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

[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." 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.

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.thefreedi...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/