https://jamesdjulia.com/auction/spectacular-firearms-auction/?aucSession=1&aucSort=1&aucCat=&aucMan=&aucCol=&aucSearch=&aucPage=1&aucPP=25

as long as your papers are in order, you can sell your possessions through an ffl or auction house

Per the ATF's New Rule, Are You a Gun Dealer or Not?

But that is my problem with how vague this is. "They have bigger fish to fry" could mean anyone.

I don’t like it either, but they aren’t prosecuting obvious illegal dealers now for violating the existing rule. Why would you think that suddenly they are going to pass them up for a grandpa selling his old shotgun?

Be sure to send me a link when they arrest an actual innocent hobbyist for selling 2-3 guns and not a guy moving 100 guns a year. Until then I choose not to worry.

So is 2-3 guns a year the limit Agent Smith?

I edited my post after you quoted it, just so you know.

I have no idea what the limit is per year, and that sucks, and I don’t support any of this. But they have no idea how many guns you sell in a year unless you leave some sort of evidence trail. What they do know is how many guns you sell in a transaction they witness, like at a gun show or a sting operation. I wouldn’t trade more than one gun per show, and I wouldn’t trade with the same guy every time.

Like I’ve said several times now: send me a link when they bust an actual hobbyist.

And you'll probably dismiss it saying that he should have just followed the law.

You have no idea what I would say. Go back to clutching your pearls instead of making baseless predictions.

Under what conditions at a Memphis gun show would you successfully sell a NIB Glock 45 for $750 cash?  How about a whole bunch of them?

No personal attack intended on whoever made that video, but that is sensationalism and picking and choosing details. Read the search warrant affidavit for yourself.

The guy was murdered by ATF and I hope they are held accountable.  That doesn't mean that 100% of their investigation was made up.

Completely agree with you.

Okay, you trust their vague language as much as you want. This is an agency with a proven track record of anti-gun and anti-gun owner behavior.

Exactly, and yet people have still managed to openly flaunt their rules for years without consequence. As long as you aren’t David Koresh or Randy Weaver your chance of ending up on their radar is minuscule. I hope there’s a legal challenge to the rule but I still plan to sell or trade the occasional gun even if there isn’t.

They didn’t outlaw all private transactions no matter how much the professional guntubers are wailing about it. Gotta get those clicks!

While the guntubers rage for clicks, I think you're dismissing it a bit too easily.

We really only need to look back at their pistol brace ban attempt to see how easily an average person can be targeted, intentionally or not. We shouldn't even feel the need to worry about what we are doing if the rule is CLEAR and CONCISE...which it is not. If it could be construed against Average Bob who is selling off his grandpa's gun collection, it isn't worded properly.

ATF New Final Rule on Gun Sales: Breakdown

Fuck that line of thinking.

Anyone with any awareness of what's currently happening in America realizes that if you get on the radar for something completely unrelated to guns, this WILL be used to run your life.

The ATF is an unconstitutional body. Never forget that.

What line of thinking would you suggest? Should I hide in my basement and stop going to gun shows?  Loading a van full of ANFO? Is there perhaps a middle ground between these positions? There is, and that’s the one I plan to take.

Also, how can it be used to ruin your life unless they have some sort of record of your private transactions already?

How does knowing this impact my life in any meaningful way? They exist and they are empowered to use violence against the public whether they are constitutional or not. It’s pyrrhic knowledge at best.

The EE and other online sales forums are “records” and “marketing”

6 days in since this thread started...and no challenges yet on this...?

Interdasting....

The rule has not taken effect yet. The Cargill decision coming this summer is likely to impact it. Rahimi may impact it. The frame & receiver rules will likely impact it. The brace cases will likely impact it….

Set to publish Friday 4/19/2024
Attached File


Current links are to the unpublished:
Federal Register: 04/18/2024 Public Inspection Issue

Permalink: Bipartisan Safer Communities Act Conforming Regulations (Rule)
Bipartisan Safer Communities Act Conforming Regulations (41 page Rule pdf)

Permalink: Definition of Engaged in the Business as a Dealer in Firearms (416 pages)
Definition of Engaged in the Business as a Dealer in Firearms (416 page PDF)

Does that mean this new law takes affect on the 19th or this is just the filing (what ever that means)?

