can get. Also the computer manufacture is not require to honor the warranty. That’s why there are gray market electronics without the warranty. As for straw purchases, its the law, and good luck trying to get that one changed. Honestly I think the whole gun law issue is a mess, but If you have a better idea how the prevent “unlawful” gun sales i would love to hear it.

        1. avatar neiowa says:

          So “unlawful” purchases is the problem you libtards are wetting your panties over? Thought so it is guns are the problem = ban guns.

          I’m interested in reducing the criminal use of firearms violating the personal rights of others. Not interested in creating BS legal “gotcha” code.

        2. avatar Stinkeye says:

          How about we stop worrying about unlawful gun sales and worry about unlawful gun usage instead?

          Incidentally, there is no effective way to prevent “unlawful” sales of guns (or any other item, for that matter) in a free society. We can’t even keep drugs and weapons out of our freakin’ prisons. So if you want to control illicit sales of goods, we’re going to need our society to at least be more restrictive than our prisons. You up for that?

          Add a few more regulations and laws on top of the mountain we already have. Maybe the next one will be the one the criminals will decide to follow, right?

    2. avatar JR_in_NC says:

      “Everyone needs to get over it.”

      I get it. I can keep my Dr., too, right?

      Acquiesce to Statism on your own. That’s your choice.

    3. avatar Timbo says:

      B.S. if “they” are. The “they” are tyrants that are planning on taking this further and further, unless we stop them in their tracks right here and now. “They” got away with banning fully automatic guns and other explosives long ago, and now want to go even further and stop us from buying, selling, trading, or even gifting guns amongst ourselves- as free citizens in this nation have a constitutional right to do. Next they will attempt to treat firearms like a vehicle and put registrations and titles with every single firearm- which effectively creates a catalog of every legally owned firearm, where it’s “supposed to be”, and who’s “supposed to have it”. Then will come the confiscations. First of all handguns, then all semi-autos, then ALL guns- period! Then the real tyranny will begin, with slavery, death and misery to follow- with no way to fight back! We must stop them right here and now!

  10. avatar Fred says:

    Didn’t the anti-gun side create this situation by arbitrarily restricting who could access NICS by changing the definition of a dealer to make it more expensive and difficult? Now they come in and demand enforcement of a problem they created.

    Obama paraded out the families of victims and allegedly cried. How would these changes have stopped any one of those cases? In every single one the purchase was legal or it was illegally obtained weapons. These changes wouldn’t stop that in the future. This just is a burden on the law abiding.

    I heard Larry Pratt on the radio, he spoke right after Shannon Watts, I think you can hear it at on point radio .org. Watts said some ridiculous things ( like, “this issue is over, the gun lobby just doesn’t know it), but I was disappointed to hear Pratt play softball. He used anecdotal evidence and did not commit to a strong message. If I didn’t know what he was talking about he wouldn’t have convinced me.

    Also, why is no one attacking the “gun lobby” narrative? The NRA represents 5 million (paid and voluntary) members (as opposed to MDA’s false claim of 3 million members) and spends ~20 million a year on political activities. Money from manufacturers makes up less than 15% of donations. Bloomberg represents one man yet on the various talks I heard there were representatives from MDA, the Trace, Everytown, and Bloomberg Business, and he has been known to spend tens of millions on a single candidate in a single state in a single month in addition to funding all those groups. On the one hand are millions of people funding the NRA, GOA, and others, and on the other you have one man outspending millions of people providing the majority of anti-gun commentators and anti-gun stats. Out of that situation the takeaway is “the gun lobby holds all the power”. I repeat, why is no one attacking that narrative? Gun groups represent the people in defending the rights of the people, yet all we hear is, “the evil gun lobby controls the country and only wants to sell more guns”. This has to change or our rights will continue to be lumped in with the wrongful “evil gun lobby” narrative.

    1. avatar Roscoe says:

      Outstanding point!

      So who is going to get this message out for public consumption with investigative reporting and follow up exposes? TTAG- no minimizing intended?

      The problem here is that the legacy media is an arm of the Democrat party’s anti-gun industrial complex; the anti-gun propaganda division.

      A revelation of this sort must be heard often from various sources before it is legitimized and digested by listeners. But all the viewers will hear from the various legacy media is anti-gun propaganda, so a charge of wholesale mischaracterization of the NRA and its supporters by the gun grabbers, and exposure of the phony ‘grass roots’ fully Bloomberg funded anti-gun groups for what they are, will gain zero traction from the media; they willingly perpetuate the rhetorical misconceptions created by the gun grabbers.

