RFI to Reply to ATF Rule Proposal Expanding "Dealer" Def'n--Guns Bought But Not Fired

[RDB]

I was hoping someone might know of survey info. re the frequency with which new guns are bought but fired little.

I'm a retired law prof who taught firearms law. I'm in the process of replying to an ATF rule proposal that would expand the definition of a dealer. The proposed rule, if adopted, would appear to make one presumptively a dealer if one offered for sale two firearms that had not been shot or shot little. I'm trying to assemble, for the administrative record (so that the ATF has to respond to the issue), information as to how many people would be improperly classified as presumptive dealers.

I suspect that, if there is published survey data about the number of firearms that have been fired little or not at all, someone on this list would have come across it. If you have, it would really help if you could provide whatever info you have.

Books, published articles or even blog posts by known SME's, recounting their experience, would work. The ATF would just disregard individual stories.

Thanks.

[BillSWPA]

I would be shocked if anyone kept such statistics.

There are threads here of people who bought guns and either changed their minds about the purchase or life circumstances changed after the purchase, so they needed the $ more than the gun.

When I go shopping for a gun, I 100% intend to shoot it. However, when my Dad died in 2007, my Mom transferred most of his gun collection to me. One of the rifles and 3 of the pistols have not been shot since I acquired them. Two of the 3 pistols are several decades old, and I am not 100% sure that one from around the early 20th century is safe to shoot. One was occasionally carried concealed by my Dad, and was ok by 1980’s standards, but is totally outclassed by the guns I carry today.

[cosermann]

So, the definition of a “dealer” is not in the law/code?

Really seems like this should be a matter for Congress rather than an unelected administrative agency, but alas, that’s a huge part of the problem with our system.

[RDB]

So, the definition of a “dealer” is not in the law/code?

Really seems like this should be a matter for Congress rather than an unelected administrative agency, but alas, that’s a huge part of the problem with our system.

There is a definition in the statute. It is this: "(11) The term "dealer" means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term "licensed dealer" means any dealer who is licensed under the provisions of this chapter." That's part of a longer section of U.S. Code one can see here: https://www.law.cornell.edu/uscode/text/18/921

The ATF believes it has the authority to expand the definition (they describe it as "clarify," as I recall), and it recently proposed a rule that would do that. Members of the public can comment through Dec. 7. The reason to comment is to get the government to reveal the data they have, or do not have, as being the basis for their justification of their rule. That becomes relevant when the rule is challenged in a judicial proceeding, as this one inevitably will be.

[RDB]

I would be shocked if anyone kept such statistics.

I agree it's unlikely, but one never knows. There are lots of academics that get paid to do research, and they often can address whatever they want, and opt to do something not apparently useful. I had a former colleague who collected information on pricing of Harley-Davidson Barbie dolls. (At the State's "flagship" university, not a regional one, i.e., one of 50 in the country; in a "finance" department (folks getting paid more than the lawyers).)

Were I not a boomer with no Python coding skills, I might actually be able to do it myself, perhaps. I would endeavor to look at some set of folks listing firearms for resale on a website that has lots of them, with the phrase "new" or "like new" in the description. And one might wish to get creative ("not more than 100 rounds"). One would have to pull the data from some willing site that had that sort of sale info on it.

I strongly suspect that, if anyone has reported information that might be relevant, he or she will be on this site.

Thanks for responding.

P.S. This is not a paid gig for me.

[DamonL]

If I were a collector of valuable firearms, I would become a dealer if I sold a few pieces and that would suck. I would need an FFL. Museums would need an FFL if they sold part of their collection. Sorry to digress from your survey information request. I hope you can find something.

[RDB]

DamonL--
Thanks for the thought. It's actually worse than that. If one is a licensed dealer, one's premises are subject to warrantless inspection by the government. And if the stuff is in one's residence, that can be searched without a warrant. There are lawsuits where courts have validated that.

[farscott]

Based on the pistols that change ownership in the classified section of 1911addicts.com, there are many people who purchase firearms and later dispose of them without ever firing them. I frequently see ads offering firearms for sale that have either not been fired by the owner or have been fired much less than 200 rounds over the ownership period. I do not believe any of those individuals think of themselves as dealers.

I have purchased collectible firearms for display in my home office, have no intention of firing, and have no intention of disposing of them. It is possible I might sell them, especially if my health was worsening and I was worried about keeping them secure, but I dispose any of my firearms via an FFL. As such, I do not see a reason why BATFE would be able to classify my activity as that of a dealer.

[cosermann]

If there's any "hard" data on this, I've not seen it (although that doesn't mean much).

Anecdotally, I wouldn't be a bit surprised if MOST guns purchased by the public are "shot little" (whatever that means). I'd classify hunting rifles that are zeroed and used for a week's hunt each year as "shot little," for example (and there are a lot of those). With respect to defensive guns, how many are purchased, shot a few times, and put in a draw for "emergency" use? I'd venture to say most. I know of my personal acquaintances who own guns, most shoot what I'd classify as "little" from my perspective. Wish it was more. Maybe I'm wrong. Hope I'm wrong.

[okie john]

I was hoping someone might know of survey info. re the frequency with which new guns are bought but fired little.

I'm a retired law prof who taught firearms law. I'm in the process of replying to an ATF rule proposal that would expand the definition of a dealer. The proposed rule, if adopted, would appear to make one presumptively a dealer if one offered for sale two firearms that had not been shot or shot little. I'm trying to assemble, for the administrative record (so that the ATF has to respond to the issue), information as to how many people would be improperly classified as presumptive dealers.

If the government's intent is to use this clarification to prosecute straw purchasers, then they don't need it. Straw purchases are already illegal—the government just needs to enforce the existing laws.

Beyond that, the answer to your question depends on the definitions of “new” and “fired little.”

In the gun industry, “new” means that a gun has come from a manufacturer via importers, jobbers, distributors, dealers, etc., with no prior retail sale. Under current law, these entities must hold an FFL of some sort, so they’re already dealers. ANY gun that one of these entities sells at retail (documented by a Form 4473) is considered used, even if it was never fired and remains in its original packaging. I’m not sure how the industry arrived at this, but I would not be surprised to learn that it came from the ATF itself. With that in mind, it seems like this clarification could unintentionally designate regular citizens as dealers if they sell what the industry and the law consider a used gun.

“Fired little” is subjective. Except for competitive shooters, few gun owners fire more than a hundred rounds in a year. People who buy a handgun to defend themselves typically buy a single 25- or 50-round box of ammunition with the gun. They rarely shoot the entire box before sticking the gun into a closet or dresser drawer and leaving it there for decades. A five-shot revolver that has only been fired five times since the Carter administration is “fired little” but the use has been entirely legitimate and perfectly normal. Long guns are less commonly sold for defense, and they get tend to get fired even less than handguns. This trend is fading somewhat because the internet helps people realize that they need training and practice, but you'll still see constant references to it in the shooting press.

Rifles and shotguns for hunting are much the same. Few hunters shoot more than one 20-round box of ammunition through their hunting rifles in a year. You’ll see constant references to this in the shooting press as well. Shotguns get fired more—but not a lot more—because the bag limits for game taken with them are higher.

Presentation-grade guns, with fine engraving, plating, and inlays, are almost never fired. The same goes for replicas, commemorative guns, and a lot of high-end custom guns. A lot of guns that people inherit or give to one another as gifts don’t get fired much either. That can be due to the gun's age or condition, lack of suitable ammunition, or because the recipient just isn't interested in it. Other people buy guns for research, study, and enjoyment and never intend to actually fire them. It seems like this clarification could designate people as dealers based on normal patterns of use (or non-use) and ownership.

Looking at the number of guns sold each year compared to the amount of ammunition sold in that same year might yield some insight into this.


I would endeavor to look at some set of folks listing firearms for resale on a website that has lots of them, with the phrase "new" or "like new" in the description. And one might wish to get creative ("not more than 100 rounds"). One would have to pull the data from some willing site that had that sort of sale info on it.

How will the ATF determine how much a gun has been fired? My father recently gave me a revolver. I know that it has been fired tens of thousands of times because I shot it that much as a kid. But a few years ago, he sent it back to the factory where it was refinished and the barrel replaced. Now it looks “fired little” despite being older than I am and having been fired much. There is also a cottage industry devoted to reconditioning old guns. Other firms disassemble large numbers of used guns then reassemble the parts into different configurations. Guns that https://www.turnbullrestoration.com/ and https://pre64win.com/ have worked on can easily pass as having been “fired little.” Even shops that lack their level of sophistication can refinish guns well enough to pass as new.

