buying a gun to resell question

[BSA1]

As the OP stated his intent is to acquire the firearms to profit from their resale and has no interest in obtaining the firearms for his own use and collection, he cannot truthfully answer question 11a.

I think you are overreaching on this point. Question 11.a. asks;

"For the purposes of this form you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself."

The instructions go on to discuss what a strawman purchase is and not selling to a prohibited person.

Mr. Smith is paying for the firearm himself with his own money so it is not a strawman purchase.

Nowhere in the instructions does it discuss on long the buyer must possess a firearm.

Nowhere in the instructions does it define or discuss what “use or collection” is.

The O.P. states he is buying them for the purpose of reselling them in the future for a profit. This is one of the classic definitions of collecting.

I purchase a firearm with the intent to resale the gun at a unknown future date for a unknown price to a unknown seller. Until I do that though I am the legal owner of the firearm. Buying and keeping a gun until it reaches a price I want to sell it for is for my own use. Until I actually sell the guns I have not violated any law as circumstances may change or the market price may never reach the price I am willing to sell at.

As you know intent requires a high standard to prove. Courts have upheld that a person that has intent to commit a crime can change their mind at the last minute and thus no longer have intent and are not guilty of the crime they were previously thinking about.

Arguably if intent in this instance means selling firearms I no longer want to own at some unknown future time at a unknown price to unknown persons then the majority of gun owners should be arrested now.

 

[dogtown tom]

Frank Ettin

Quote:
...As the OP stated his intent is to acquire the firearms to profit from their resale and has no interest in obtaining the firearms for his own use and collection, he cannot truthfully answer question 11a.....

And that is your mistake. You are wrong on that point, as you would understand if you had read and understood the Court's opinion in Abramski.

I outlined the legal issue in post 20:

No, again your mistake is thinking that I'm only referring to the Abramski case and straw sales.

I fully understand what the Abramski case was about and the legal issues it involved.

So if one is buying a gun with the expectation that he will attempt to sell it at a profit, he has no identified buyer; and he is not acting as anyone's agent. He is buying the gun for himself, as a principal, on his own account. He is assuming the risk that he will be able to sell the gun to someone at the profit he hopes to make.

Buying a gun with the hope of being able to sell it at a profit, but with no prior arrangement made with a buyer, does not involve the legal issues upon which Ambramski was decided. It is not a straw purchase.

However, it does involve the question of whether doing so is acting as dealer and whether the crime of dealing in firearms without a license is committed.

Different facts and different law.

See the part in bold text? You can't see the clouds because of the fog.


Quote:
Originally Posted by buckhorn_cortez
The definitive study (to date) on 4473 violations and prosecutions is: "Enforcement of the Brady Act, 2010: Federal and State Investigations and Prosecutions of Firearm Applicants Denied by a NICS Check in 2010."...

Quote:

Originally Posted by gc70
18 USC 922a1A - Unlawfully engaging in the business of firearms: a compilation of data by Syracuse University shows less than 200 prosecutions per year during the period 2008-2012 in which the lead charge was 922(a)(1)(A)................

Excellent, and thank you both. It's good to see that some people know what "evidence" means and how to use it to support a point.

So........the DOJ and GAO documents I provided aren't good enough "evidence"?

 

[browningguy]

Just remember, ATF is reading this thread. They know who you are and where you are.

 

[gc70]

So........the DOJ and GAO documents I provided aren't good enough "evidence"?

What you provided were links to articles that each contained multiple secondary links; some subsidiary links were valuable and others were not. Pointing to something specific and possibly providing a short quote helps others understand the exact point you are making.

 

[Midwest]

Just remember, ATF is reading this thread. They know who you are and where you are.

And because they use the same National gun registry database site that 'Law and Order' and 'NCIS' uses, they know what exactly what firearms are in our possession at any moment. As soon as the firearm is sold, it automatically updates the national gun registry database by itself............
.

