Joe Biden moms demand action
"Sure it's illegal, but so what? It will take them years and millions of dollars to challenge it. I'll be long-dead by then. And in the mean time, I can tell idiots like you that I closed the gun show loophole. You'll then clap and bark like an obedient seal. Are you starting to see how all of this works?" (AP Photo/Mary Altaffer)
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The Biden Department of Justice, under cover provided by John Cornyn’s disastrous Bipartisan Safer Communities Act, has moved to vastly expand the definition of people who are considered by ATF to be “engaged in the business” of selling guns. It’s a not-so-stealthy move toward backdoor “universal” background checks and closing the alleged “gun show loophole.”

The proposed rule was published in the Federal Register today, which officially opens the requisite 90-day public comment period. Here’s the DOJ’s summary of the proposed rule . . .

The Department of Justice (“Department”) proposes amending Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) regulations to implement the provisions of the Bipartisan Safer Communities Act (“BSCA”), effective June 25, 2022, that broaden the definition of when a person is considered “engaged in the business” as a dealer in firearms other than a gunsmith or pawnbroker. This proposed rule incorporates the BSCA’s definition of “predominantly earn a profit,” creates a stand-alone definition of “terrorism,” and amends the definitions of “principal objective of livelihood and profit” and “engaged in the business” to ensure each conforms with the BSCA’s statutory changes and can be relied upon by the public.

The proposed rule also clarifies what it means for a person to be “engaged in the business” of dealing in firearms, and to have the intent to “predominantly earn a profit” from the sale or disposition of firearms. In addition, it clarifies the term “dealer,” including how that term applies to auctioneers, and defines the term “responsible person.”

These proposed changes would assist persons in understanding when they are required to have a license to deal in firearms. Consistent with the Gun Control Act (“GCA”) and existing regulations, the proposed rule also defines the term “personal collection” to clarify when persons are not “engaged in the business” because they make only occasional sales to enhance a personal collection, or for a hobby, or if the firearms they sell are all or part of a personal collection.

This proposed rule further addresses the lawful ways in which former licensees, and responsible persons acting on behalf of such licensees, may liquidate business inventory upon revocation or other termination of their license. Finally, the proposed rule clarifies that a licensee transferring a firearm to another licensee must do so by following the verification and recordkeeping procedures instead of using a Firearms Transaction Record, ATF Form 4473.

You can read the full rule and comment here.

Just like the earlier frame and receiver and pistol stabilizing brace rules, this rule will be adopted by ATF, too…and then it will immediately be the subject of multiple lawsuits challenging the new rule’s constitutionality and ATF’s authority to issue a “legislative rule” under the Gun Control Act without legislation by Congress.

Same as it ever was.

 

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56 COMMENTS

  1. Can we not attack crap like that with legal injunctions?

    Anyone? Beuller? Beuller? 🙁

    • Yes, but typically not until the rule goes into effect. But how the ATF will regulated hundreds of thousands of people who sell firearms without going through an FFL, as some states permit, is a complete mystery. Maybe that is what all those new IRS agents are for…

  2. comment period means nothing, the pistol brace rule was overwhelming shutdown by comments. look where that got us. Tyranny has only one solution and it’s not courts!

  3. How is this a “Stealth Universal Background Check Rule?”

    Does it address private sales between individuals?

    • “Does it address private sales between individuals?”

      As I understand it, *yes*. 🙁

      By the ‘Bruen’ standard, it will not pass muster… 🙁

      • Bruen probably does not apply to the regulation of “dealers” in firearms because it is not a 2A issue, according to cases past, which concluded that regulation of commercial transactions are not covered, just as the regulations requiring manufacturers to serialize firearms and provide those records to the government are not covered.

        • I’ve wondered about this.

          Potentially, it’s a slightly different flavor of an old game. You find a way to change a regulatory classification to cover the people you currently can’t regulate but want to.

          Once their status is changed they have little or no legal recourse.

        • “Bruen probably does not apply to the regulation of “dealers” in firearms because it is not a 2A issue,…”

          At no time during our nation’s founding were the sale of firearms regulated in any way. Dong so would be seen for what it really was, a back-door infringement of the people’s right to keep and bear arms.

          Perhaps such a challenge needs to be directly presented to Justice Thomas for his and his friend’s opinion the matter… 🙂

        • “Potentially, it’s a slightly different flavor of an old game. You find a way to change a regulatory classification to cover the people you currently can’t regulate but want to.”

          Bingo. Let’s see what Justice Thomas thinks about such games being played with a first-class civil right… 🙂

        • “Let’s see what Justice Thomas thinks about such games being played with a first-class civil right…”

          I would doubt that the “right” itself matters much here. We’re not discussing “keep and bear” but rather “sell”. Clearly that’s not spelled out in the 2A.

