The ATF Issues A New Directive Defining Dealing In Guns But What They Say Is Not So New.

January 5, 2025

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As someone who has sold more than 12,000 guns retail, which included selling guns at gun shows and over the internet, I think I know a little bit more about whether today’s White House announcements will have an impact on gun violence than does Mike Huckabee, who has already announced that he will “repeal” every one of Obama’s gun initiatives, even though most of what the President intends to do has nothing that could be repealed at all.

atf Coincident with the White House news release and media blitz, the ATF has issued a new publication which attempts to define their notion of what constitutes being in the “business” of selling firearms, which is one of the key elements in the new Obama plan; i.e., people who sell guns privately at gun shows or online may now be required to operate as federally-licensed dealers, which means that they must conduct NICS-background checks on every gun they sell – unless, of course, the gun is transferred to another dealer.

I have read this publication with care, in particular a series of brief vignettes that give examples of people transferring guns as a business transaction as opposed to people transferring guns where no real business activity occurred. In my judgement, this publication is totally consistent with relevant laws as well as a reflection of the approach usually taken by the ATF in regulating firearm sales: “As a general rule, you will need a license if you repetitively buy and sell firearms with the principal motive of making a profit. In contrast, if you only make occasional sales of firearms from your personal collection, you do not need to be licensed.” And this rule applies to every venue that might be possibly used for selling guns – your store, retail space, trunk of your car, laptop computer or anywhere else.

I never had a problem complying with this rule when I sold guns at shows or over the internet because I was always a federally-licensed dealer; hence, every gun in my inventory needed to be identified as to where it came from and to whom it was then sold. And since as a licensed dealer I could only sell to individuals after completing a background check, it didn’t matter what sales venue I used. The ATF could (and did) inspect my documentation to insure that every gun in my inventory was properly acquired in and transferred out, and if I couldn’t produce the requisite paperwork for any particular transaction they would raise holy hell.

To provide some guidance as to what constitutes dealing in firearms, the ATF has appended 9 examples of different types of gun transfers of which 5 instances would require a dealer’s license and 4 others would not. This is a pretty comprehensive series of examples which, to my mind, honestly reflect the basic requirements of operating with a federal dealer’s license as opposed to an individual who has a personal need or desire to transfer some guns. On the other hand, anyone behaving like the 5 ‘repetitively buying and selling’ examples who doesn’t currently have a dealer’s license should be prosecuted not just for illegal sale of guns, but for being a complete and unmitigated dope. And any current FFL-holder who sells guns to someone knowing or suspecting that this individual is engaging in repetitive, for-profit sales, is aiding and abetting straw sales - period, that’s that.

The truth is that most gun dealers buy from and sell to the same people all the time. Even my internet sales, which were always dealer-to-dealer transactions, went to the same dealers because I trusted them and they trusted me. Although the term ‘straw sales’ never appears in this publication, when someone buys a gun from a dealer intending to resell it privately to someone else, that’s exactly what constitutes a straw sale, and anyone who actually believes that this infringes on 2nd-Amendment rights, also probably believes that Mexico will pay for Donald Trump’s new fence.

 

 

The Center For American Progress Has Some Good Ideas To Help Obama Define Who’s Really Dealing In Guns.

October 16, 2024

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This week the Center for American Progress issued a report recommending changes in the definition of being engaged in the business of selling guns. Clarifying what constitutes dealing in firearms would bring more gun transactions under the purview of the ATF and thus create more barriers to guns moving from one person to another without a NICS-background check. The CAP report is a response to President Obama’s announcement after Roseburg that he might invoke executive authority to redefine how many gun transactions would demonstrate an ongoing business activity, as opposed to simply owning or collecting guns.

cap logo Gun dealers have been regulated by the Federal Government since 1938 when a law was passed that required dealers to purchase a Treasury license for one dollar and follow some simple rules whenever they transferred a gun, namely, verifying that the individual to whom they delivered the gun lived in the same state where the dealer was located.