Then there’s the issue of truth. I’ve been around guns and the gun business for over 50 years, and the lies that gun sellers tell are legendary. For instance, my father’s revolver was manufactured in relatively small numbers, so it’s considered uncommon and unaltered specimens regularly sell for several thousand dollars. One that has been refinished is worth 25-50% of that but it would not be hard to find a rube who’d pay full value if I could convince him that it had been “fired little.” As a rule, the more money is at stake, the more outlandish the claims will be.

The issue of profit has come up before and may come up again. Guns occasionally increase in value but this is rare and it usually takes decades. I agree with the idea that dealers work primarily for profit, but this definition could designate people as dealers based on occasional incidental profit due to normal economic forces like inflation. For insight into this, see S.P. Fjestad's The Blue Book of Gun Values, which he published for decades. One of the editions went into some detail comparing cost versus value of guns purchased at various points from the late 19th century to the mid 20th century. I remember reading this when I worked in retail in the early 90s so check those editions first. I'd also check Flayderman's Guide to Antique American Firearms (https://www.amazon.com/Flaydermans-Antique-American-Firearms-Values/dp/089689455X).

Again, the government has any number of potentially very useful gun laws on the books. How and whether they choose to enforce them is another issue.


Okie John

[RDB]

Based on the pistols that change ownership in the classified section of 1911addicts.com, there are many people who purchase firearms and later dispose of them without ever firing them. I frequently see ads offering firearms for sale that have either not been fired by the owner or have been fired much less than 200 rounds over the ownership period. I do not believe any of those individuals think of themselves as dealers.

Thanks for the observation. That had been my casual observation as well.

To put this in context: Federal law currently does not allow the Federal gvt. to create a registry of ordinary firearms. The term "registry" is not defined in US code. The current administration has been taking a number of steps that appear to be designed to get as close as possible to that--as close as possible to creating a registry (an undefined term) without violating the law. It's doing that by issuing rules that attempt to clarify the Federal statutes in a way that will assist in creating the equivalent of a registry. And it is doing that by, it has been reported, bulk copying of 4473s. And it, of course, changed the rules that previously allowed dealers to destroy 4473s after 20 years--they now have to be kept forever.

A registry does not work if there are sales that are not between dealers. So, this particular rule is aimed at expanding those who are dealers (and thus should be maintaining records of the sales).

The rule creates presumptions someone is a dealer. Another component is one is more likely a dealer if one sells multiple units of the same model. I strongly suspect that many people on this list have multiple copies of the pistol they most commonly carry. If you carry a G19, I suspect you have two (well, at least two). If you decide to change to a P365, you may then sell two G19s and get two P365s.

Or, if you were G19, then went to P320 then went back to G19, there may well have been two sets of sales of two of the same model.

I won't get into the details of the rule. This is just one component of what would presumptively make one a dealer. The basic point is that the rule treats as something associated with dealing in firearms something done by lots of folks you would think of as not being dealers, like: bought a back-up G19 that one never used and then resold it when one changed platform; bought two G19s and later sold two of the same model when one changed platform.

I am simply endeavoring to collect evidence of the type the ATF will need to address, when they adopt their final rule, which is inconsistent with the views of user practices that appear to underlie their proposed rule.

Again, thanks for your thoughts!

[RDB]

Thanks for your thoughts, okie john!

The current administration has and is taking a number of steps to something that is as much like a registry of firearms as they can without violating Federal statutes that prohibit creation of a registry. They've reportedly continued some bulk collection of 4473s. Rules were changed to prohibit destruction of 4473s (they formerly could be destroyed after 20 years).

A registry requires there not be sales that are not documented. This rule proposal expands the definition of dealer so as to decrease the number of firearms that are sold without permanent records being maintained.


In the gun industry, “new” means that a gun has come from a manufacturer via importers, jobbers, distributors, dealers, etc., with no prior retail sale. Under current law, these entities must hold an FFL of some sort, so they’re already dealers. ANY gun that one of these entities sells at retail (documented by a Form 4473) is considered used, even if it was never fired and remains in its original packaging. I’m not sure how the industry arrived at this,

This strikes me as a common concept in connection with sales of goods generally. [I have taught contracts to law students for two decades.] Manufacturers' warranties often only run to the first purchaser. It would be common to describe one that was resold as "used."

You wrote:

few gun owners fire more than a hundred rounds in a year. People who buy a handgun to defend themselves typically buy a single 25- or 50-round box of ammunition with the gun. They rarely shoot the entire box before sticking the gun into a closet or dresser drawer and leaving it there for decades.

That is precisely an illustration of the type thing that I am hoping to find has appeared in print somewhere--in a book, in a pamphlet a well-respected trainer hands out in training, on a website that is well-respected (shooting illustrated might be an example). The point is the following--the proposed rule is not entirely clear (unsurprising), but one reading is:

If someone like the folks you are referencing sells his or her weapon by making multiple posts on various websites, that person may be presumptively a dealer in firearms. Yes, one firearm may be enough.

There is more nuance to the rule than I've identified here. I've perhaps gotten too much into the weeds already. But this particular part of the rule (concerning presumptions) would only apply in non-criminal proceedings (or in sentencing following a criminal conviction). The ATF did not, as far as I can tell, specify what types of non-criminal proceedings they have in mind. One possibility is civil proceedings following erroneously failed background checks. Or perhaps they are contemplating fining people (a fine can be imposed in a non-criminal proceeding).

I suspect they have elected not to propose this presumption apply in criminal proceedings, because that would be unconstitutional. A presumption like that was the basis under which in the 1960s the first version of the NFA was held to be unconstitutional.

Again, thanks for your thoughts!

[RDB]

To amplify, if I may, Okie John wrote:




Except for competitive shooters, few gun owners fire more than a hundred rounds in a year. People who buy a handgun to defend themselves typically buy a single 25- or 50-round box of ammunition with the gun. They rarely shoot the entire box before sticking the gun into a closet or dresser drawer and leaving it there for decades.



Having any source I could cite for that would be quite helpful (if one does not want a registry). Lots of trainers hand-out pamphlets that have miscellaneous observations in them. I took a look at the one I received from Tom Givens some years ago (Combative Pistol Course Student Workbook), which has lots of background information but not this precise statement. Any publicly available instructional materials, or even a blog post by a widely-recognized trainer on his website, would be helpful--much more helpful than may be obvious.

Thanks.

[HCM]

To amplify, if I may, Okie John wrote:



Having any source I could cite for that would be quite helpful (if one does not want a registry). Lots of trainers hand-out pamphlets that have miscellaneous observations in them. I took a look at the one I received from Tom Givens some years ago (Combative Pistol Course Student Workbook), which has lots of background information but not this precise statement. Any publicly available instructional materials, or even a blog post by a widely-recognized trainer on his website, would be helpful--much more helpful than may be obvious.

Thanks.

Okie John wrote most of what I thought of when I read your OP.

The information you’re talking about is irrelevant to training materials on shooting - so there would be no logical reason to include it.

While anecdotal observations about most guns sold either never being fired or being fired once are common among actual licensed dealers and high volume shooters, they are not data.

The only source of actual data or analysis on the topic I could think of would be market research for gun companies but such data would likely be proprietary.

[RDB]

HCM: Thanks for your thoughts.


The information you’re talking about is irrelevant to training materials on shooting - so there would be no logical reason to include it.

It seems to me at least possible that some of these materials include a brief excerpt that is designed to reinforce the notion that one should train. In the course of that, someone might write something like:

It's easy to go to a training class and think you're good-to-go. Many of the people who come to my intro classes bought a gun and a box of ammunition and kept next to their beds, unfired, for years. ....

I am reasonably confident I've heard something like that said by the trainers whose classes I've attended.

Even that would help. Just those two sentences.

The way the process works, in terms of commenting on a proposed regulation, my saying it, or my citing you saying it on this forum, won't work. But an except from a training manual, or perhaps the intro to a book on the subject of, "Carrying a firearm for Self-defense 101," would be really helpful. (I have looked, without success, in Tom Givens' Fighting Smarter.) I suspect many of the folks who authored books like that will visit this site from time to time. And those who have read them surely will.

