JohnKSa said:
Are we really working our way around to the conclusion that if a person ever buys a gun and sells it for a profit that person is in danger of prosecution?...
I don't think so. But certainly there can be risks, depending on what one does.
So if I shoot regularly, perhaps compete or attend classes as a matter of course, or if I hunt from time to time, but on occasion sell one of the guns I regularly use for such activity, I'm most likely in the clear even if I make a profit on the sales.
I'm also probably okay if I like to hang around guns show or visit gun stores, buy a gun every so often for my recreational shooting, but sometimes find a gun at a good price that I think someone I know might be interested in, buy it and sell it. One factor that might matter is whether I buy more guns for my own shooting than I occasionally buy thinking I could sell it.
Things start to get murkier when I'm spending a lot of time roaming gun shows and gun shops looking for interesting and under priced guns, buying them and selling them, more than I'm buying guns to keep or to shoot.
JohnKSa said:
...Is there really no way that one could come up with a foolproof method for occasionally buying a gun and selling it for more than the purchase price without running the risk of having the authorities look "at the totality of the circumstances and all the factors discussed in the various cases" and deciding it's being done as a business?...
Well there's no bright line test or safe harbor, but I don't think it's really all that random.
I think most people will know what they're doing unless they are fooling themselves or are disingenuous. The danger signs probably revolve around when one is buying and selling more than he is shooting and keeping. Is he really just rationalizing at that point about being a "collector"? Is he being honest with himself when he avoids accepting that his real interest is the dealing -- buying and selling rather than owning and shooting? Because at that point he's really at risk.
As a hobby, there's nothing wrong with deriving one's satisfaction and fun from the "action" of dealing. With any sort of collectable there are folks whose real pleasure isn't owning that painting or watch or antique table or baseball card; it's the buying and selling of such things. The difference is that one doesn't need a license to deal in baseball cards. But he does need a license to deal in guns.
And one needs a license to deal in guns because, I think the ATF would contend, gun transfers by a dealer need to comport with certain formalities, e. g., background checks, forms that are retained, validation of a transferee's identity and place of residence, etc. So limiting transactions by unlicensed persons limits transfers "off the books." We might not like that, but that is government's rationale, and ATF is going to serve that interest until a court tells it that it can't or until Congress changes the law (both extreme long shots).