So, I’m a bit lost on something here. This is for F2F sales, correct?

If I sell something on GB or to someone local, take it to an FFL and they do the transfer, all is kosher in the eyes of the BATF?

I watched the two lawyers video(s) and they bring up valid points. One reason I always transferred firearms through an FFL, which tends to send some people into a tizzy.

This whole thing sounds like a train wreck of BS and poorly written.

I am busy with your Mom.  Go outside and play, scooter.

(I copied the Bipartisan act by mistake)
90 Days after publication, unless it get withdrawn. July 18?


ETA: Published

Attached File

Takes effect 30-days after it’s published

No.

It’s not about the method of transfer. It’s about the seller and if that seller is acting as a dealer without his own FFL license.

Using an FFL to transfer your sales makes convictions easier because it creates a paper trail

They are in a hurry to insert this legal spike protein into their restraint-of-trade syringe.

You’re the only person I have seen who believes this. The ostensible purpose of this entire rule change is to force background checks by sellers. Using an intermediary FFL accomplishes this. The dealer is acting as a dealer, not the guy selling the gun. Under your interpretation no one will ever be able to sell a gun under any circumstance.

I can't even make sense of this ruling, and neither can any of the lawyers on our side.

That's the way they want it. It's so vaguely written, that it can mean anything they want it to.

This needs to be attacked by our lawyers on its vagueness, as no law is allowed to be so vague that its only understood by legal geniuses.

With the way it is written, any one person can be charged on any one sale if they have their eye on you. If they aren't after you, they don't see you as a threat, you can engage in as many sales as you want without being prosecuted.

This law should fail due to vagueness.

Criminal statutes that lack sufficient definiteness or specificity are commonly held "void for vagueness."1 Such legislation "may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused."2 The Supreme Court has observed that: "Men of common intelligence cannot be required to guess at the meaning of [an] enactment."3 In other situations, a statute may be unconstitutionally vague because the statute is worded in a standardless way that invites arbitrary enforcement. In this vein, the Court has invalidated two kinds of laws as "void for vagueness": (1) laws that define criminal offenses; and (2) laws that fix the permissible sentences for criminal offenses.4 With respect to laws that define criminal offenses, the Court has required that a penal statute define the offense with "sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."5 The Court may also apply the void-for-vagueness doctrine to analyze statutes governing civil immigration "removal cases,"6 "in view of the grave nature of deportation."7

I find that difficult to believe.


That is my take. But, it shows how absloutly fucked up this thing is written.

I’ve followed the “beta testing” arrests and prosecutions that lead to the rule change. It’s been working up for several years. I’ve been at the gun store when ATF was pulling paper records collecting resale records to prosecute the seller not the FFL. I had my favorite transfer dealer refuse to transfer anymore used blue label Glocks over it.

https://www.sandiegouniontribune.com/news/public-safety/sd-me-atf-memo-20170412-story.html

https://www.justice.gov/usao-cdca/pr/customs-and-border-protection-officer-arrested-federal-charges-alleging-he-operated

  A criminal complaint unsealed this afternoon alleges that Xu sold or otherwise transferred at least 70 firearms through a federal firearms license (FFL) dealer since 2014.

He sold a dozen guns per year, and used an FFL to complete most of the transfers.


This rule is not about background checks. It’s about what sellers of used guns need to obtain their own FFL in order to sell their own property

Regarding the Final Rule:

First, I'm not a lawyer. I'm just a guy who used to be an FFL and for a time had a job that involved explaining state (but not federal) laws. So, take what I'm about to write with a heaping helping of salt. It's worth just what you paid for it.

I've read through nearly all of the entire 466-page document. I'm going to walk you through some stuff that stood out to me. I apologize for the length of the post but we are talking about a 466-page document. There's a lot to digest. I'll try to limit it to how it actually affects most of us. Before I get started, I think it's important to remember where the ATF's authority lies. Federal gun laws give the ATF jurisdiction over interstate transfers of firearms. As such, their authority and jurisdiction is primarily related to licensed gun dealers and individuals and businesses they believe should be licensed. The ATF has relatively little authority over private (unlicensed) individuals or gun transfers that do not cross state lines. Obviously, violation of NFA laws is an exception, but that's not what the Final Rule deals with. This Final Rule is primarily about people who the ATF believes should be licensed. Most of us don't engage in activity that would require a license, nor would the ATF issue us a license for the sorts of gun transactions we engage in. Keep that in mind.