          Of course that leads to the logical discussion of if you can keep and bear something that can’t be sold.

          Which is where .gov will probably fall back on my personal hobbyhorse, the Commerce Clause and Wickard.

          I would LOL pretty hard if this ended up overturning that precedent though. Putting the Commerce Clause back in its box would be awesome.

          Dunno how realistic that is. Probably not very.

    • it’s not really, other than they could go after people doing private sales by coming back and saying you should have had a license and done a background check. Especially if it’s after a mass shooting and they need someone to blame.

      And they can scare off any private seller who can’t or doesn’t want to go through the process to get an FFL.

      If they really wanted more background checks they would have to either make becoming an FFL really easy so basically everyone does, or open up the process so non-dealers can still conduct a background check.

    • The way I read the proposed rule, yes, indirectly, by modifying definitions in such a way that more heretofore private transactions may now be classified as requiring an FFL, a 4473, and a NICS check. It still exempts simple private auctioneer sales, so long as the auctioneer does not do something like take the firearms into inventory as part of the sale.

      It establishes “rebuttable presumptions” for civil and administrative hearings, meaning that if you are suspected of engaging in any of the following, the ATF shall presume that you must be licensed and the burden will be on you to prove otherwise.

      “…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 [sic] during the applicable period of time; [64]

      (3) repetitively purchases for the purpose of resale, or sells or offers for sale firearms—

      (A) through straw or sham businesses,[65] or individual straw purchasers or sellers; [66] or

      (B) that cannot lawfully be purchased or possessed, including:

      (i) stolen firearms (18 U.S.C. 922(j)); [67]

      (ii) firearms with the licensee’s serial number removed, obliterated, or altered (18 U.S.C. 922(k); 26 U.S.C. 5861(i)); [68]

      (iii) firearms imported in violation of law (18 U.S.C. 922(l), 22 U.S.C. 2778, or 26 U.S.C. 5844, 5861(k)); or

      (iv) machineguns or other weapons defined as firearms under 26 U.S.C. 5845(a) that were not properly registered in the National Firearms Registration and Transfer Record (18 U.S.C. 922(o); 26 U.S.C. 5861(d)); [69]

      (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); [72]

      (5) who, as a former licensee (or responsible person acting on behalf of the former licensee) sells or offers for sale firearms that were in the business inventory of such licensee at the time the license was terminated (i.e., license revocation, denial of license renewal, license expiration, or surrender of license), and were not transferred to a personal collection in accordance with 18 U.S.C. 923(c) and 27 CFR 478.125a; or

      (6) who, as a former licensee (or responsible person acting on behalf of a former licensee) sells or offers for sale firearms that were transferred to a personal collection of such former licensee or responsible person prior to the time the license was terminated, unless: (A) the firearms were received and transferred without any intent to willfully evade the restrictions placed on licensees by chapter 44, title 18, of the United States Code; and (B) one year has passed from the date of transfer to the personal collection.”

      • (2) spends more money or its equivalent on purchases of firearms for the purpose of resale than the person’s reported taxable gross inome [sic] during the applicable period of time;

        Colluding with the IRS.

        • Yes, but not just the IRS. They want all data to be available at the touch of a button. Their button, that is.

        • Now come on, if you’re buying guns especially to resell them, you are a dealer. And if you make a profit on dealing guns, you need to pay taxes on that profit.

          With any business, if you want to call the police regarding shoplifters, if you want to go to Magistrate court over a bad check, if you want to call the fire department when your business catches fire… Then you need to pay your fair share in taxes to support those services, no matter what product you’re selling.

          Too many people wanting a free ride from the government.

        • Ok, here’s how this would work. Say I sold a brace of unfired Colt Pythons, one at a time, to a collector. He bought one, and asked if I knew of another, and by golly, it just so happens I have another. Sequential serial numbers, sweet bonus! I had all the original packaging and paperwork from when I purchased them in 1980. I have just violated Rules 1, 4B, and 4C. According to my CPA, I would have to report the profit from the sales as taxable income. IRS would notify ATF that I sold two guns for a profit. ATF would investigate, and charge me, perhaps criminally, for selling firearms without a license. And you know that “perhaps” is a certainty.

      • +10, *hat-tip*

        Language matters. Fuck controlling the money supply, give me control over the definitions of words and I can do literally anything I like.

    • no name,

      Unfortunately, at least under the Wickard v. Filburn precedent, it might. We need a DEFINITIVE SCOTUS ruling that administrative agencies can’t ‘make law’. Until we get that, coward fascists like the IRS, DoE, DoJ, ATF, etc., will simply continue their efforts to regulate EVERY aspect of our lives . . . because they know what’s ‘best for us’, donchaknow?