      But I agree, your points must become part of the conversation every time the anti-gun proponents accuse the NRA of being the big bad corporate bully behemoth in the room; a little class warfare spice the antis try to add to their demonization of honest, law abiding gun owners and all those who provide gun owners with the ability to keep and bear arms.

  11. avatar Marbury says:

    BREAKING – FoxNews43 – Scott Perry , R , Pa. – Introduced Second Amendment Defense Act to nullify executive ” actions ” .

    Note : executive actions are much weaker than ‘ orders ‘.

  12. avatar Kyle says:

    Being how so many of you are saying that what President Obama did basically amounts to nothing minus a few tiny changes, I cannot see how a court would strike it down.

    1. avatar Timbo says:

      Under our Constitution, the president doesn’t get to make ANY changes to ANY laws. An executive order is no law and cannot be applied to ANY private U.S. citizen as a type of law or directive. Executive orders are merely directives to the various departments under the executive branch on how to proceed in the enforcement of ANY laws that are legally passed by the Congress of the U.S. Neither can a president use an executive order to apply interpretation to ANY law legally passed by the Congress of the U.S., as that is the separate job of the courts.

    2. avatar DaveL says:

      Exactly. Strike what down? It would be like striking down an announcement that Friday would be Hawaiian Shirt Day at the FBI.

  13. avatar Anon in CT says:

    IF the Fed gov’t was trying to solve a problem instead of sound good and slap folks it doesn’t like, they would propose a new class of FFL – one for “Collectors, Enthusiasts and Casual Sellers” – this license would give access to the NICS system, and allow the holder to buy directly from retailers and wholesalers over the ‘net. It would not permit one to hold substantial inventory, but would allow one to perform transfers for friends and families, and to sell firearms at shows, in both cases with NICS checks.

    1. avatar neiowa says:

      BS – What does “KEEP” mean if not buy, store and sell as one desires.

      You desire a license from your better move to Moscow and apply for one.

      1. avatar Anon in CT says:

        I’d like the ability to buy directly over the internet from anywhere in the country, the way Obama thinks that I already can. In a better world, that wouldn’t require any sort of license or background check, but in this fallen world I would be willing to trade some scrutiny and licensing for increased convenience. I want something like an 03 C&R license but without the requirement that the gun be old. I’d like the ability to have FedEx and UPS send guns to me and deliver guns for me.

  14. avatar Hi Power Toter says:

    This particular EO is a lot of smoke and no fire.

    The President didn’t change the law, or how the law will be interpreted.

    So what did he accomplish?

    – The media is incorrectly reporting the EO as if it did, at least partially, close the “gun show loophole.”
    – The administration then claims they’ve made progress on “gun safety”
    – The anti-gunners claim this as a victory
    – There’s no real change, so this doesn’t become a campaign issue or get struck down in the courts
    – The increased confusion deters some private party sellers at the margin, pushing more private sales through FFLs

    At best this is all show and no substance. At worst it’s a deliberate distraction.

    So let’s assume it’s a distraction…what are they distracting us from?

  15. avatar Ragnar_d says:

    Dr. Floyd Ferris spoke to this exact thing in 1957:
    “There’s no way to rule innocent men. The only power any government has is to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kinds of laws that can neither be observed nor enforced nor objectively interpreted—and you create a nation of lawbreakers—and then you cash in on guilt. Now that’s the system, Mr. Rearden, that’s the game, and once you understand it, you’ll be much easier to deal with.”

    If anyone needs me, I’ll be in the Gulch.

    1. avatar Timbo says:

      Ya they can go that route. I’ve said many times the exact same thing about DUI laws and such- how they continue to drop, drop, drop the legal limit on blood alcohol in order to keep the DUIs coming for the criminal justice system to stay enriched with fine payers and tax dollars to go to the courts, jails, and prisons, not to mention the salaries of police, prosecutors, judges, and even defending attorneys (and the law schools full of future defenders and prosecutors). That is the game, but with firearms- in this nation, they are very likely to have it backfire. If there is any one thing that could/would cause a new civil war in this day and age- that is THE issue that could do it! With whole states succeeding and the feds left with empty coffers as the tax dollars would suddenly stop.

  16. avatar Bruce says:

    I don’t see the govt. getting away with this long term. On the one hand, they won’t issue a FFL unless you have a brick and mortar business. On, the other hand, they think you are in business, and should presumably have a FFL in order to do background checks when you have maybe some indicia of being in business. So, what happens when you are in the middle between when you can get a FFL and when you had better have one? They probably think that they can just mans ate this window, preventing those people from selling except through another FFL. They can’t normally do this (their position that you need brick and mortar for an FFL estopps them fro claiming the opposite), and even less so, since this involves an enumerated fundamental right.

