The ATF recently released proposed rule ATF 2022R-17 regarding what it means to be “engaged in the business” as a dealer in firearms. Ostentatiously, the rule is meant to define the nuanced changes in terms created by last year’s Bipartisan Safer Communities Act. In actuality, the proposed rule expands who is required to have an FFL to sell firearms with a series of absurd presumption
This post is the first in a series to examine the proposed rule and provide both understanding and a critique. Over the next few weeks, we will explore the definitions, the presumptions, and the affects. Once comprehended, you will be able to provide the ATF with appropriate feedback in the form of a comment to this rule.
Who is affected?
ATF estimates there are either 98,160 unlicensed sellers nationwide with 24,540 persons who would now require a license to sell firearms, or there are 1,310,000 unlicensed sellers (and barterers) nationwide with 328,296 persons who would now require a license to sell firearms. Notice this is an either-or estimate and not a range. The ATF really is just guessing at how many people will be affected.
What do they know? That lower number, 24,540 unlicensed dealers, is nearly twice the number of sellers estimated on Armslist. It is becoming clear that not only is the Biden Administration after Armslist and gun shows with this rule, but potentially you if find yourself in one their “presumed” categories.
The Terms Defined
We should always start with the basics. What are the important terms being defined?
- Dealer
- Engaged in the business
- Sale
- Something of value
- Personal Collection
- Predominantly earn a profit
Pertinent Excerpts of the Definitions:
- Dealer: “A person engaged in the business of selling firearms at wholesale or retail; . . . 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; or 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: “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.”
- Sale: “The act of providing a firearm in exchange for something of value.”
- Something of value: “includes money, credit, personal property (e.g. another firearm or ammunition), a service, a controlled substance, or any other medium of exchange or valuable consideration.”
- Personal Collection: “Personal firearms that a person accumulates for study, comparison, exhibition, or for a hobby (e.g., noncommercial, recreational activities for personal enjoyment, such as hunting, or skeet, target, or competition shooting). The term shall not include any firearm purchased for the purpose of resale or made with the predominant intent to earn a profit.”
- Predominantly earn a profit: “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: Provided, that proof of profit, including the intent to profit, shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism. For the purposes of this definition, a person may have the intent to profit even if the person does not actually obtain pecuniary gain from the sale or disposition of firearms.
What can YOU do now?
The rule making process requires the ATF to give the public an opportunity to comment and the ATF to consider and respond to all of those comments. While the ATF may not want to give weight to our comments, sheer volume gums up the works of government and demands consideration be given to reoccurring themes. This, combined with Congresses recent criticism of the ATF and the courts’ willingness to critically review ATF rules both for violations in the making process and constitutional violations, makes YOUR input valuable.
Commenting is simple and can be done electronically here. Write up your comments, edit out the vulgarities, and submit the same. Have a new thought? Submit another comment. Don’t like computers? Mail the comment to:
Helen Koppe
Mail Stop 6N-518
Office of Regulatory Affairs
Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms and Explosives
99 New York Ave. NE, Washington DC 20226
Attn: ATF 2022R-17
Comments can be submitted now until December 7th, 2023.