 

[dogtown tom]

Styx Quote:

Originally Posted by dogtown tom View Post
You miss my point.
Whether the OP's conduct may be considered a violation of federal law is still the call of ATF and the USAO. While the OP might never come across ATF's radar, the next guy buying guns with the intention to resell for profit may. ATF/USAO don't even have to win the case to ruin someone's life.

The bottom line is if you want to flip guns for profit, get an FFL.

Keep in mind that I have not followed this subject, so I do not know the case law, statistic, or the like. I'm basing my opinion on what has been cited, linked to, and discussed in his thread... I also do not know all of the details of the Abramski case being that I only briefly read up on it a while back when someone started a thread on this site...

Anyway, if I'm not mistaken, your point in bring up the Abramski case is that he was selectively prosecuted for a crime at the ATF's discretion that many others have not been prosecuted for?

Correct.

The logic behind your opinion is that even though the average Joe selling for profit on a small scale isn't usually at the top of the ATF's list, so based on the fact that Abramski was charged with a chime that you say normally goes unoticed, I can possibly also be singled out. Do I understand you correctly?

Correct.

In the Abramski case as I recall, he wasn't "singled out" per se, but rather he was originally under investigation for another crime. Next, Abramski clearly violated federal law and there was supporting evidence to prove the government's case which may very well be why they brought the charges. More importantly, based on the law and case law that Frank has cited, it's not a cut and dry or black and white topic as to flipping on or two firearms one time is illegal. Based on the fact that in your own Abramski example: Abramski wasn't an average Joe who was specifically targeted for braking a, as you say, law that usually goes unnoticed, and unlike the Abramski case, no law would decisively be broken by the one time non-repetitive sale of a firearm for profit (based on the text of the law) where as in the Abramski case, he clearly violated the text of the law, I don't see how your logic and example given to support it applies to my case.

Abramski was not a prohibited person until he was indicted on the federal charge of lying on the 4473......so up until then he WAS an "average Joe".

Don't get me wrong, Abramski lied on the 4473, no question about it.

Case law and the law it's self dictates that there would have to be other mitigating circumstances which would not exist in my own personal case whereas plenty existed in Abramski's trial. It's also very possible that some are being prosecuted and many others are not out because of the mitigating circumstances in each case instead of simply by chance and good or bad luck

I'm not saying this because it's the conclusion it's what I want to hear, but many of the members posting are wanting to come to general cause and effect conclusion without taking other facts of the case into account. .

Do not misunderstand me. I'm not saying selling firearms from ones personal collection is a violation of federal law. I'm saying all ATF has to do to make the rest of your life miserable is to accuse you of dealing in firearms without a license.

-Before filing charges they may tell you to get an FFL. (see the Wright case mentioned above). ATF told him to get an FFL shortly before he was arrested)
-They may issue you a cease and desist letter, telling you your only firearm sales may be to a licensee. I have two former customers who received such letters.
Customer A- in 2011, bought 100 AR lower receivers "as an investment" and had them shipped to me for transfer. At my compliance inspection, the IOI noticed the large # going to one person. Shortly thereafter, without selling a single one, ATF issued a cease and desist letter to Mr A.. He can only sell to a licensee or must get his own FFL to sell to nonlicensees.

Customer B- In 2013, sold an AR to a nonlicensee at a gun show in Dallas. The firearm was recovered in Mexico, traced to the original buyer who told ATF he had sold it to Mr B. in 2012. When asked, Mr B told ATF that he sold it "to a Texas resident with a TX drivers license at the Market Hall gun show". That ONE sale (a legal nonlicensee to nonlicensee transfer) resulted in Mr B receiving a cease and desist letter from ATF. (with identical stipulations as Customer A).

Neither Mr A. or Mr B believed they were engaged in the business of dealing in firearms. In short, you may be 100% legal and strictly following the letter of the law, but you can still attract the eye of ATF.

 

[dogtown tom]

gc70 Quote:

Originally Posted by dogtown tom
So........the DOJ and GAO documents I provided aren't good enough "evidence"?