All that said, here's my take:

1.) For most of us, the new rules don't mean much. As the document repeatedly states, the "safe harbor" exception to the definition of a dealer has not changed: "as applied to a dealer in firearms . . . 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;"
Nothing in the Final Rule changes the law that says unlicensed individuals are free to make occasional sales of privately owned guns without the need to be licensed. There are literally of dozens of places in the document where this is confirmed. Here's just a couple of examples (There are MANY more times this is stated):
(page 3): "Neither the BSCA [Bipartisan Safer Communities Act] nor this rule purports to require every private sale of a firearm to be processed through a licensed dealer. Individuals may continue to engage in intrastate private sales without a license, provided that such individuals are not “engaged in the business”
(Page 5-6): "The final rule expressly recognizes that individuals who purchase firearms for the enhancement of a personal collection or a legitimate hobby are permitted by the GCA [Gun Control Act] to occasionally buy and sell firearms for those purposes . . . without the need to obtain a license. It also makes clear that persons may liquidate all or part of a personal collection . . . without the need to obtain a license. Evidence of these activities may also be used to rebut the presumptions discussed above in a civil or administrative proceeding."
(Page 15): "The BSCA definition did not alter the longstanding FOPA [Firearm Owner's Protection Act] exclusions for “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.”
(Page 104): "Congress specifically exempted from the definition of “engaged in the business” as a dealer in firearms “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,” 18 U.S.C. 921(a)(21)(C), so a person who makes multiple sales will not always be engaged in the business."
(Page 188): "Under this rule, persons who sell firearms but who are not engaged in the business of dealing in firearms do not need to become licensed. "
(page 220) "The proposed rule explicitly recognized the GCA’s “safe harbor” provision that a person is not engaged in the business if the person makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby."

2.) To the extent that the Final Rule changes anything, those changes are directed at individuals who are for all intents and purposes a gun dealer, although unlicensed. You know the type. These are the guys who are at gun show after gun show, moving their "collection" from one show to the next. They buy guns with the idea of reselling them and everybody knows what they're doing. It also applies to guys who always have guns for sale, whether they set up at gun shows or not. That said, there's still enough latitude in the "Safe Harbor" provision (occasional sales from personal collection) that these guys aren't going away anytime soon. If they're smart, and say and do the right things, there isn't much the ATF can do to stop them. Federal law allows unlicensed individuals to occasionally sell guns from their personal collections. The law is the law and that law has not changed. Gun shows aren't going away and neither are unlicensed "collectors" selling guns.

3.) The ATF's Final Rule does NOT close the so-called "Gun Show Loophole." (In the FInal Rule, the ATF clearly states there never has been a "gun show loophole") Instead, it provides the ATF with additional justification for taking action against gun show vendors who it believes are "engaged in business" without a license. The ATF would like us to think that setting up at a gun show is proof that you're engaged in business but a careful reading of the Final Rule reveals that they are essentially bluffing. They appear to purposely obfuscate the law with a confusing explanation, but the bottom line is that individuals are still free to make occasional sales from their personal collection at gun shows or anywhere else that doesn't involve interstate transfer. Yes, renting a table at a gun show could be one piece of evidence the ATF will look at when determining if an individual is engaged in business, but this alone doesn't prove the case. As I'll discuss nearly everything in the Final Rule is "rebuttable."
(Page 306-307): "The Department continues to believe that it is appropriate to presume that persons who repetitively or continuously secure permanent or temporary physical space at a cost to display firearms they offer for resale primarily intend to earn a profit from those sales. This is true even if the firearms are sold at a gun show, and nothing in the GCA purports to authorize nonlicensees to rent space at a gun show to deal in firearms without a license [Nothing in the GCA makes it illegal either]. The GCA provision addressing guns shows, 18 U.S.C. 923(j), authorizes licensees to conduct operations temporarily at gun shows under certain limited conditions, not non-licensees. [The GCA is completely silent about unlicensed individuals selling at gun shows.] Again, this does not mean that a collector who occasionally sells a firearm from a personal collection at a gun show is required to be licensed. The presumption means only that the collector likely has a predominant intent to obtain pecuniary gain from the sale of that firearm. To be considered a dealer, evidence would be required to show that the collector has devoted time, attention, and labor to dealing in firearms as a regular course of trade or business. And if a proceeding were to be brought against a collector, that person could refute the presumption with reliable evidence to the contrary. To make this clear, the final rule has been revised to state that certain conduct, including liquidating a personal collection or occasionally reselling firearms to improve a personal collection, is conduct that does not support a presumption that a person is engaged in the business."