    1. avatar Excedrine says:

      The ATF does not explicitly require a brick-and-mortar business. This is not written in any field manual of any agency, nor is it in any federal statute, regulation, or rule. Two-thirds of all active FFLs are currently home-based.

  17. avatar kenneth says:

    “As statu ^t^ es go, this one isn’t very tightly drafted” Really, how much can a spell checker possibly cost :-)? (they’re free.) On to the point:
    All of this reminds me of why I dropped my FFL at the start of the NICS system. The early word the ATF gave us was the system would NOT be federally funded, they would run it for a quarter and then divide the costs by the number of calls received, and then bill us that amount times the number of calls we made. So if they decided (three months LATER!) to bill us $100 a call, for example, and we sold a hundred guns, we would owe them $10K that quarter, with no way to charge the fees back to the customer.
    As a small gunsmith shop in a county of 7,360 people, I had not the financial ability to absorb what could have been such staggering losses, and so opted to drop gun sales instead. They were a small part of my business anyway, repair is most of my revenue. Then AFTER the system went on line and crashed a hundred times in the first month, Congress decided to pick up the tab, but there was no way to know that (barring a crystal ball, OFC, which no one I know of has 🙂 ) ahead of time.
    It’s all part of keeping the sheeple guessing and jumping through hoops. The more confused and uncertain they are, the easier it will be to control them. All the ambiguous terms that should never be drafted into a law in the first place, like; “with the principal objective of livelihood and profit”, “occasional sales”, “person who devotes time, attention, and labor to dealing in firearms”, etc., are all purposely vague, naturally. That way they can define the ‘law’ however they like, on a case-by-case basis.
    If I sell one personal firearm through a classified ad, am I NOT devoting “time, attention, and labor to dealing in firearms”? Well, it took all three to place an ad, so yes, except if the powers that be DO decide to notice the “s” in “firearms”, in which case it might take two firearms sales to run afoul of this ‘law’. But how is a private seller to know? I won’t be selling any of my guns now, but then, I wouldn’t have anyway. I bemoan not keeping a lot of the ones I sold decades ago already, esp. the pair of 1960s vintage Pythons, and an old-model Ruger Blackhawk in .45LC…

  18. avatar Hannibal says:

    “Say I love guns, love having them around and showing them to my friends, and also love selling them and making a profit on a regular basis? Am I a dealer or a hobbyist?”

    You are in the business. Loving what you do doesn’t nullify that. This isn’t that hard…

  19. avatar William says:

    Did he go to Lawschool? If he did he should get a refund.

  20. avatar MarkPA says:

    “I don’t see this as a legal cause celebre. . . . ATF . . . will only target obvious scofflaws. That said, the executive order on gun sales stops being irrelevant when it starts being you.”
    That seems to be the key here.
    Imagine a guy who rents a store-front, stocks some guns. Hangs-out a shingle, but – alas – doesn’t make a single sale. He is “in-the-business” however unsuccessfully.
    What I’m concerned with is the intimidation effect. Imagine a guy who has no fixed place of business; no business cards; no shingle; no table at a gun show. Yet, he sells one gun a month and one sale of 88 guns by buying an estate’s guns and selling them to a collector. He sold 100 guns in a year; clearly, he is a dealer!
    OK, well let’s suppose that this is the regime our benevolent state imposes on us. Either of these two guys ought to have the opportunity to acquire a license at a low fee and a low barriers-to-entry. The ATF does its best to make it difficult for either of these 2 hypothetical guys – as well as everyone between them – from acquiring a dealer’s FFL. There is no “safe-harbor”. If the Executive branch wants to treat edge cases harshly then Congress is obliged to create a safe-harbor. Something analogous to the C&R license; a “Dealer-Lite” license allowing any qualified applicant to sell 100 guns per year without foregoing his 4A rights over his home; without having to declare a business and subject himself to business zoning/licensing. A modest fee – say $5/year. And so, most of us should sign-up for such a Dealer-Lite license and let the ATF try to audit us all.
    It’s unconscionable to subject a citizen to the threat of an outrageous prosecution without enabling him to avail himself of a “safe-harbor” on a perfectly reasonable basis – i.e., low barriers to licensing.
    This is the way we ought to respond; petition our Congress-critters to respond by compelling ATF to open a “Dealer-Lite” FFL classification that will allow the citizen-in-doubt to comply with the Executive’s threat.

  21. avatar Sam I Am says:

    For those who believe Obama’s EO/EA/Whatever is just a matter of, “….nothing to see here, folks; move along.”, I invite you to Lewis Carroll’s description of a conversation:

    “When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.”

    “The question is,’ said Alice, ‘whether you can make words mean so many different things.”

    “The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

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