  4. Shall not be infringed is not difficult to understand but is easily ignored. Time to defund the feds, all of it. Move the capital to coservative south and rehire the few necessary openings in a down sized government. Leave the buildings in D C ( district of communists ) for the birds and homeless to crap in.

  5. Chevron is likely to be overturned by SCOTUS before any court does anything other than issue an injunction on this; when that occurs this will be a zombie “law.”

  6. I think the Rino representatives and senators still have seats in Congress that voted for the Bipartisan Safer Communities Act. People have short term memories when it comes to how our representative vote on bad things in Congress. Those representatives and senators reacted to something that should have been more thought through and rushed through a bad bill when they voted to enact the Bipartisan Safer Communities Act. Our Rino representatives and senators said no harm was going to come to the 2nd Amendment from the Bipartisan Safer Communities Act, but here we are in the harm now. It was always a back door for the commiecrats to implement their policies one ink print on paper at a time.

    There is still little information about what happened in Texas. Still no news about how the killer got his money to buy what he had that dreadful day. The news outlets have moved on, but some of us still want answers. Just like what happened in Nashville, TN the information is scarce and the killer’s manifesto is still not made public.

  7. The comment period is a joke and the ATF pays zero attention to it. Its like our Congress, its an oligarchy with a sham democracy.

    • dacian the demented moron,

      NO F**KING SH*T, SHERLOCK!!!!!

      Now, where’s your post where you lobby for abolishing the ATF?????

      F**king quarter-wit hypocrite lying @$$hole.

      • quote——–Now, where’s your post where you lobby for abolishing the ATF?????——-quote

        So says the man who claims to have 4 law degrees and has written numerous books, none of which he can remember the titles too.

        Do you even realize how ignorant that statement was. So genius boy just who would then be responsible for conducting background checks, and enforcing the existing Federal Gun Laws like making illegal machine guns or silencers, or grenades, just to name a few of the laws the ATF enforces.

        Judging from your outburst you must have run low on your prosaic.

  8. miner49er, do you pay taxes when you sell a couch? When I purchase something, I pay the taxes. It’s immoral to impose taxes over and over on the exact same product. You’re a coward willing to bend your knee to anything you’re told, enjoying being the first to be enslaved! I will die, Free.

    • John Adams had this to say about people like miner49er:

      “If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen.”

    • “miner49er, do you pay taxes when you sell a couch?“

      You mischaracterize the situation.

      If I bought couches especially to resell them at a profit, then yes I would expect to be required to pay taxes on the profits.

      If someone writes me a bad check for a couch and I take them to small claims court, if one of my couches catches fire and I call the fire department… Then yes, I should be paying taxes on my profits in order to support these services.

      Too many people just wanting free services from the government

      • “miner49er, do you pay taxes when you sell a couch?“

        “You mischaracterize the situation.”

        No, you did. And no one is surprised.

        “Then you need to pay your fair share in taxes to support those services.”

        I pay annual property taxes to cover those services — but renters do not and they can still avail themselves of such services.

        And neither you, nor anyone who uses that bogus phrase, can state specifically what a “fair share” is.

      • MajorLiar.

        Wow, you never cease to offer examples of your ABSOLUTE stupidity, do you???

        “If I bought couches especially to resell them at a profit, then yes I would expect to be required to pay taxes on the profits.”

        And ANY person (individual or corporate) in the U.S. is ALREADY obligated to report, and pay taxes on, any such ‘profit’ transaction. Now tell me the part where they are required to pay taxes (or fees, or license fees, or etc.) BEFORE they actually sell the product. Now tell me about how, if you can’t enforce the EXISTING tax laws that require people to report and pay taxes on such transactions, another ‘licensing’ law is going to fix that.

        • “Now tell me the part where they are required to pay taxes (or fees, or license fees, or etc.) BEFORE they actually sell the product“

          You are displaying your abject ignorance of business tax law.

          “Inventory tax is a property tax that is determined by the value of inventory and usually falls under a Business Tangible Personal Property tax.“

        • You’re setting up a straw man again, in order to continue arguing. Inventory tax is a property tax that is levied at the state or local level. Most states do not have an inventory tax, having repealed them in favor of income and/or sales/use taxes.

          I set up a straw man argument several days ago, regarding your kids shooting light fixtures, and even though you took the bait beautifully, it led us around the mulberry bush a few laps but nowhere else. Why do you persist?

      • LIAR LIAR, you don’t report anything to the British Gov’t when you sell something as a private citizen, British subject!!!

      • hey dumbfuck, you fail to factor in some things gain in value over time, old vehicles, art, collectable items, firearms.
        so we should be screwed because something we bought decades ago became more valuable???
        dam your stupidity.

        • “we should be screwed because something we bought decades ago became more valuable???“

          You intentionally mischaracterize the situation, we are expressly talking about the fact the FFL holder bought new inventory specifically for resale, that’s why he needs a license as a dealer.