What you provided were links to articles that each contained multiple secondary links; some subsidiary links were valuable and others were not. Pointing to something specific and possibly providing a short quote helps others understand the exact point you are making.

Good grief........read post #45.
It has DIRECT LINKS to DOJ and GAO documents.

Here they are again:
GAO report: http://www.gao.gov/new.items/g100064.pdf
DOJ report: https://oig.justice.gov/reports/ATF/e0406/final.pdf

 

[Frank Ettin]

No, again your mistake is thinking that I'm only referring to the Abramski case and straw sales.

I fully understand what the Abramski case was about and the legal issues it involved....

I suspect that's your story and you'll be sticking to it. Anyway, what you wrote is set out in this thread, so the readers of this thread can decide for themselves whether or not to buy your story.

So if one is buying a gun with the expectation that he will attempt to sell it at a profit, he has no identified buyer; and he is not acting as anyone's agent. He is buying the gun for himself, as a principal, on his own account. He is assuming the risk that he will be able to sell the gun to someone at the profit he hopes to make.

Buying a gun with the hope of being able to sell it at a profit, but with no prior arrangement made with a buyer, does not involve the legal issues upon which Ambramski was decided. It is not a straw purchase.

However, it does involve the question of whether doing so is acting as dealer and whether the crime of dealing in firearms without a license is committed.

Different facts and different law.

See the part in bold text? You can't see the clouds because of the fog....

What do you think you're saying here? What are you trying to say?

It is true, as I've outlined, that the crime of being a dealer of firearms without a license is a different crime from lying on the 4473 about who is the actual purchaser/transferee. They are based on different facts and different laws.

.....In short, you may be 100% legal and strictly following the letter of the law, but you can still attract the eye of ATF.

Yes, but that's not the same a being prosecuted, let alone convicted.

Pretty much all regulators will use cease and desist letters as a way of flexing their muscles, pushing the envelop, and playing poker to try to head off a possible problem.

I've represented a number of clients who had received various types of cease and desist letters from different regulatory agencies (not ATF). Often those letters, even when they overreach, will work. The client decides it's better to avoid any possibility of a confrontation.

Sometimes, however, a client will find it worth his time and money to challenge a regulator's cease and desist letter. Often doing so has resulted in a "clarification" of the letter along lines more favorable to my client. Sometimes we've had to pursue litigation to correct the agency's misunderstanding of the law.

 

[gc70]

Good grief........read post #45.
It has DIRECT LINKS to DOJ and GAO documents.

Here they are again:
GAO report: http://www.gao.gov/new.items/g100064.pdf
DOJ report: https://oig.justice.gov/reports/ATF/e0406/final.pdf

You linked to two articles with 17 secondary links in #40, then chided others in #42 for not intuitively knowing which secondary links you believed were relevant.
You linked to two specific documents in #45, but still did not identify which facts in the 189 pages in those documents support your point.

Help your readers: document, page, and fact X shows Y, proving Z.

 

[tarosean]

A local example hit the news today.

Wright, 70, of Georgetown, pleaded guilty in May to engaging in the business of dealing firearms without a license and to making false statements to a government agent. He resigned following his guilty pleas.
http://www.click2houston.com/news/excentral-texas-judge-gets-18-months-in-federal-guns-case/34723982

Course you already stated your intent on a public forum so it might not be the best idea...

 

[Praxidike]

A local example hit the news today.




Course you already stated your intent on a public forum so it might not be the best idea...

Kind of apples and oranges. The guy in the link sold 60 or so firearms with some being sold to known fellons. That CLEARLY violates the law where as they the federal law has explicit caveats to exlude casual sellers who aren't engaged in the business of selling firearms.

 

[tarosean]

with some being sold to known fellons.

Only one way to ensure you are not selling to a felon..... well, at least it puts the ball in their court with a FFL & 4473.

exlude casual sellers who aren't engaged in the business

vs. someone who publicly state their intent to purchase firearms to make money reselling. NOT adding to your personal collection or selling your personal guns as the law allows.