And, to amplify: Things a lawyer might cite in this context could include either survey information or expert observations. So, a survey, even a casual one from a reputable source, would work. It could be some casual observation from, let's say, a post from Cabela's that says, to make up a number, 15% of the guns they take in trade appear essentially unused.

So too would be the observation of an expert. So, if the folks whose names immediately come to mind had written something like that anywhere, I could cite that. It need not be data in the sense that an empiricist would use the term.

By way of example, another issue relevant to the rules is the frequency with which folks have two firearms of the same type. So I spent some time hunting down a cite to Clint Smith talking about "two is one." (Unfortunately that phrase is not helpful, because it is not clearly about two identical items.)

In any case, thanks for taking the time to comment.

[Hambo]

I was hoping someone might know of survey info. re the frequency with which new guns are bought but fired little.

I'm a retired law prof who taught firearms law. I'm in the process of replying to an ATF rule proposal that would expand the definition of a dealer.

Is this what you're talking about?


Rather than establishing a minimum threshold number of firearms purchased or sold, this rule proposes to clarify that, absent reliable evidence to the contrary, 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 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

https://www.regulations.gov/document/ATF-2023-0002-0001

[RDB]

Hambo--

Thanks for your comment.

That is the relevant section. Let me delete the irrelevant material from the proposed language, so that it reads.

"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—
...
(iv) Repetitively ... offers for sale firearms—
...
(B) That are new, or like new in their original packaging; or
(C) Of the same or similar kind

So, repeatedly offering for sale firearms that are "new, or like new" makes one presumptively a dealer. Making multiple postings because no one wants to buy the duplicate HKPro-logoed P30s in olive drab, that you regret buying and now cannot get your money back for. You don't have to sell multiple times; you only have to offer.

Or you've bought a number of pairs of firearms, and you keep trying to unload one of the pairs, but no one will buy them at a price you want. You've repetitively offered identical items for sale (and new, to boot).

Or you have to make multiple offers because internet venues that allow postings concerning interest in firearms that private parties have for sale are diminishing. So you are making multiple offers posting at VFW locations or whatever people do. I suppose that, as a formal matter, some guy walking around a gun show seeking to sell a like-new rifle is making repetitive offers and thus presumptively a dealer.

I'm sure this approach is convenient for ATF, because they don't have to prove any sales.

Again, thanks for the comment.

[Hambo]

Hambo--

Thanks for your comment.

That is the relevant section. Let me delete the irrelevant material from the proposed language, so that it reads.

"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—
...
(iv) Repetitively ... offers for sale firearms—
...
(B) That are new, or like new in their original packaging; or
(C) Of the same or similar kind

So, repeatedly offering for sale firearms that are "new, or like new" makes one presumptively a dealer. Making multiple postings because no one wants to buy the duplicate HKPro-logoed P30s in olive drab, that you regret buying and now cannot get your money back for. You don't have to sell multiple times; you only have to offer.

Or you've bought a number of pairs of firearms, and you keep trying to unload one of the pairs, but no one will buy them at a price you want. You've repetitively offered identical items for sale (and new, to boot).

Or you have to make multiple offers because internet venues that allow postings concerning interest in firearms that private parties have for sale are diminishing. So you are making multiple offers posting at VFW locations or whatever people do. I suppose that, as a formal matter, some guy walking around a gun show seeking to sell a like-new rifle is making repetitive offers and thus presumptively a dealer.

I'm sure this approach is convenient for ATF, because they don't have to prove any sales.

Again, thanks for the comment.

If you buy more than one handgun today, ATF and local LE get a copy of the multiple purchase form. Nobody cares if you buy your two blue label Glocks for the year today, of if you're the guy who buys every new gun that hits the cover of G&A. If you're buying multiples of the same pistol (popular in the hood) repetitively, you're going to attract attention.

Not that I want to argue with a law professor, but I take "repeatedly offers for sale" not to mean the same pair of CAS guns you can't dump and advertise everywhere, but that the buyer is repeatedly trying to sell recently purchased guns. My guess is that this is about 1) multiple purchasers who are reselling to prohibited persons and 2) people who buy/sell/trade enough that they really should have an FFL.

Good luck in your quest.

[RDB]

Thanks for the comment, Hambo.

I did not amplify on the precise context. The ATF has proposed this rule. They have asked for comments.

One of the things people do in comments is point out to the government (here the ATF) that what they have written may not capture what they intend. Then the government can, before finalizing the rule, change it so that it literally says what they mean, or they can leave it as is, indicating that they mean what it literally says. So, perhaps we will hear from the ATF what they mean (though they will get thousands of comments on this proposal, so it's going to be a long time to get a reply.)

This may sound jaded, coming from a lawyer, but I suppose, ultimately, in the firearms law context, what a rule means, perhaps 60% of the time, is what a hoplophobic judge wants it to mean (and 40% of the time the non-hoplophobe). I regret to report my experience, in various areas of law, is what a prior opinion, or a statute or an administrative rule means in a judicial proceeding is highly related to what the judge wants it to mean. There is a school of thought called "legal realism" that, many decades ago, essentially reached that conclusion as to the nature of the judicial process, generally.

Thanks again for the comment.

[okie john]

Mas is probably the guy you need for this.

Outpost75 might also be able to help.

John and Vicki Farnam of https://defense-training.com/ would also be good sources. So would Clint and Heidi Smith at https://thunderranchinc.com/home, and Greg Hamilton at https://www.insightstraining.com/.

I'll look around for more.


Okie John

[DMF13]

. . . .hoplophobic . . . If you want the ATF to listen I hope you don't use terms like that. Hoplophobe is not a real word, or recognized phobia, and is not in the DSM-V. It's nonsense.

[ST911]

had not been shot or shot little.

Is that quantified? That's an awful lot of guns and owners, if not most of them.

[DDTSGM]

This is something that concerns me.

I've got about ten AR's in the safe that I've put together, basically just to have something to do. Most of them have been shot no more than to function check, zero with a Romeo RDS, fiddle with buffer weights until I like them, and then shoot for group with, usually an old Leupold 3x9 mounted.

I've pretty much run out of safe space. I knew from the git go that I'd never get what I had in them back out of them but I can't see getting an additional sharp stick in the eye by consigning them to the LGS. I've been hesitant to get a table at a gun show because 1) the receivers would all lead back to me if one were used in a crime; 2) I'm concerned that a table full of pretty new looking AR's would look like I'm in the business of manufacturing and selling even though it's just a past time to keep me occupied and not for profit.

This thread has ratcheted up my concerns.

[RDB]

Is that quantified? That's an awful lot of guns and owners, if not most of them.

The proposed regulation says "new or like new." The term is not defined.

A side note: If a regulator wishes to suppress some activity, one way to do that is to issue a rule that is vague.

[RDB]

If you want the ATF to listen I hope you don't use terms like that. Hoplophobe is not a real word, or recognized phobia, and is not in the DSM-V. It's nonsense.


Although my views on legal realism are not likely to be relevant to what I write, I note, Judge James C. Ho, a Federal appellate judge, wrote in a judicial opinion, "Constitutional rights must not give way to hoplophobia." Mance v. Sessions, 896 F.3d 390, 405 (5th Cir. 2018). So, I'm not entirely in bad company.

[idahojess]

The proposed regulation says "new or like new." The term is not defined.

A side note: If a regulator wishes to suppress some activity, one way to do that is to issue a rule that is vague.

RDB, Thanks for bringing this proposed rule to our attention and for trying to determine a reasoned way to respond to it before it is finalized.

The full text of C is notable, too: "(C) 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);"

The "repetitively" and "like new" and "of a same or similar kind and type" seem to be pretty vague to me. It doesn't seem like a stretch that people who have a collection of backup glock 19s or Colt Pythons or something similar could fall into this.

What does "repetitively" mean? More than once a week? More than once a year?

I, and I bet most owners, always keep my "original" packaging, so the items can be consigned or traded if I no longer want a gun, too.

(For the past 10 years or so, because I live in Washington, I consign or trade the items I don't want/need anymore to my favorite dealer. But I could see this proposed rule impacting people in states that don't have the same transfer rules.)

Perhaps one straight-up argument would be that without a clear definition of "repetitive," this proposed language runs afoul of the statute cited in the proposed rule comment:


However, the BSCA definition does 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.” 18 U.S.C. 921(a)(21)(C).