4.) It all boils down to how the ATF defines "engaged in business." As long as you don't cross that line, you're OK. The Final Rule spells out SOME of the ways the ATF expects to determine if someone is engaged in business. You can see those red flags on pages 31-33. Here's are some things that will get the ATF's attention:
Offer or suggest you can provide additional firearms other than what you have available
Spend more on guns that you report as income
Repeatedly buy and sell guns, especially within a short period time (the rule says 30 days)
Repeatedly buy and sell guns of the same type/model, etc.
Sell guns in as-new condition in their original packaging
Engage in straw purchase arrangements
Sell any kind of NFA item
As a licensed dealer (or former FFL) get too clever selling "personal guns" off books

5.) One of the key elements that determines if an individual is "engaged in business" is that their intent is primarily to make a profit. It's important to understand that what you paid for a gun and what you sell if for don't enter into the ATF's determination. They explicitly state they don't care about the dollars. They care about how you act. There are certain practices the ATF will look for to suggest you are selling guns as a business. If you're routinely selling guns, you may want to avoid doing these things (pages 47-50) :
Advertise as a firearms business
Create a website or other online presence offering guns for sale
Print up business cards indicating you sell guns
Create a physical space for selling guns (the rule includes gun show tables)
Maintain records of costs, profits, losses of your gun inventory
Secure merchant services (credit card processing) for use in gun sales
Establish business security services for your guns
As you read through the document, especially in the comments and response section, the ATF acknowledges that collectors may do some of these things (including having a gun show table) without crossing the line into being engaged in business. (Page 302: "Nothing in this rule prohibits or criminalizes isolated private transfers of firearms using classified advertisements and at gun shows . . . This presumption does not prevent or hinder individuals from advertising to promote occasional private transactions, as intent to predominantly earn a profit is just one element of being engaged in the business.")

6.) There is definitely a "Because we say so" element to the final rule. Instead of clear boundaries and bright lines that can't be crossed, the ATF provides guidelines that leave them lots of room for interpreting the rule however they see fit on a case-by-case basis. Anyone who has worked with the ATF knows that has always been the case. Almost nothing in the new rule is concrete or set in stone. The rules are presented as REBUTABLE PRESUMPTIONS. In other words, the ATF is saying "If we see THIS, we assume THAT." So, while the rule lists some things that suggest an particular individual is engaged in business, there is nearly always a defense the individual can present to show the presumption doesn't apply to him/her. The inverse is also true. While an individual could claim he's only selling guns from his personal collection, the ATF can attempt to make a case otherwise.
(Page 221-222): "Determining whether a presumption applies is a fact-specific assessment, as is determining whether a person is engaging in conduct that does not support a presumption, such as buying or selling firearms to enhance or liquidate a personal collection. For example, unlicensed individuals selling firearms at a gun show or using an online platform cannot merely display a sign or assert in their advertisement that the firearms offered for sale are from a “personal collection” and preclude application of a presumption. Instead, whether a presumption would apply requires an assessment of the totality of the circumstances, including an evaluation of the reliability of any such assertion regarding a “personal collection.”"

