Caution: ATF Background Check Reinterpretation Rule Ahead

A collector liquidating a collection or an illegal dealer? Is selling personal guns like using prunes for regularity: are three too few or six too-many? No quantifiable standard could mean trouble for almost anyone.

Thursday, the Biden Administration rolled out a continuation of their efforts to restrict firearms and ownership rights via their favorite backdoor method: changing definitions to suit their political whims.

This time, they’ll be instituting a re-interpretation of the ATF definition of what constitutes a “licensed firearms dealer.” That’s despite the comment period for the proposed reinterpretation having generated more than 300,000 overwhelmingly negative responses. 

The stated goal is to close the alleged gun show loophole. That mythical loophole will be closed via significantly broadening of the definition of what constitutes being “engaged in the business” of selling guns. 

The PR wing of the Justice Department is floating — via mainstream media — the “fact” that there are now an estimated “more than twenty-three thousand” unlicensed gun dealers in America. They also admit their guesstimate is…imprecise.

The expanded definition doesn’t quantify what differentiates an illegal seller for a legal one.  What is says is any individual who repeatedly sells firearms to “predominantly earn a profit” must now obtain a federal firearms license and do background checks on buyers.

Here are three “hints” they say will provoke ATF scrutiny: 1) purchasing online ads, 2) record keeping, and, 3) operating a credit card system. 

I have never advertised anything firearm-related online. But I have used eBay to sell watches and cameras in the past. That’s one “hint” avoided.

However…the NRA Personal Firearms Record Books I’ve maintained for the past two decades are going away. They contain lists of the guns I’ve owned, sold or tested since beginning The Wires. A one-sheet inventory of what I own — today — will suffice for insurance purposes. Otherwise I run a risk, although admittedly a small one, of triggering scrutiny.

If you’re like me and have the Square (or Melio or Wave) app on your phone, you also have the ability to accept a credit card payment. That’s two of the three “hints” confirmed. Buyers at our next neighborhood yard sale will now need to have cash. No cards accepted any more.

There are a couple of carve-outs that won’t require a background check: private transfers between family members or liquidation of a personal collection without restocking. 

The definition of “restocking” isn’t defined, but the exuberance of the current administration to enforce any rule that restrains gun rights would indicate that there will be little hesitation to go in extremis to say that selling your gun(s) means there are no more firearms in your future. Otherwise you run the chance of meeting the definition of a dealer who’s “restocking.”

Attorney General Merrick Garland issued a statement proclaiming the regulation a “historic step” that will “save lives.” The statement goes on to say that federal data says illegal or black market (that’s potentially a new working definition for “personal sales”) are “increasingly found at shooting scenes.” Of course, that scary fact is in no way quantified by the DOJ. 

Without quantification “increasingly found” is a rubber ruler. After all, increasing something from one to two constitutes a statistical 100% increase in frequency.   

Garland’s statement was quick to explain the new regulation won’t impact existing licensed firearms dealers. Instead, it says, the new rule will “bring unlawful dealers into compliance with federal law.”

That’s not exactly accurate. Via the casting of a very broad net, it leaves room for lots of interpretation. That’s what imprecisely written regulations always do. They create the potential for innocent individuals in find themselves in sticky legal entanglements along with the rule’s actual alleged targets: unlicensed gun dealers.

In commercial fishing, that’s called “bycatch.” In an administration that has been at war with gun manufacturers and owners since its inception, the military term is probably more appropriate: “collateral damage.”

Granted, that sounds like superheated political rhetoric. Unfortunately, a preponderance of evidence supports the assertion of bad intent on the part of the administration. The evidence includes the words of the President and his ATF appointees.

Actual scientific studies of the effects of background checks on violent crime say evidence that dealer background checks reduce firearm homicides is, at best, moderate.

The government, however, isn’t about to reference examples where background checks were most effective. They were in states where checks included checks on mental illness, restraining orders and fugitive status. That’s because crazies, criminals and fugitives don’t fit the narrative. They weaken it.

Gun owners are naive to believe politicians are going to eagerly go to bat for us on this one. Pro and anti-gun politicians are in lockstep when it comes to the avoidance of raising the problem and effects of mental illness in America. They have consistently approved measures to defund and dismantle America’s mental health care system. That has played a major part in creating a national mental health crisis that is real, tangible, and provable.

Guns aren’t the cause for horrible events. They’re just the most effective tool for criminals and crazies. 

Politicians, however, don’t want to address that fact. Instead, they “take action” against the people who are listening: law-abiding citizens. Apparently, they’re wishing for some sort of trickle-down effect on the very real problems of crime and mental health.

There’s an acronym used by members of the military when they see another bad decision headed their way: BOHICA. It’s appropriate here, too.

We’ll keep you posted.

5 Responses

  1. This will eventually end up at SCOTUS. Neither the ATF, DOJ, or Biden can ‘reinterpret’ what the law already says to create essentially a new definition. That’s what they are doing, saying people acting within the law and legally by selling their own personal property will be acting illegally under their creative reinterpretation of ‘dealer’ and that’s where they are getting their “more than twenty-three thousand” unlicensed gun dealers in America”, they are making it up using their own ‘reinterpretation’.

    1. It clearly will violate ‘Bruen’, full stop. but how many *years* to correct it? Will the Fifth Circuit bail us out here like they did on pistol braces?

      What if they do the same ‘Federal judge Shopping’ excursion and get a national ruling they want?

      Question, questions…

  2. A few things here –

    They had better move fast before the SCotUS cuts their legs off at the knees and says they can’t make laws without the Congress.

    Suppose they do, because they know it’s coming – What can we do about it with the courts? It was *obviously* done to skirt a SCotUS ruling they hate with a passion, what does that ruling do to all previous BATF ‘interpretations’?

    Will be forced to litigate each and every one over a decade or more or can we get a federal court to just say “Hell, no, you’re trying to pull a fast one here.”

    It will CLEARLY be a violation of the ‘Bruen’ decision, since private firearm sales have ALWAYS been legal, and what they are trying to do now is build a future airtight gun registration system, where every firearm has a paper history. Actual fascists love records to consult.

    We better get a gun registration case to the SCotUS as fast as we can, because the only way a government won’t take the citizen’s guns is if the government has no way of knowing what the individual citizen’s own. That’s the only way we keep this nation literally fascist-free if we ever need to use the 2A for what is was designed for.

    EDIT – The movie ‘Civil War’ I am interested in seeing. The Leftist Scum ™ actually think the military will do their dirty work for them. How quaint. Over 80 percent of the folks doing the ‘wet work’ in the military, are conservative, but what dooms their plan *dead* is what China had to do when they slaughtered the students in Tienanmen Square. They didn’t us troops stationed in Beijing, the pulled in the most rural troops they could find who knew nothing of living the big-city ways of life. To them, they were dangerous ‘other people’.

    That won’t work with the way the US military works. Personnel are randomly rotated every 2-3 years to a new post, effectively evenly mixing where everyone is from. They may control the officer corps, but they will have a tough time building battalions to hunt down the rural folks who won’t turn their guns in when told.

    I suppose that will be the beginning of civil war part deux… 😉 –

  3. I don’t have an FFL I can’t use NICS.
    If I can’t use NICS I’m not an FFL.
    I need an FFL to be engaged in the business.

  4. “A one-sheet inventory of what I own — today — will suffice for insurance purposes.”

    That’s a hard pass for ‘ol Haz. There is absolutely no way I’ll give anyone information (especially catalogued!) on my inventory outside of the bare minimum of the couple of items I’m legally required to declare by CA law to hold my CCW permit. Beyond that, nope.

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