[RDB]

RDB, Thanks for bringing this proposed rule to our attention and for trying to determine a reasoned way to respond to it before it is finalized.

I thank you for taking the time to forward your thoughts. I agree the proposed rule is unclear.

[HCM]

HCM: Thanks for your thoughts.



It seems to me at least possible that some of these materials include a brief excerpt that is designed to reinforce the notion that one should train. In the course of that, someone might write something like:

It's easy to go to a training class and think you're good-to-go. Many of the people who come to my intro classes bought a gun and a box of ammunition and kept next to their beds, unfired, for years. ....

I am reasonably confident I've heard something like that said by the trainers whose classes I've attended.

Even that would help. Just those two sentences.

The way the process works, in terms of commenting on a proposed regulation, my saying it, or my citing you saying it on this forum, won't work. But an except from a training manual, or perhaps the intro to a book on the subject of, "Carrying a firearm for Self-defense 101," would be really helpful. (I have looked, without success, in Tom Givens' Fighting Smarter.) I suspect many of the folks who authored books like that will visit this site from time to time. And those who have read them surely will.

And, to amplify: Things a lawyer might cite in this context could include either survey information or expert observations. So, a survey, even a casual one from a reputable source, would work. It could be some casual observation from, let's say, a post from Cabela's that says, to make up a number, 15% of the guns they take in trade appear essentially unused.

So too would be the observation of an expert. So, if the folks whose names immediately come to mind had written something like that anywhere, I could cite that. It need not be data in the sense that an empiricist would use the term.

By way of example, another issue relevant to the rules is the frequency with which folks have two firearms of the same type. So I spent some time hunting down a cite to Clint Smith talking about "two is one." (Unfortunately that phrase is not helpful, because it is not clearly about two identical items.)

In any case, thanks for taking the time to comment.

The context of Clint Smith’s “2 is 1 quote” involves carrying two guns (a primary and a back up) on one’s person at the same time. This practice was more common decades ago when revolvers and limited capacity (7-8 round) autos dominated. The practice is less common now outside professional gun toters for a variety of reasons.

However, the idea that one should have 2 or 3 copies of “working” (duty/ carry) guns in case one is broken, stolen or taken into evidence has been discussed here on P-F multiple times. As has the idea of having two identical guns, one lightly vetted and used for carry / duty etc and one dedicated as ” high round count” or “sacrificial” training gun to minimize wear and tear on the primary training gun.

The founder of P-F, the late Todd Louis Green, discussed the latter concept here and likely also discussed it on his blog which preceded this forum, pistol-Training.com.

While not as well known among the “unwashed masses” as Clint Smith, Todd was an attorney (former AUSA), firearms industry professional who worked for Beretta and SIG, and a full time Instructor who clearly qualifies as an “expert.”

I’m not sure how relevant any of that would be to the proposed rule as those who follow such practices (those dedicated to shooting /training) are the opposite end of the spectrum from those whose hobby is collecting / swapping /trading guns they rarely if ever shoot.

[OlongJohnson]

If you want the ATF to listen I hope you don't use terms like that. Hoplophobe is not a real word, or recognized phobia, and is not in the DSM-V. It's nonsense.

The DSM contains a lot of crap that is nonsense, from what I've heard and read. (I'm not trained in that area at all, so totally out of my lane making those comments.)

On the other hand, the existence of hoplophobia is not nonsense. I have personally encountered multiple people who are clearly irrationally fearful of weapons in general and firearms in particular. And have heard and read about many, many more.

I will grant that "hoplophobia" and "hoplophobe" are thrown around on gun forums in ways that would be fair to deem "nonsense," but that doesn't mean such a thing doesn't exist.

[HCM]

This is something that concerns me.

I've got about ten AR's in the safe that I've put together, basically just to have something to do. Most of them have been shot no more than to function check, zero with a Romeo RDS, fiddle with buffer weights until I like them, and then shoot for group with, usually an old Leupold 3x9 mounted.

I've pretty much run out of safe space. I knew from the git go that I'd never get what I had in them back out of them but I can't see getting an additional sharp stick in the eye by consigning them to the LGS. I've been hesitant to get a table at a gun show because 1) the receivers would all lead back to me if one were used in a crime; 2) I'm concerned that a table full of pretty new looking AR's would look like I'm in the business of manufacturing and selling even though it's just a past time to keep me occupied and not for profit.

This thread has ratcheted up my concerns.

Selling them on consignment via an FFL would address most of your concerns.

[DMF13]

Although my views on legal realism are not likely to be relevant to what I write, I note, Judge James C. Ho, a Federal appellate judge, wrote in a judicial opinion, "Constitutional rights must not give way to hoplophobia." Mance v. Sessions, 896 F.3d 390, 405 (5th Cir. 2018). So, I'm not entirely in bad company.

Just because a federal judge, or Jeff Cooper, used a term doesn't mean its legitimate. Its a BS term, made up to sound "smart," when talking about a fear of firearms. You might as well use "Klingon" words, as it has the same legitimacy. Just say "fear of firearms," and skip the nonsense.

[RDB]

Just because a federal judge, or Jeff Cooper, used a term doesn't mean its legitimate. Its a BS term, made up to sound "smart," when talking about a fear of firearms. You might as well use "Klingon" words, as it has the same legitimacy. Just say "fear of firearms," and skip the nonsense.

All words are “made-up.” Words are not delivered by a divine authority. Google informs me Merriam Webster added 690 words in September 2023.

But significantly, it would appear that there is a bias in those that are recognized in some quarters. The words ending in "phobe" that immediately make their way into lots of dictionaries have a particular bent. This style of capture of English usage is, of course, designed to limit all conversation about the relevant topic. I’m not inclined to submit to that.

Additionally, there would seem to be an inherent inconsistency in your view. You have suggested one should defer to the authors of the DSM, but not to a Federal appellate court judge (who graduated from Stanford and the University of Chicago, if one cares about such things). Of course, it is not only that federal judge. The word (or a word with the same root) has appeared in multiple opinions of justices (or perhaps they are called judges in that State) of the Wisconsin Supreme Court. It’s in the Free Dictionary (https://medical-dictionary.thefreedictionary.com/Hoplophobe). It’s appeared in Ammoland, the Daily Star, the Jacksonville Journal-Courier Online (Illinois), an NRA press release, to name a few.

Lastly, it is not helpful to use a phrase containing six words “judges with irrational fears of firearms” when two will do (hoplophobic judges). If you are aware of another adjective--not a phrase, but a single word--that conveys the notion of a fear of firearms and also has a pejorative connotation, please post it. I write often about firearms law. You can see my c.v. here: https://law.missouri.edu/person/royce-de-r-barondes/. So, I suspect that if there is a better word for this purpose, I will use it at some point in time in the future.

Thanks.

[JHC]

Interesting stuff. If you could effectively poll the crowd at The Outdoor Trader you’d find a ton of folks that are constantly buying and trading and almost never (as far as I could ever tell) shoot them.

Deleted link as I initially forgot that violated forum rules here.

It often occurred to me that it seemed a side hustle for many of them.

[TGS]

All words are “made-up.” Words are not delivered by a divine authority. Google informs me Merriam Webster added 690 words in September 2023.

But significantly, it would appear that there is a bias in those that are recognized in some quarters. The words ending in "phobe" that immediately make their way into lots of dictionaries have a particular bent. This style of capture of English usage is, of course, designed to limit all conversation about the relevant topic. I’m not inclined to submit to that.

Additionally, there would seem to be an inherent inconsistency in your view. You have suggested one should defer to the authors of the DSM, but not to a Federal appellate court judge (who graduated from Stanford and the University of Chicago, if one cares about such things). Of course, it is not only that federal judge. The word (or a word with the same root) has appeared in multiple opinions of justices (or perhaps they are called judges in that State) of the Wisconsin Supreme Court. It’s in the Free Dictionary (https://medical-dictionary.thefreedictionary.com/Hoplophobe). It’s appeared in Ammoland, the Daily Star, the Jacksonville Journal-Courier Online (Illinois), an NRA press release, to name a few.