7.) Almost nothing being discussed with this new rule crosses over into the area of criminal prosecution. Violation of these rules will not land you in jail. The rules deals only with civil and administrative procedures. If the ATF determines you are "engaged in business" without a license they could seize your guns, but they won't throw you in jail. If the ATF determines a licensed dealer is improperly selling "personal guns" off books, they can revoke his FFL. They won't throw them in jail.
(Page 5): "These presumptions will provide clarification and guidance to persons who are potentially subject to the license requirement and will apply in administrative and civil proceedings. The presumptions will be used, for example, to help a fact finder determine in civil asset forfeiture proceedings whether seized firearms should be forfeited to the Government and in administrative licensing proceedings to determine whether to deny or revoke a Federal firearms license. These presumptions do not apply in any criminal proceedings but may be useful to judges in such proceedings when, for example, they decide how to instruct juries regarding permissible inferences."

8.) There is a large section of the Final Rule document that deals with "private collections." Be careful when reading this section and try to understand what is being discussed. In many cases, when the ATF refers to private collections, they are addressing the private collections of licensed dealers. Under existing law, an individual who holds an FFL is allowed to sell guns from his/her personal collection without the usual record-keeping and background check requirements. A lot of the discussion in the Final Rule is aimed at clarifying what FFLs can and can't do with their personal collections. It's not always clear in the Final Rule whether the statements refer only to licensed dealers or to everyone. Still, there are a few things that stood out to me. Perhaps most importantly, guns in a personal collection cannot be acquired for purposes of resale. This is not a change. Smart (unlicensed) gun show dealers have always known not to purchase a gun at a show and immediately put it out for sale. They always take it home first and only later decide the gun doesn't fit into their "collection.":
(Page 267): ". . . collectors who purchase firearms for a personal collection are permitted under the GCA, as amended, to occasionally sell them to enhance their collection or liquidate them without being required to obtain a license. However, firearms that are purchased by collectors or hobbyists for the purpose of resale with the intent to predominantly earn a profit cannot be said to primarily have been accumulated for study, comparison, exhibition, or for a hobby. They are considered commercial firearms or firearms obtained for financial gain, not part of a personal collection."

Be aware, the ATF specifically exempts firearms purchased for protection from its definition of a personal collection -- this may mostly be aimed at FFLs who sell their "shop gun" off books, but it is an interesting distinction. (Page 270: "The definition of “personal collection” in this rule does not include firearms that have no special interest to the collector or hobbyist other than as weapons for self-defense or defense of others." Perhaps the take home message is that all guns are for target shooting or collecting, not for personal defense.

There is no question that hunting and sporting guns are included in the definition of personal collection. (Page 270: "At the same time, the Department recognizes that 18 U.S.C. 921(a)(21)(C) allows persons to make occasional sales, exchanges, or purchases of firearms “for a hobby.” For this reason, the Department has defined the term “personal collection” more broadly than just a collection of curios or relics, and has included firearms for “noncommercial, recreational activities for personal enjoyment, such as hunting, skeet, target, or competition shooting, historical re-enactment, or noncommercial firearms safety instruction.”
(Page 273): "The Department has made it explicit in this final rule that firearms acquired for a hobby—including noncommercial, recreational activities for personal enjoyment, such as hunting, or skeet, target, or competition shooting, or historical re-enactments—may be part of a “personal collection.” Therefore, reliable evidence of occasional sales of such firearms only to obtain more valuable, desirable, or useful firearms for the person’s personal collection would not support a presumption and may be used to rebut any ["engaged in business] presumption."

9.) I think it's important to recognize what the Final Rule DOES NOT do. For one, it does not require individuals to obtain an FFL before selling a gun and it provides no mechanism for unlicensed persons to run a background check on a potential buyer. If you are a private (unlicensed) individual and want to sell a gun from your personal collection, you only have two options: 1.) continue as you always have and do the deal with a handshake and an exchange of money. No additional record keeping was required before this Final Rule and no additional record keeping is required now. Nothing has changed. 2.) You could go to an FFL and ask them to facilitate the sale, with the requisite 4473 and background check. Nothing in the Final Rule requires you to do that, however. In fact, nowhere in the 466-page Final Rule does it even mention that unlicensed persons have the option of having an FFL facilitate the transaction.

