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-A.../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