Lastly, it is not helpful to use a phrase containing six words “judges with irrational fears of firearms” when two will do (hoplophobic judges). If you are aware of another adjective--not a phrase, but a single word--that conveys the notion of a fear of firearms and also has a pejorative connotation, please post it. I write often about firearms law. You can see my c.v. here: https://law.missouri.edu/person/royce-de-r-barondes/. So, I suspect that if there is a better word for this purpose, I will use it at some point in time in the future.

Thanks.

Have you worked within an organizational culture? In particular, a government organization that goes by style manuals and whatnot...(Note: this is a question for you to reflect on internally for the purpose of learning, not an invitation to hear your meanderings. I really don't care.)

I would read DMF13's comments as insight on how your language is going to be interpreted within a certain organization. Reading between the lines over the years and using some deductive reasoning, I'd take his comments about perceptions of your language to the AFT with a little bit of weight.

There's 6 sides to a conversation, after all.

I would not read his comments as an invitation to debate theory. I don't think he has a personal interest in such, and is simply trying to do a "wink wink, nudge nudge", while tapping his foot on the floor, to get your attention about how your language is going to be perceived, and whether anyone is going to listen to your message vs immediately ignoring it. I've seen this myself in my own agency's organizational culture, so I can appreciate it from "this" side of the table where I've sat on panels evaluating proposals, commentary, etc from non-governmental organizations and..."impassioned"...persons.

Tl;Dr: in your mind, you think you're crafty and clever. Save that shit for the classroom or courtroom if you actually practice. To the bureaucratic panel assigned to review comments, you're going to come off as a douche and they're going to ignore everything you write.

And just to head off what I feel is coming: I don't care about how clever you are, these comments are made solely for you to reflect on and whether you think it's more important to stroke your ego in writing or do something that is less flashy and more effective. Take it or leave it, you don't need to convince me of anything.

[HCM]

Interesting stuff. If you could effectively poll the crowd at The Outdoor Trader you’d find a ton of folks that are constantly buying and trading and almost never (as far as I could ever tell) shoot them.

Deleted link as I initially forgot that violated forum rules here.

It often occurred to me that it seemed a side hustle for many of them.

They claim it’s a “side hustle” but most are not actually making money. They may make a little bit on one transaction. But overall they’re just floating their hobby.

It’s their hobby, new gun = dopamine hit.

[DDTSGM]

Selling them on consignment via an FFL would address most of your concerns.

Agreed, I mentioned that in my post. As I noted, already resigned to taking some loss, not wanting to exacerbate that by also having to pay the LGS, one way or another.

[RDB]

TGS

I thank you for your observations.

The current stage of the proceedings involves assuring that the agency record contains citations to relevant information that illuminates the impact the proposed rule would have, were it adopted. Whatever I write will not influence the outcome of their decision-making. But it may influence the outcome of subsequent judicial proceedings. Whether it does, as to this issue, will depend on the relevant evidence that folks on this site can identify and allow me to forward.

That would be a citation to a page in a book or an article (could be internet or in print) or, less desirable, or a link to a video of a youtube video of a widely respected expert. A citation to an expert report filed in litigation also would work. I did not mention that before, because it seems less likely that would be something someone on this list would have at easy access. An embedded post on a site like this won't work, even if I were persuaded by it. One supposes that, collectively, this forum will have access to the intro of, one supposes, every book by every well-known trainer.


Save that shit for the classroom or courtroom if you actually practice.

I'm not sure why there is an interest in whether I've ever practiced law or whether I've ever worked in a particular type of organization. I've posted a link to my c.v. If you care, you can see who I am, you can google the law firm I used to work at, some years ago, and you can decide for yourself.

If you would like to spend two minutes scanning the intros to training books in your library, or any pamphlet handed out in training you've attended, to see if they reference people frequently getting firearms and never shooting them, that could be of great assistance. I expect that it would be difficult to include material received after Sun., 12/3, in view of the ATF's deadline later in the week and my other commitments. I likely would need to get actual copies of the entire source, if it is a book, in my hand, before submitting a comment. So, if it's a book, I will have to get Amazon to deliver it to me (early in the week). If my background will dissuade folks from providing assistance that they otherwise might, I will regret that.

I believe a healthy share of the folks on this forum would find that forwarding to the ATF information of the type that I am seeking would ultimately be aligned with their preferences. I thank you, and others on this list, for taking the time to consider my request.

Thanks.

[jh9]

Selling them on consignment via an FFL would address most of your concerns.

How does using an FFL as a transfer middleman impact the ATF determining if someone is "in the business"?

I understand that using an FFL means the buyer now has to fill out a 4473 which is their goal. What I don't understand is how that means someone selling 10 AR-15s is or isn't "engaged in the business" (or whatever their term is) depending on how those transfers took place.

[HCM]

How does using an FFL as a transfer middleman impact the ATF determining if someone is "in the business"?

I understand that using an FFL means the buyer now has to fill out a 4473 which is their goal. What I don't understand is how that means someone selling 10 AR-15s is or isn't "engaged in the business" (or whatever their term is) depending on how those transfers took place.

Building a bunch of near identical guns as a hobby and disposing of them doesn’t require a dealers license - doing it for profit does. Engaged in business normally = profit.

The argument is 1) if I was “engaged in business” why would I need another dealer to sell my guns; 2) the x% consignment fee going to the dealer documents prices and helps show the sales are not profitable; 3) most actual “unlicensed dealers” specialize in flipping cheap guns to prohibited persons who either can’t pass a NICS check or don’t have a straw purchaser at 2x or more market price. Selling guns on consignment (thus subject to NICS checks) deflects that argument.

[Mas]

Mas is probably the guy you need for this.

Outpost75 might also be able to help.

John and Vicki Farnam of https://defense-training.com/ would also be good sources. So would Clint and Heidi Smith at https://thunderranchinc.com/home, and Greg Hamilton at https://www.insightstraining.com/.

I'll look around for more.


Okie John

John, it saddens me to disappoint, but I don't know of any empirical database on that.

[joshs]

I would read DMF13's comments as insight on how your language is going to be interpreted within a certain organization. Reading between the lines over the years and using some deductive reasoning, I'd take his comments about perceptions of your language to the AFT with a little bit of weight.

That's not how this process really works, though. ATF has already been directed to move "as close to universal background checks as possible within existing law." (https://www.whitehouse.gov/briefing-room/statements-releases/2023/08/31/fact-sheet-biden-harris-administration-takes-another-life-saving-step-to-keep-guns-out-of-dangerous-hands/#:~:text=In%20March%2C%20President%20Biden%20signe d,as%20possible%20within%20existing%20law.) No matter how polite comment writers are, their comments are going to be ignored. (Beyond the technical responses that are required as part of the final rule process.) Writing something that is interesting for a clerk to read and preserves all arguments as part of the administrative record is really all that is important.

For example, if I were worried about ATF's feelings, I probably wouldn't start a comment reminding them that the current "engaged in the business" language only exists because of the agency's own bad behavior (including getting an NRA member shot in the head as the result of a raid that had very questionable probable cause), but I maybe did do that.

[joshs]

How does using an FFL as a transfer middleman impact the ATF determining if someone is "in the business"?

I understand that using an FFL means the buyer now has to fill out a 4473 which is their goal. What I don't understand is how that means someone selling 10 AR-15s is or isn't "engaged in the business" (or whatever their term is) depending on how those transfers took place.

It doesn't. If you're "engaged in the business," then transferring through an FFL doesn't protect you from being charged for engaging in the business without a license in violation of 923(a). That's why using the "engaged in the business" definition as a way to implement "universal" background checks isn't workable.

[DDTSGM]

It doesn't. If you're "engaged in the business," then transferring through an FFL doesn't protect you from being charged for engaging in the business without a license in violation of 923(a). That's why using the "engaged in the business" definition as a way to implement "universal" background checks isn't workable.

To your knowledge has anyone who has been transferring through an FFL been charged with engaging in the business without a license?

[littlejerry]

Building a bunch of near identical guns as a hobby and disposing of them doesn’t require a dealers license - doing it for profit does. Engaged in business normally = profit.

The argument is 1) if I was “engaged in business” why would I need another dealer to sell my guns; 2) the x% consignment fee going to the dealer documents prices and helps show the sales are not profitable; 3) most actual “unlicensed dealers” specialize in flipping cheap guns to prohibited persons who either can’t pass a NICS check or don’t have a straw purchaser at 2x or more market price. Selling guns on consignment (thus subject to NICS checks) deflects that argument.