The 1938 law was completely revamped and the scope of government gun regulation widened to an unprecedented degree by the Gun Control Act of 1968. Now dealers were not only required to verify the age and address of the customer, but also to verify that the prospective gun owner was not a member of various prohibited categories; i.e., felon, drug addict, fugitive, mental defective, and so forth. A gun dealer had no way of checking the veracity of such information, but at least there was a document on file for every over-the-counter sale.

Verifying whether an individual was telling the truth about his fitness to own a gun was what lay behind the Brady Bill passed in 1994. In lieu of a national waiting-period on all gun purchases was a provision that required every federally-licensed dealer to contact the FBI who then verified that the customer was telling the truth. But in order to access the FBI examiners, you had to be a federally-licensed dealer. No federal dealer’s license, no contact with NICS. Which is where the whole notion of ‘loopholes’ in the gun-licensing system came from; which is what Obama would like to close. And the easiest way to close the loophole, or at least make it smaller, is to define the word ‘dealer’ in a way that requires more people to become FFL-holders if they want to buy or sell guns.

The CAP report is a judicious and careful attempt to set out some criteria that could be used to determine who is really engaged in the business of selling guns. It does not recommend any specific amounts of guns that might be transferred nor how much money someone needs to earn over any given period of time. Rather, it looks at how various states define commercial enterprises and whether such definitions would be a useful guide to creating a more realistic way to establish that someone is going beyond just collecting or owning guns.

What the report doesn’t mention is that if the FFL imposes some sort of uniformity over dealers at the federal level, when we look at how states license gun dealers, there’s no uniformity at all. Every state collects sales taxes, every state imposes and enforces other business regulations, but when it comes to guns, most states simply place the entire regulatory burden on the Feds and the ATF. In order to receive an FFL, the prospective dealer must send a copy of the license application to the local cops, but if the particular locality doesn’t have any local laws covering gun dealers, the local gendarmerie could care less.

I hope the CAP report will be taken seriously by the President before he issues an Executive Order that more clearly defines what it means to engage in the commerce of guns. I also hope he won’t publish an Executive Order that places more unfulfilled regulatory responsibilities on the ATF and provokes the usual ‘I told you so’ from the pro-gun gang. If it were up to that bunch, there would be no gun regulations at all.

Can Hillary Close The Gun Show Loophole? I’m Not So Sure.

October 5, 2024

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One of the planks in Hillary’s new gun control program calls for “closing the gun show loophole,” an issue that has been floating around for years since Dianne Feinstein who has sponsored legislation to regulate gun shows after she entered the Senate in 1992. There’s a lot of misinformation floating around on gun shows, particularly among people who don’t go to gun shows, and this is a good time to clear some misconceptions up. In particular, the question of whether there’s any real gun-show loophole at all.

hillary2 When most people speak about gun show loopholes what they mean is that anyone can walk into a gun show and get their hands on a gun, legal requirements met or not. Although many FFL-licensed dealers display and sell their inventory at shows, very few states impose licensing requirements on gun show vendors, as long as individuals who rent tables and sell at shows meet existing local laws on private transfers of guns. And since most states impose very few regulations on private gun transfers, buying a gun without a background check at a gun show is no different from walking across the street and buying a gun from a neighbor or a friend.

What Hillary evidently wants to do is use some kind of executive authority to force all gun show vendors to be licensed dealers which would mean that every gun sold at a gun show would by a show vendor, would have to undergo a background check. I can’t tell you how many guns I have bought at shows just because I bumped into someone as I was walking around who was carrying a gun that I liked and a word here, a word there, some bills out of my pocket and I own the gun. And don’t think these kinds of transactions don’t happen in the parking lot outside the show either, because they happen all the time.