  9. Infringed, Shall, Not.
    I’m going to have to look those words up in the Democrat Dictionary because mine is not the same. Golly gee I hate being ignorant.
    President Biden is the greatest president America has or ever will have.
    No one can fall up stairs with such finesse.
    God Save the Queen, Long Live King Biden

  10. Nero pretty well slays this (above).

    I’d add this however:

    “The term “dealer” is defined by the GCA, 18 U.S.C. 921(a)(11)(A), and 27 CFR 478.11, to mean “any person engaged in the business of selling firearms at wholesale or retail.” However, as originally enacted, the GCA did not define the term “engaged in the business.” [2]

    Nor did ATF define the term “engaged in the business” in the original GCA implementing regulations.[3]…”

    Anyone who can’t figure out that their desire to define a term that any 3rd grade English teacher, even one with blue hair and an activist bent, can parse out tells you what you need to know. The second clause of the statement pretty well defines the first, actually.

    Sure, you can screw with that too, trying to hammer out a non-standard definition of “retail” but when you’re trying that hard, you’re up to something.

    When comparing the definitions of “retail” and “resale” to that of “wholesale” the mentioned clause pretty well sorts itself out.

    The vast majority of what they want to cover here isn’t retail, it’s resale. The people taking this to an extreme as a method of conducting business to derive an income stream with positive cashflow on a short-term inventory basis are already engaged in retail sales at a markup.

    This is a clear attempt at broadening the definition to encompass things the ATF just doesn’t like but which are not covered under the original intent of the 1968 GCA from which the ATF claims to derive its authority to do this.

    • “The vast majority of what they want to cover here isn’t retail, it’s resale. The people taking this to an extreme as a method of conducting business to derive an income stream with positive cashflow on a short-term inventory basis are already engaged in retail sales at a markup.”

      The fact it’s an income stream that is potentially-taxable is secondary, what they really want is a record of who has what gun.

      That’s what they really want, to know who to see, and where to go to confiscate them. Duh.

      Since that, at no time in early American history, would have been acceptable (for obvious reasons), it’s not acceptable *now* under the ‘Bruen’ standard, and needs to be presented to the SCotUS to make that plainly clear to the fascists… 🙁

      • I don’t know how a court would see that argument.

        Realistically, the way I phrased that statement, the operative clause is “on a short-term inventory basis”. That’s the hallmark of a “retail business”. You’re not selling some old guns you bought years back and just don’t want.

        That probably does fall squarely under the Commerce Clause. The question there is if Congress can and/or properly has delegated enforcement authority of that clause to the ATF.

        And I think, if we’re going to be rational and take bites at the apple, we can allow for the idea that currently we’ll let the ATF regulate people “in the biz” who clearly are “in the biz” but fight them on expanding the definition of who is “in the biz” in include poor Nero trying to sell his lucky stash of Pythons that he’s had for decades.

  11. People are missing out on some significant and unintended consequences to this.

    This directive will increase the number of people who the ATF MUST give a FFL to. And FFL grants you rights that the “little people” don’t have.

    Currently if a person wants to get a FFL they have to prove to the ATF that they genuinely intend to maintain a business that engages in commerce in firearms.

    This includes typically the creation of a business plan, inventory management system, zoning compliance etc.

    With this threshold you could simply show that you sell a few new guns every year, but don’t really make a business of it and you end up with an FFL.

    Now here are some of the benefits.

    1) exemptions from some of the more onerous laws in anti-gun states. This includes the ability to purchase and build otherwise illegal versions of modern sporting rifles and the ability to possess new standard capacity magazines.

    2) the ability to cheaply and LEGALLY manufacture machine guns for business use. Do you want to build yourself a 100% LEGAL select fire M4 for $800?? An 07 FFL for $50/year gets you that ability. A companion SOT for $500/yr gets you the ability to make or transfer as many NFA items as you would like in a year. But even without a SOT you can make or transfer, you just need to pay $200 per item.

    Think of it as a $500 all you can eat buffet vs a $200 a la carte menu.

    Also, even if you have a FFL to sell your new guns, you can still sell your used guns personally, this means no background checks. Generally speaking if a FFL who has the license in their name would like to move a gun into their personal collection they are allowed to “book it out” and then its theirs. They must hold it for at least a year before selling it. If they want to sell it in less than a year, they need to book it back in and then sell it through the dealer/manufacturer license.

    The bottom line is that being required to get a FFLis not a good thing. HOWEVER for many gun owners, the OPPORTUNITY to get a FFL would be a very good thing.

  12. hey minor iq, ffl is a dealer license you dumbfuck.
    the wording is able to go after anybody, so that old shotgun or hunting rifle you want to buy, sell or trade to a friend or relative that you have known for decades is effected.

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