So what is the crime here? Selling an asset at a higher value than originally purchased? Or selling to prohibited persons?

Maybe we should just ban selling to prohibited persons.

[HCM]

So what is the crime here? Selling an asset at a higher value than originally purchased? Or selling to prohibited persons?

Maybe we should just ban selling to prohibited persons.

Two separate issues.

You can argue and philosophize all you want.

Current law requires a dealers and/or manufacturers FFL to “engage in the business” of selling or manufacturing firearms.

Assembling guns from parts to resell for profit = manufacturing.

You may or may not recall the ATF going after unlicensed gun flippers at gun shows in the 80s. Which then lead to a boom in “kitchen table” FFLs and ATF targeting those “kitchen table” FFLs over things like record keeping and zoning violations.

With all the “real” gun related crime the administration re-tasking ATF’s limited resources towards de-minimus “unlicensed dealer” nonsense borders on waste fraud and abuse.

That said, the post about building multiple identical AR’s and wanting to sell them (presumably to build more) is suspect but I was trying to give the guy the benefit of the doubt.

[okie john]

John, it saddens me to disappoint, but I don't know of any empirical database on that.

Thanks for the speedy response. I was thinking that you might have run across trends described below while researching your books.


That is precisely an illustration of the type thing that I am hoping to find has appeared in print somewhere--in a book, in a pamphlet a well-respected trainer hands out in training, on a website that is well-respected (shooting illustrated might be an example).

Thanks again,


Okie John

[DMF13]

All words are “made-up.” Words are not delivered by a divine authority. Google informs me Merriam Webster added 690 words in September 2023.Yet, in the many years since Jeff Cooper allegedly coined that term, it hasn't made it into Webster's, the Oxford English Dictionary, or any other mainstream dictionary, and isn't in the DSM-V.


But significantly, it would appear that there is a bias in those that are recognized in some quarters. The words ending in "phobe" that immediately make their way into lots of dictionaries have a particular bent. This style of capture of English usage is, of course, designed to limit all conversation about the relevant topic. I’m not inclined to submit to that.Neat conspiracy theory you have there. :rolleyes:


Additionally, there would seem to be an inherent inconsistency in your view. You have suggested one should defer to the authors of the DSM, but not to a Federal appellate court judge (who graduated from Stanford and the University of Chicago, if one cares about such things). Of course, it is not only that federal judge. The word (or a word with the same root) has appeared in multiple opinions of justices (or perhaps they are called judges in that State) of the Wisconsin Supreme Court. It’s in the Free Dictionary (https://medical-dictionary.thefreedictionary.com/Hoplophobe). It’s appeared in Ammoland, the Daily Star, the Jacksonville Journal-Courier Online (Illinois), an NRA press release, to name a few.There is nothing inconsistent in my view. The psychiatrists, and psychologists, who put together the DSM, are experts in the field. A guy with a BA in Public Policy (regardless of what school granted it), a JD (again, regardless of what school granted it), experience as a government attorney working on civil rights cases, and now serving as a federal Circuit Court judge, is NOT an expert in the field of psychiatry/psychology, in general, or phobias specifically. So, yes on the subject of recognition of phobias, and naming of phobias, I will recognize the expertise of those who work on the DSM, and I will discount Judge Ho, who has absolutely no expertise in the matter, and the same is true of the other judges you have referenced. Unless of course, you are also claiming those judges are either MDs, who are board certified psychiatrists, or are Clinical Psychologists, and they have extensive practical experience in analysis and treatment of phobias. If that's the case, please free to provide the information on those judges, and the proof of their education, and experience, in the area of psychiatry/psychology, and specifically as it relates to phobias.

In what world do you live in, where you think someone having a BA in an unrelated field, a JD, and no practical experience in the field, is more qualified than those who actually have education/experience in the field in question? By your logic Justice Sonia Sotamayor, or Chief John Justice Roberts, is just as qualified to offer opinions on the how to shoot a firearm well, as Max Michel, Ben Stoeger, or Nils Jonasson, by virtue of their degrees from prestigious educational institutions, and their status as Justices of the US Supreme Court.

Let me be very clear about my consistency on these matters. I have always, and will always, give much more weight to opinions of people who have actual education, and experience, in a particular subject, when there is a question about that specific subject, than the opinions of those who don't have actual education and experience, in that subject. Having expertise in the field of law, does NOT make someone an expert on other fields. That accounts for why I've taken a shooting class from Ben Stoeger, but not John Roberts.


Lastly, it is not helpful to use a phrase containing six words “judges with irrational fears of firearms” when two will do (hoplophobic judges). If you are aware of another adjective--not a phrase, but a single word--that conveys the notion of a fear of firearms and also has a pejorative connotation, please post it. I write often about firearms law. You can see my c.v. here: https://law.missouri.edu/person/royce-de-r-barondes/. So, I suspect that if there is a better word for this purpose, I will use it at some point in time in the future.Here, we are actually back to the real reason I posted in the first place. Economy of words, is NOT synonymous with effective communication. Judge Ho was writing a legal opinion, that would be relevant to the judges, and attorneys, who work in his Circuit. He chose to use a word that is not recognized by anyone, other than those who strangely follow Jeff Cooper's writings as if it were some sort of gospel, or those gun enthusiasts that have been exposed to the cult of Cooper. I have been a gun enthusiast almost my entire life, but I don't freakishly pore over the writings of Cooper, and therefore only heard the word "hoplophobe" a few years ago, and how no idea the meaning or origin, when I first heard it. Therefore, it is quite ridiculous to think other judges, and attorneys, who aren't Cooper fanatics, or closely associated with those who are, will know that term. It is also quite likely that if they research the term, they not find it legitimate. The same would be true of the people you might hope to influence at ATF, and my reason for pointing it out.

Effective communication is better accomplished by using words the intended audience is likely to know, and even if they don't, are likely to find legitimate, when they attempt to learn the meaning of the words. I doubt the majority of Judge Ho's audience was familiar with the term "hoplophobic," or felt it was legitimate when they did attempt to learn the meaning. Therefore, Judge Ho wasn't communicating effectively with his audience, and would have been better served using the phrase, "irrational fear of firearms."

You do you, but I doubt your attempts at being clever, and using pejoratives, will effectively communicate with your audience.

Good luck.

[RDB]

Thanks for the speedy response. I was thinking that you might have run across trends described below while researching your books.



Thanks again,


Okie John

John--

Please allow me to express my sincere thanks for your efforts on this. I was sure that someone on this forum would have contacts with people who have the widest access to info, if anyone does. I will plan on posting the final letter after I finish it (unless that violates a forum rule that has not come to my attention), in case it is of interest.

I have found a Shooting Illustrated article, Tamara Keel, Why You Should Keep a Third Carry Gun, ShootingIllustrated.com (Oct. 25, 2020), so I can provide at least some authority for having multiple carry guns.

Regards,

[RDB]

John, it saddens me to disappoint, but I don't know of any empirical database on that.


I very much thank you for taking the time to respond.

One of your former students

[idahojess]

I tried to skim through Todd L Green's old articles, just to see if he had anything about owning multiples of the same guns (As HCM mentioned). Maybe SLG would be able to search. (I don't know how to do the fancy mention thing -- that probably didn't work).



https://pistol-training.com/page/131/

[okie john]

John--

Please allow me to express my sincere thanks for your efforts on this. I was sure that someone on this forum would have contacts with people who have the widest access to info, if anyone does. I will plan on posting the final letter after I finish it (unless that violates a forum rule that has not come to my attention), in case it is of interest.

I have found a Shooting Illustrated article, Tamara Keel, Why You Should Keep a Third Carry Gun, ShootingIllustrated.com (Oct. 25, 2020), so I can provide at least some authority for having multiple carry guns.

Regards,

Did you mean Tamara?


Okie John

[RDB]

That's not how this process really works, though. ATF has already been directed to move "as close to universal background checks as possible within existing law." (https://www.whitehouse.gov/briefing-room/statements-releases/2023/08/31/fact-sheet-biden-harris-administration-takes-another-life-saving-step-to-keep-guns-out-of-dangerous-hands/#:~:text=In%20March%2C%20President%20Biden%20signe d,as%20possible%20within%20existing%20law.) No matter how polite comment writers are, their comments are going to be ignored. (Beyond the technical responses that are required as part of the final rule process.) Writing something that is interesting for a clerk to read and preserves all arguments as part of the administrative record is really all that is important.

