Ah yes, another day which will live in infamy. Goodness know people who love citizen control seem to be drawn to it. I’m passing this along from a list I’m on, those that can drop a note, please do so.
The Department of Justice has put forth a proposal amending ATF regulations to implement the provisions of the Bipartisan Safer Communities Act that broaden the definition of when a person is considered “engaged in the business” as a dealer in firearms which would require that individual to acquire a Federal Firearms License (FFL).
This proposal defines, among other things, the following to be dealers:
Anyone who sells or offers for sale a firearm within 30 days of purchase.
Anyone who sells or offers for sale firearms that are new or like new in their original packaging.
Anyone who makes or maintains records in any form to document firearms purchases.
Any violation of this regulation would result in asset forfeiture, fines, and/or imprisonment. This proposed regulation is essentially a back door attempt to establish a national gun registry, which is illegal. A national registry is the first step for gun confiscation.
Before this proposal can go into effect there must be an opportunity for citizens to make comments for and against it. The Comment Period ends December 7th.
I am asking each of you to submit your comments objecting to this egregious proposal. You can do this by going online to Regulations.gov and referencing Docket Number ATF 2022R-17 or by mailing a letter (postmarked December 7th or before) to:
Helen Koppe
Mail Stop 6N-518
ATF Office of Regulatory Affairs
99 New York Avenue NE
Washington, DC 20226
Attached is a sample form letter containing objections you could put forth. Please read and select certain portions to state your objections. Do not copy anything verbatim, put it in your own words. There is a lot in there to pick from.
Remember to be polite and respectful.
The only rights you have are the ones you are willing to defend.
RE: ATF 2022R-17
To whom it concern:
On behalf of __________, a _____ of __ (members, participants pick one), we are writing to
object to several provisions of the proposed 27 CFR Part 478. We operate what you would consider
to be a gun show. The proposed regulation goes far beyond the language and intent of the new
provisions of law set forth in the Bipartisan Safer Communities Act (“BSCA”). In particular the
proposed rulemaking is looking to 18 U.S.C. §921(a)(21)(C) and (22) for support for the definitional
provisions being supplied for presumptions as to those “engaged in the business” of selling firearms
and selling fire arms with an intent “to earn a profit” as set forth in the proposed regulation.
18 U.S.C. §921 (a)(21)(C) provides:
The term “engaged in the business” means–
(C) 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)
Please note this provision states to predominantly earn a profit. The presumptions put
forth in the proposed regulations presume that the sale of one firearm for a sum more than the
person paid for it constitutes a sale for a profit and requires the person to be a licensed firearms
dealer. We submit that this interpretation is beyond the statutory language to “predominately
earn a profit”. We also submit that it fails to take into account any other expense or time value
of money associated with the sale of the firearm, which is a part of any normal calculation of
“profit” and hence is beyond the proper basis of an interpretive regulation. Many of our
________ (members, participants) expend substantial sums to attend our events. These costs
would be factored into any reasonable definition of “profit”. But more importantly the
presumptions put forward are contrary to the statutory exceptions as to who is a dealer “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”. (see above) Many of our table holders are engaged in sales
for their personal collections. But the proposed presumptions do not recognize this exception.
Further, the proposed regulations conflate together “sales, exchanges, or purchases of firearms
for the enhancement of a personal collection” and “for a hobby”. The two provisions are
separate. The “for a hobby” provision allows a person to sell, exchange or purchase firearms
on an occasional basis for a hobby, without being required to obtain a license. The “for a hobby
provision” and the “for a personal collection” provision are two separate and distinct items.
These provisions relate back as well to the provision of “to predominately earn a profit”.
Therefore, the person who purchases or sells firearms occasionally as a collector or for a hobby
is not a firearms dealer, and not required to be licensed. The proposed regulations do not
account for this and go beyond the statutory mandate.
The proposed regulations provide:
Section 478.11 provides in part:
Dealer. Any person engaged in the business of selling firearms at wholesale or
retail; any person engaged in the business of repairing firearms or of making or fitting
special barrels, stocks, or trigger mechanisms to firearms; or any person who is a
pawnbroker. The term shall include any person who engages in such business or occupation
on a part-time basis. The term shall include such activities wherever, or through whatever
medium, they may be conducted, such as at a gun show or event, flea market, auction house,
or gun range or club; at one’s home; by mail order; over the Internet; through the use of other
electronic means (e.g., an online broker, online auction, text messaging service, social media
raffle, or website); or at any other domestic or international public or private marketplace or
premises.
* * * * *
Engaged in the business—
* * * * *
(c) Dealer in firearms other than a gunsmith or a pawnbroker. (1) 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 the person’s personal collection of firearms.