In short, the Final Rule only matters if the ATF believes you are "engaged in business." If you're not engaged in business, the Final Rule probably doesn't affect you much.
(Page 128-129): "This rule does not prevent individuals who are permitted to possess firearms under Federal law from possessing or acquiring firearms; individuals remain free to purchase firearms from an FFL or in a private sale from a non-licensee who is not engaged in the business of dealing in firearms. Nor does this rule require a dealer’s license for all sales . . . And because this rule does not mandate a license for all sales, it does not mandate a background check for all sales. Likewise, this rule does not prevent those who own firearms from lawfully selling, acquiring, or keeping this property. This rule does not prevent law-abiding citizens from making occasional sales or purchases of firearms for the enhancement of a personal collection or for a hobby—it concerns only those “engaged in the business” of firearms dealing. Firearm owners would only need a license in the event that they are devoting 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."

Bottom Line?
If it looks like a duck, walks like a duck and talks like a duck, it's probably a duck. If you are regularly engaged in the practice of buying and selling guns without a license (regardless of whether you do it online, from your home, the trunk of your car or at a gun show) the ATF has tightened some definitions and made is a bit more likely that they can land you in hot water. They won't send you to jail but they could cost you a bunch of money in lawyers and potentially take your guns away from you (and prevent you from ever getting an FFL). If you're that guy, the Final Rule is for you. But if you're like most of us and just occasionally want to sell a gun from your personal collection, not much (if anything) has changed.

Politics and lawmaking is the art of the possible. These days, not much is possible in terms of restricting gun rights. The Biden administration managed to convince Congress to pass a bill that accomplished very little. The ATF is now attempting to apply that law. Again, it doesn't do much, but the Biden administration wants people to think it's done something. They're making a big splash about the new rule, but when you dig into it, there really isn't much "there" there.

ETA: Never forget that the ATF has far more resources than you do. If they want to make a federal case out of what you're doing, they will. However that ends up, there's a good chance you won't enjoy the experience.

Both of those are California cases involving LEO skirting the law by using their off-roster exemptions, Neither of these cases has any relevance here.

Its unlicensed gun buyers reselling their own property. Interesting you consider complying with the letter of the law to be “skirting the law”

Only the last few pages are the rule. All the other stuff is them talking about the rule, as they are required to do.

They weren’t complying with California law. They were using their privileged status as LEOs to import guns that were otherwise unimportable to CA and moving them for big profit. In other words, they were engaged in the repeated buying and reselling of firearms for the pursuit of profit- - - like a dealer.

If you really want to proclaim that the sky is falling then the onus is on you to show us a big chunk of detached sky. A couple of rogue cops abusing their exemption from the California handgun roster ain’t it.

Import?

California gun stores stock off roster guns. Those able to buy them can legally resell them. That’s complying with CA law.

Though California would like to force every off roster gun to stay with the original purchaser forever, that’s not the law yet.

Buying ten guns, trying them out and keeping the one you like best isn’t dealing. It’s being a shooter

Buying guns only the sainted few can purchase with the intention of reselling them at a big profit to a captive market is dealing. That first article said it was 100 guns, not 10. That’s not being a shooter. It’s probably taken me 40 years to trade that many guns.

Cops are shooters?  News to me

Oh, and another thing: once again, all of this happened under the current set of rules and definitions. It’s not germane to a discussion of the new rule. Like I have repeatedly said, they already have all the regulatory tools they need to cook you if you’re moving a bunch of guns.

It’s clear to me you aren’t going to be happy unless you’re worked up into a frenzy about this. That’s fine, I guess. You do you…but I don’t plan to participate in the panic until I see some guys in handcuffs.

You have nothing to worry about with your EE feedback. Those of us that buy and sell lots of guns may find ourselves targeted like those California cops

About as brilliant of a post as “your join date/post count”

No real rebuttal so you just go low

I sold one thing here in my life, and it wasn’t even a gun. I like FTF shows.

If you’re buying and selling lots of guns you’re already an unlicensed dealer. They don’t need a new rule to target you. The old one will do just fine.

That is true and hasn’t been argued.  Gunsmiths have to have an FFL but don’t sell guns.

And it’s unconstitutional bullshit.