If Hillary really believes that she can end private sales at gun shows or anywhere else by using her executive power to define the word ‘dealer,’ one of her staff people should take a look at the Firearms Owners Protection Act that was passed in 1986. This law was passed to define or change sections of the GCA68 law which, because it represented the first time that the feds got into regulating gun commerce in a major way, contained passages and whole sections which nobody could really figure out. And one of the big issues that was revised was the definition of ‘dealers,’ since the ATF after 1968 had taken the position that anyone selling a gun to anyone else was engaged in gun commerce and therefore came under their control. Talk about a bureaucracy trying to extend its reach!

What FOPA did was to define a gun dealer as someone “whose time, attention and labor is occupied by dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of an inventory of firearms.” It also specifically excluded persons who made “occasional” sales or sold guns from “personal collections.” From my own experience based on wandering through hundreds of gun shows over the last forty years, I can honestly confirm that the FOPA definition fits probably 75% of all the guns I have seen for sale at all those shows. Most of the big-time vendors at gun shows aren’t selling firearms at all. They go from show to show, maybe do 40 shows a year, and they’re hawking t-shirts, memorabilia, all kinds of junk and crap but they’re not selling guns.

I’m thrilled that Hillary has injected the words ‘gun violence’ into the Presidential campaign. I hope she ramps up the message because, if nothing else, I’d like to see the ‘stuff happens’ nonsense shoved up where it belongs. But if anyone wants to really get rid of gun violence I’ll continue to say it again and again: It’s the guns, stupid. It’s the guns.

 

The ATF Issues A New Report On Gun Traces And Once Again They Get It Wrong.

September 1, 2024

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Here they go again – patting themselves on the back for the good work they do protecting America from the scourge of gun violence. We do have a scourge of gun violence, but whether the ATF does anything in response to this problem other than releasing self-congratulatory and misleading reports remains to be seen. The latest such missive, the ATF annual Firearms Trace Data, covers 2014 and Is advertised on the ATF website as containing “critically important information.” This sounds impressive, but let’s spend some time trying to understand exactly whether this ‘critically important’ information has any bearing at all on efforts by law enforcement agencies to deal with gun violence.

atf In 2014 the ATF traced 246,000 guns, of which 175,000 were handguns, 65,000 were rifles and shotguns, 245 were “unknown types,” (I love that category), the remainder various pieces of crap. Here’s how a trace works. The cops get a gun and then send a trace request to the ATF which includes the manufacturer and serial number and the reason why the gun is being traced. The ATF then contacts the manufacturer and a paper trail from factory to distributor to dealer to first buyer is created by contacting each point in the trail in turn.

Of course once the gun leaves the shop with the initial buyer, that’s it. And the ATF has absolutely no way of knowing whether the gun being traced was sold to someone else, or stolen, or ‘trafficked,’ - a meaningless word if I ever heard one – or whatever. The ATF keeps a missing/stolen list of guns but the only people required to report such guns to this list are federally-licensed gun dealers.

In addition to describing the gun, the agency making the trace request must also specify the reason for the request. Here’s where things get very interesting. There are 64 different reasons why a trace is made, ranging from homicide and aggravated assault to such serious threats to community safety as abortion, bribery, election laws (I’m serious), forgery, gambling and the greatest scourge of all – found firearm. This last category by itself covered more than 22,000 traces in 2014; i.e., nearly 10% of all traces. Of the 246,000 total traces conducted by our intrepid ATF in the process of protecting us from gun violence, I’m being generous by saying that 25% involved guns picked up during or after the commission of serious crimes. Yea, yea, I know. All those other guns might have been used in serious crimes, and I might actually go on a diet later today. In my state, Massachusetts, the cops asked the ATF to trace roughly 1,200 guns. Know how many were associated with violent crimes like homicide and assault? 44 guns. That’s five percent.