* * *
Whether a person is engaged in the business of dealing in firearms requiring a license is
a fact-specific inquiry. Selling large numbers of firearms or engaging or
offering to engage in frequent transactions may be highly indicative of business activity.
However, there is no minimum threshold number of firearms purchased or sold that
triggers the licensing requirement. Similarly, there is no minimum number of
transactions that determines whether a person is “engaged in the business” of dealing in
firearms. For example, even a single firearm transaction or offer to engage in a
transaction, when combined with other evidence (e.g., where a person represents to others
a willingness to acquire more firearms for resale or offers more firearms for sale), may
require a license. A person shall be presumed to be engaged in the business of dealing in
firearms in civil and administrative proceedings, absent reliable evidence to the contrary,
when the person—
a. 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;
b.
c. Spends more money or its equivalent on purchases of firearms for the purpose
of resale than the person’s reported gross taxable income during the applicable period of
time;
* * *
(iv) Repetitively sells or offers for sale firearms—
i. That are new, or like new in their original packaging; or
ii. Of the same or similar kind (i.e., make/manufacturer, model,
caliber/gauge, and action) and type (i.e., rifle, shotgun, revolver, pistol,
frame, receiver, machinegun, silencer, destructive device, or ‘other’
firearm);
* * *
(4) Where a person’s conduct does not otherwise demonstrate a predominant intent to earn
a profit, the person shall not be presumed to be engaged in the business of dealing in
firearms when the person transfers firearms only as bona fide gifts, or
occasionally sells firearms only to obtain more valuable, desirable, or useful firearms
for the person’s personal collection or hobby.
The underlined language deviates substantially for the statutory provision of selling
firearms to “predominately earn a profit”. Selling or offering to sell firearms and being willing
to buy does not in and of itself evidence that this is being done to “predominately earn a
profit”. Most who collect firearms or engage in the sale of firearms for a hobby are willing to
buy or willing to sell, but this in and of itself is not establish by a preponderance that they are
doing so to “predominately earn a profit”. The provision that a person who spends more money
than their reported gross taxable income on purchasing firearms for resale, has no basis what-
so-ever in “profit”. Profit is based on a sum in excess of all costs. Not gross income. Further,
many retired people have a small gross taxable income compared to their assets. This provision
is not in conformance with the law.
The provision prohibiting sales of firearms that are like new in their original packing or
of a similar kind by manufacturer, model, caliber and type of gun is ludicrous. Virtually every
collector or hobbyist focuses their efforts on specific manufactures and types of firearms. They
are for the most part devoted to something. Further, like new in original packing firearms are
what is the most sought after of collectible firearms. These provisions do not constitute
reasonable presumptions by themselves of being engaged in the sale of firearms.
Several of the provisions relating to an “intent to predominately earn a profit presumption” are
erroneous. The provisions provide in part:
Predominantly earn a profit. (a) The intent underlying the sale or disposition of
firearms is predominantly one of obtaining pecuniary gain, as opposed to other intents,
such as improving or liquidating a personal firearms collection. * * *
(b) The intent to predominantly earn a profit is a fact-specific inquiry. A person
shall be presumed to have the intent to predominantly earn a profit from the sale or
disposition of firearms in civil and administrative proceedings, absent reliable evidence to
the contrary, 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 offering
their firearms for sale, makes available business cards, or tags firearms with sales
prices), regardless of whether the person incurs expenses or only promotes the
business informally;
(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, o r table space at a gun show, or display case;
(3) Makes or maintains records, in any form, to document, track, or calculate
profits and losses from firearms purchases and sales;
The provisions presume intent to profit without any proof of profit, and shift the burden to the
seller of the firearms to prove otherwise and subject the seller to civil forfeiture of their firearms as
well 18 U.S.C. 924(d)(1). The changes in the law did not provide that a person could not advertise a
firearm for sale, put a price tag on it, place it for sale on the internet, or rent a table at a gun show. The
law specifically provides for occasional sales for gun collectors and hobbyist. The proposed
presumptions prohibit all such sales except maybe by word of mouth. These provisions are not in
conformance with the law.
Gun shows and collector club meetings with sales and purchases by non-dealers were not
prohibited by the BSCA. Had that been the intent of the BSCA it would have so stated. Had it stated
such, much opposition would have come forth. It is not proper to take actions by regulation that go far
beyond what Congress provided in law.
We respectfully submit that the provisions in paragraph (c) setting forth presumptions of
“engaged in business” and the revisions setting forth presumptions of “intent to earn a profit” are not
supported by the language of BSCA, and should not be adopted.
Sincerely,