For example, if I were worried about ATF's feelings, I probably wouldn't start a comment reminding them that the current "engaged in the business" language only exists because of the agency's own bad behavior (including getting an NRA member shot in the head as the result of a raid that had very questionable probable cause), but I maybe did do that.

Ahhh. I was hoping you would see the thread. We've briefly met once, at a convention.

I concur, of course (though I did not know about the comment).

[Edit to remove items perhaps better not memorialized here.]

Regards

[RDB]

Did you mean Tamara?


Okie John

Indeed I did.

[DMF13]

. . . including getting an NRA member shot in the head as the result of a raid that had very questionable probable cause . . .
Which case would that be?

[RDB]

I tried to skim through Todd L Green's old articles, just to see if he had anything about owning multiples of the same guns (As HCM mentioned). Maybe SLG would be able to search. (I don't know how to do the fancy mention thing -- that probably didn't work).



https://pistol-training.com/page/131/

I thank you. I tried searching for duplicate and, I believe, sacrificial, without success at least as to the basic scope of the main post.

[joshs]

Which case would that be?

Ken Ballew: https://en.wikipedia.org/wiki/Ken_Ballew_raid

Not an "engaged in the business" case, but it was one of the primary cases that created the political pressure for FOPA to become law.

[RDB]

DMF13

You've identified the premise of your observations as concerning


the people you might hope to influence at ATF , which you reference as your
reason for pointing it out." I gather it is now clear that this premise is not accurate (influencing the language of the ATF's rule is not a primary objective), and your observations are inapposite (inapplicable). Although there is more I could observe, I will leave it with that.

[DMF13]

Ken Ballew: https://en.wikipedia.org/wiki/Ken_Ballew_raid

Not an "engaged in the business" case, but it was one of the primary cases that created the political pressure for FOPA to become law.If you're going to cite "Ballew," I think this is a better citation than "Wikipedia":
https://law.justia.com/cases/federal/district-courts/FSupp/389/47/1591779/

Interesting that the Court didn't find the probable cause "questionable."

[DMF13]

DMF13

You've identified the premise of your observations as concerning
, which you reference as your I gather it is now clear that this premise is not accurate (influencing the language of the ATF's rule is not a primary objective), and your observations are inapposite (inapplicable). Although there is more I could observe, I will leave it with that.Bless your heart.

[Tamara]

This is something that concerns me.

I've got about ten AR's in the safe that I've put together, basically just to have something to do. Most of them have been shot no more than to function check, zero with a Romeo RDS, fiddle with buffer weights until I like them, and then shoot for group with, usually an old Leupold 3x9 mounted.

I've pretty much run out of safe space. I knew from the git go that I'd never get what I had in them back out of them but I can't see getting an additional sharp stick in the eye by consigning them to the LGS. I've been hesitant to get a table at a gun show because 1) the receivers would all lead back to me if one were used in a crime; 2) I'm concerned that a table full of pretty new looking AR's would look like I'm in the business of manufacturing and selling even though it's just a past time to keep me occupied and not for profit.

This thread has ratcheted up my concerns.

Even under existing rules as currently interpreted, that hypothetical gun show table would be tap-dancing right up to the edge of "engaged in the business", although even if it did draw attention and you explained it as you have here, it would most likely amount to nothing.

Now, if two years later you turned up with another table full of AR's you had just built for giggles and then again decided to dispose of, en masse... well, that would not be interpreted nearly so charitably.*


Relevant to this discussion...

Back when I lived in Knoxville, I knew pretty much all the regulars on the gun show circuit. There were a couple guys who set up a little three-table display at every show with a big "PRIVATE COLLECTION" sign, and they seemed to privately collect a surprising number of zamak wonders, often complete with boxes.

At the Expo Center shows, they regularly set up across from an elderly gent who was a big-time Ruger collector, who was one of the last guys I know who treated gun shows as they originally started out: A way for gun buffs to display their collections for mutual admiration and maybe a little horse trading. Ruger guy had eight or so tables of glass-topped cases with alternating red and gold backing and various rare and collectible Rugers in them. While it was all technically "for sale", most of it was for sale in the way your house is technically for sale: Offer a large enough pile of cash and it's sold. But Ruger guy also had a few pieces that were definitely being sold. The dregs of the collection or extra pieces he'd acquired as part of buying someone else's collection, that sort of thing.

Neither the "PRIVATE COLLECTION" guys nor Ruger dude had an FFL.

One day a couple of Feds pull Ruger dude aside and ask him to help them with the investigation they're running on the "PRIVATE COLLECTION" guys. Can he identify this person or that person? Does he remember the dude in this photo? That sort of thing.

Well, he cooperated... nobody really much liked the "PRIVATE COLLECTION" guys anyway ...and, after their discussion, the Feds showed Ruger guy a list. A list of most of the guns Ruger guy had sold at the shows over the past year or two. "Sir, thanks for your help. Your collection is big enough and you do enough horse trading at these shows that you really should get an FFL." So he did.


If one is a licensed dealer, one's premises are subject to warrantless inspection by the government. And if the stuff is in one's residence, that can be searched without a warrant. There are lawsuits where courts have validated that.

This is why it is important, if one is going through the process to get an FFL at one's residence (assuming it would not be prohibited by zoning; while not strictly a federal matter, the BATFE will fink you out to your local zoning board), that one specify which part of the residence is the "premises" of the FFL. A specific room with an exterior door, perhaps a walk-in basement, would be preferred. I have walked through this much of the process with friends twice now. (One of those friends called me one night and asked "Tam, where do they keep the monsters?" I was like "Huh?", and he continued "Everybody I've dealt with at the ATF has been helpful and friendly and basically held my hand through the process.")




*And if they did determine that you were engaged in the business, that'd be a double whammy, because no Making Tax had been paid on those. Building complete ARs for sale from stripped receivers requires an 07 FFL, not an 01. If I'm remembering my history correctly, that's what originally drew the ATF's attention to the Branch Davidians.

[joshs]

If you're going to cite "Ballew," I think this is a better citation than "Wikipedia":
https://law.justia.com/cases/federal/district-courts/FSupp/389/47/1591779/

Interesting that the Court didn't find the probable cause "questionable."

I'm aware, but I just disagree. I don't think a CI claiming that someone has "grenades" combined with a search of the NFRTR turning up no matching registrations should be sufficient for PC. Luckily, Congress didn't agree with the Court, and we got FOPA as a result.

[RDB]

This is why it is important, if one is going through the process to get an FFL at one's residence (assuming it would not be prohibited by zoning; while not strictly a federal matter, the BATFE will fink you out to your local zoning board), that one specify which part of the residence is the "premises" of the FFL. A specific room with an exterior door, perhaps a walk-in basement, would be preferred.

I had neglected to mention in my draft the zoning issue. Thanks for reminding me! This post is quite helpful.

[Tamara]

I had neglected to mention in my draft the zoning issue. Thanks for reminding me! This post is quite helpful.

Oh no. The federal authorities will not help you violate local ordinances. The absolute horror.

[joshs]

Oh no. The federal authorities will not help you violate local ordinances. The absolute horror.

What if those ordinances are preempted by state law?

[Tamara]

What if those ordinances are preempted by state law?

Should be a slam-dunk for the homeowner-licensee, then.

EDIT: I should probably clarify my position, in that I don't see a lot of the "hair on fire" potential in this particular rule clarification that many of my friends do.

The "engaged in the business" thing has been ridiculously vague and in dire need of clarification for a long time. The more concrete the ATF tries to make it, the better, in that even if they overreach it gives us a fixed target at which to litigate or legislate.

[joshs]

I don't see a lot of the "hair on fire" potential in this particular rule clarification that many of my friends do.

Even ATF knows that it's unlawful (that's why it can't be applied in criminal cases). Why create a new rule to "clarify" a definition applicable to criminal statutes that can't be applied in criminal cases? And, if you're going to claim it will be applied in administrative proceedings, then why not explain how that will work since ATF's primary administrative jurisdiction is over people for whom the definition is not particularly important (licensees)?

