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.