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

[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