Many of the presumptions within the proposed rule are clearly meant to deter conduct that this administration doesn't like so that the president can go back to his political supporters and claim he did everything possible to get "universal" background checks. But, that's not what the "engaged in the business" definition was enacted to do. And, it causes problems for people who might fit within a presumption because now they may not have a clear legal way to dispose of a firearm without getting an FFL (as noted above, transferring through an FFL doesn't help avoid a 923(a) charge).

[RDB]

I would like to thank those who participated constructively, volunteering their observations in a way that improved what I was able to file. I regret to note that my teaching obligations have left me less time to polish my observations than I would prefer. And I am sure there are typos that I will, on further reflection, find unfortunate.

I am attempting to attach the filed version and a redacted version that eliminates any reference to myself. Some of you may find the observations of interest. I would encourage anyone who believes he or she may more artfully express concerns on the release to write those observations and submit them. The main url for that is at the end of the comment letter.

If posting something like this is contrary to forum rules, please allow me to apologize (and mods can remove it themselves or ask me to do so).

Again, thanks.

Regards,

[RDB]

Oh no. The federal authorities will not help you violate local ordinances. The absolute horror.

I don't believe that is quite the circumstance. Rather, as I understand it:

i. The ATF is creating a presumption, unsupported by the statute, that will result in some persons who are not currently in violation of zoning ordinances feeling compelled to elect to be licensed as dealers;

ii. When the Gun Control Act of 1968 was adopted, Congress indicated that the act was not intended to chill exercise of the enumerated right to keep and bear arms;

iii. Therefore, there would appear to be a 170 year tradition in which Congress respected that its authority to regulate firearms ownership did not extend to chilling the exercise of the protected right;

iv. Because Bruen tells us that there needs to be a Founding-Era analogue for a Federal restriction on firearms rights, and there is none, this restriction is unconstitutional;

v. Making that election to be licensed as dealers will be subject them to warrantless searches in the location where the arms are kept--that will include for many a bedroom, a consequence I expect many will not fully grasp; and

vi. That election will result in the individuals now being in violation of zoning ordinances and thus need to acquire a different location where they store their arms, but, that won't work, however, because the license appertains to firearms one would keep in one's home for self-defense.

So, in sum, I believe the ATF has imposed a condition on the exercise of a constitutional right that involves being subject to warrantless searches in one's bedroom. I would respectfully disagree that this is not significant, and I would respectfully submit it is unconstitutional.

Perhaps you will find something of interest in the comment, or perhaps not.

In any case, I very much appreciate that I was able to locate your prior story that allowed me to provide a reference to a common practice for which I needed to have authority. So, I thank you.

P.S.

We've met, by the way, at an unseasonably cold, as I recall, Ernest Langdon training event in perhaps 2016. So, hello again.

[Edit to fix numbering in list.]

[BWT]

EDIT: It duplicated.

[BWT]

Even ATF knows that it's unlawful (that's why it can't be applied in criminal cases). Why create a new rule to "clarify" a definition applicable to criminal statutes that can't be applied in criminal cases? And, if you're going to claim it will be applied in administrative proceedings, then why not explain how that will work since ATF's primary administrative jurisdiction is over people for whom the definition is not particularly important (licensees)?

Many of the presumptions within the proposed rule are clearly meant to deter conduct that this administration doesn't like so that the president can go back to his political supporters and claim he did everything possible to get "universal" background checks. But, that's not what the "engaged in the business" definition was enacted to do. And, it causes problems for people who might fit within a presumption because now they may not have a clear legal way to dispose of a firearm without getting an FFL (as noted above, transferring through an FFL doesn't help avoid a 923(a) charge).

I agree. I don’t see how this does anything but put average Americans in increased legal jeopardy.

I forgot to comment under the deadline.

I look at it like this I have a Form 4 at 370+ days. Does this feel like the organization that should be able to arbitrarily say I have a business when selling firearms?

I inherited a few from my deceased Father. How many of those do I sell before I pass some arbitrary threshold?

The goal is to dissuade firearm ownership through whatever means necessary is my opinion.

[kwb377]

In individual on a local forum posted that he was raided by the ATF this past Wednesday (Dec. 6) for being a "dealer" without an FFL for selling on Armslist and the forum.

I have no other knowledge other than what the poster has presented (nothing showing in local news)...

https://www.algunforum.com/threads/raided-by-atf.6253/#post-29462


Guys, just letting the community know the AFT is out there and is taking names. I was raided by them this morning at 6:30, and they were here for several hours. They took EVERYTHING: all guns, ammo, AR lowers and uppers, and suppressors. I had north of 120 guns, over 70k rounds of ammo of all calibers, and 7 suppressors--all probably over $200k of stuff I've accumulated over many years. All gone. I don't even have a daily carry or a hunting rifle. They also took my phone, my wife's iPad, and my 2 computers. I have no idea if I'll ever get any back or when. They accused me of dealing without a license, and they specifically called out Armslist. They got another friend same time today, and he had over $500k in stuff. You've been warned.


I honestly don't know, maybe 1-2 a month. I had more to sell this year because a friend asked me to help sell 3-4 because he needed money. They took his guns too. I've heard the numbers 2 per year up to 5 per month before they consider you a "dealer", but I've never seen anything formal, legal, or official.

I wasn't dealing. I'm an enthusiast and hobbyist and kitchen table gunsmith. I buy one and keep it if I like it. If not, I sell or trade it.

I believe without reservation they are "waiting to pounce". There's a lot more I could say, but...

I've already talked to an attorney, and I'll keep everyone updated. This is gonna be a long road.


They said selling firearms but not being a licensed FFL. They never said I was over some threshold. I've never heard what some threshold might even be. As I said, I'm an enthusiast and like to try stuff. If I didn't like, I'd try something else. I'll come back and update when I know more. It's gonna be a long road.

[jh9]

I had north of 120 guns, over 70k rounds of ammo of all calibers, and 7 suppressors--all probably over $200k of stuff I've accumulated over many years

I honestly don't know, maybe 1-2 a month. I had more to sell this year because a friend asked me to help sell 3-4 because he needed money.

I wasn't dealing. I'm an enthusiast and hobbyist and kitchen table gunsmith

Look, I'm not saying it's right. But that does seem like the sort of thing the ATF maybe notices a little bit.


I've already talked to an attorney, and I'll keep everyone updated.

In my limited experience with hiring (civil, not criminal) attorneys, you don't pay an attorney to talk to them. You pay an attorney to briefly listen and then do the talking, exclusively while you stop talking about those exact things on the public internet. Like the potentially incriminating "yeah I was doing it but I don't know what the ATF's problem is" posts he made? That's a great example. That lawyer he talked to probably told him to do exactly not that.

I don't like the ambiguity of "engaged in the business" and I'm not generally in the habit of making excuses for the ATF but this guy is the author of his own misery. This isn't stepping on your own dick. This is sticking your dick in a pencil sharpener, conveniently located next to a sign saying "do not stick your dick in pencil sharpener".

[rcbusmc24]

That dude needed to to pay his 200 bucks for three years for the FFL license... He was involved in the buisiness....

[whomever]

I seem to recall accounts over the years that went like:

1)Dude doing stuff like this guy
2)ATF drops by for a chat, or writes, or whatever, sez 'you're walking on thin ice, we advise you to get an FFL or tone things down'
3)guy blows it off, continues to dance on the ice
4)Then the ATF busts him

Given the squishyness of being in the business vs. big time hobbyist, that seemed like a nice approach.

Are they still doing #2?

[kwb377]

Like the potentially incriminating "yeah I was doing it but I don't know what the ATF's problem is" posts he made? That's a great example. That lawyer he talked to probably told him to do exactly not that.


This was my initial thought also. Still probably not a good idea but if you absolutely feel the need run your mouth, an ambiguous "Hey, just a heads up...the ATF is heavily scrutinizing sales without a license" without any details is the only thing you need to post. This guy's attorney is probably downing a couple of shots and thinking, "This fuckin' guy..." right about now.

And if I had to guess, the "uppers and lowers" and "kitchen table gunsmith" combination probably equates to assembling AR's and selling for profit.

[rcbusmc24]

It might make me an asshole to some of you all but we will totally report someone who keeps transfering in or buying stripped lowers from us month after month once we figure out they are running the gunshow circuit or selling on the trade sites. We are not interested in fielding the inevitable trace requests...

[rcbusmc24]

Plus it is not that hard to maintain a bound book and file 4473's by date. If you can't or won't do that then don't try to turn a profit or trade in firearms...