Along with telling us which gun shops sold all these crime guns, the ATF report also discloses another pile of data that is indispensable in the fight against gun crime, namely, what the ATF refers to as ‘Time-To-Crime;’ i.e., how long between when the traced gun was sold and when it was traced, the idea being that guns that are purchased as ‘straw sales’ will end up being used in crimes more quickly than guns sold to law-abiding purchasers. In 2014, the ATF says that TTC was just under 11 years. So if a bunch of guns came from a gun shop with a much briefer TTC, obviously this is a shop where something nefarious is going on.

Let me break the news to the ATF gently. The firearms inventory of most gun shops consists of 30%-40% used guns. Since TTC is only calculated on the initial sale, the TTC numbers are off by a factor of 30% to 40%,. Want to base public policy on data that might be 40% incorrect? I don’t.

I have no issue with regulating a consumer product that is as lethal and dangerous as a gun. But the regulators should at least know something about how the industry operates they are regulating. The ATF trace report proves that they don’t.

 

 

 

It’s Only New York, But The NRA Better Not Ignore A New Voter Poll About Guns.

April 30, 2024

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This week New Yorkers Against Gun Violence released a survey they commissioned of 600+ registered voters in New York State. It’s part of an effort to promote new legislation that seeks to add additional safety measures to the SAFE law, which provoked lots of ire on the pro-gun side when Andy crashed it through the legislature shortly after Sandy Hook. The campaign is focused on a safe storage act known as Nicholas’s Law, named after a twelve-year old whose friend shot and killed him with an unlocked gun.

According to the NYAGV press release, the survey shows strong majority support for a wide range of gun-control issues beyond safe storage, including seizing guns from persons convicted of misdemeanor domestic violence, microstamping of firearms sold in New York State, increased regulation of dealers and limiting gun purchases to one every month. With the exception of the last provision, a majority of gun owners also backed all the proposals, albeit by smaller margins of course.

Gov. Andrew Cuomo

Gov. Andrew Cuomo

Along with the specific gun-control proposals, the survey also asked both gun owners and non-gun owners about general attitudes toward the regulation of firearms. Here again, both groups agreed that gun violence was a serious problem and that government had the right to set “reasonable” regulations on gun ownership and gun use.

I am not surprised by these survey results, for the simple reason that New York is not a particularly gun-rich state. And even though gun owners are probably in the majority in upstate, rural counties, if you conduct a survey in which respondents reflect percentages of New York State’s population living in large cities and suburban zones, you’re going to get most of your answers from people who, even if they own firearms, certainly don’t have the degree of enthusiasm or loyalty to the gun culture that you find in the South or rural parts of the Midwest.

That being said, when I looked at the cross-tabs for every question which break down responses by age, gender and race, the results of this survey raised some serious doubts in my mind as to what the future of gun ownership is really going to be. Because what was interesting about the cross-tab responses was the degree to which for virtually every question, the groups that the gun folks have been trying hardest to persuade to join their ranks are exactly the groups who appear to be least interested in owning or, to put it bluntly, having anything to do with guns.

For example, in answer to this statement, “Having a gun in the home makes the occupants of that home safer,” a slightly majority (52%) disagreed. This runs contrary to recent polls which show that a slight majority nationwide would agree. But in New York nearly two-thirds of the female respondents disagreed, as did the Black and Latino respondents, as did the respondents ages 18 to 34. As to whether to support reasonable gun regulations, roughly three-quarters of Blacks, Latinos and women agreed with this statement, but for the 18-34 age group the number was a whopping 82 percent!

Again, it needs to be remembered that these numbers would be different In states where most people own guns. But I don’t think the gun folks should just write these numbers off because everyone knows that New Yorkers don’t like guns. Marketing campaigns to the contrary, women and minorities still don’t appear enamored of guns. Moreover, the fact that younger respondents exhibited the highest degree of approval for gun control and the lowest degree of support for the notion that guns protect us from crime tells me that the NRA and the pro-gun community may not be reaching the next generation of gun owners with a message that really works. But that still leaves open the question of whether the other side can double down on the views of women, minorities and millennials to advance their agendas in gun-rich states. New York ain’t exactly Dixie, right?

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