2, 10, 60, 100 no one here knows the answer to the exact number that will get you in hot water...

 

[Praxidike]

Abramski was not a prohibited person until he was indicted on the federal charge of lying on the 4473......so up until then he WAS an "average Joe".

Don't get me wrong, Abramski lied on the 4473, no question about it.

OK, but even if for the sake of argument I accept your premose that Abramski was singled out, he would have still been singled out for clearly committing a crime whereas as described in my OP, I would not be according to the cited law at least for the sale if 1 gun.

Do not misunderstand me. I'm not saying selling firearms from ones personal collection is a violation of federal law. I'm saying all ATF has to do to make the rest of your life miserable is to accuse you of dealing in firearms without a license.

Applying that same logic, are you also against all private sales as well as gifting firearms even though the law says it's legal? I mean applying your logic, couldn't the ATF make the rest of your life miserable by accusing you of knowingly selling to a prohibited individual, strawman sales, AND/OR dealing without a license?

What you're arguing is akin to me saying even though many people participate in gifting and selling guns privately and legally, no one should do it because some who did were singled out for prosecution for doing so... All the while ignoring the fact that in the cases where someone was actually prosecuted, for example, the defendant gifted a gun to a known fellon or sold dozens of firearms routinely at gun shows aka incorrectly coming to a blanketed one size fits all conclusion by only focusing the end result while ignoring important relitive details of each individual case in which someone was actually charged.

-Before filing charges they may tell you to get an FFL. (see the Wright case mentioned above). ATF told him to get an FFL shortly before he was arrested)
-They may issue you a cease and desist letter, telling you your only firearm sales may be to a licensee. I have two former customers who received such letters.
Customer A- in 2011, bought 100 AR lower receivers "as an investment" and had them shipped to me for transfer. At my compliance inspection, the IOI noticed the large # going to one person. Shortly thereafter, without selling a single one, ATF issued a cease and desist letter to Mr A.. He can only sell to a licensee or must get his own FFL to sell to nonlicensees.

Customer B- In 2013, sold an AR to a nonlicensee at a gun show in Dallas. The firearm was recovered in Mexico, traced to the original buyer who told ATF he had sold it to Mr B. in 2012. When asked, Mr B told ATF that he sold it "to a Texas resident with a TX drivers license at the Market Hall gun show". That ONE sale (a legal nonlicensee to nonlicensee transfer) resulted in Mr B receiving a cease and desist letter from ATF. (with identical stipulations as Customer A).

Neither Mr A. or Mr B believed they were engaged in the business of dealing in firearms. In short, you may be 100% legal and strictly following the letter of the law, but you can still attract the eye of ATF.

So again based on some of the examples above, are you against ALL private sales of firearms as well as private sales that go through a FFL based on your assertion that the ATF could theoretically change the seller with a crime even though the law as it's written says it is not?

 

[dogtown tom]

Frank Ettin Quote:

Originally Posted by dogtown tom
No, again your mistake is thinking that I'm only referring to the Abramski case and straw sales.

I fully understand what the Abramski case was about and the legal issues it involved....

I suspect that's your story and you'll be sticking to it. Anyway, what you wrote is set out in this thread, so the readers of this thread can decide for themselves whether or not to buy your story.

Condescension seems to be your story.

 

[dogtown tom]

Praxidike ...... if for the sake of argument I accept your premose that Abramski was singled out, he would have still been singled out for clearly committing a crime whereas as described in my OP, I would not be according to the cited law at least for the sale if 1 gun.

I've read this five times and still don't understand what it means.

Applying that same logic, are you also against all private sales as well as gifting firearms even though the law says it's legal?

No.

I mean applying your logic, couldn't the ATF make the rest of your life miserable by accusing you of knowingly selling to a prohibited individual, strawman sales, AND/OR dealing without a license?

Straw sale/purchase only involves transactions with licensed dealers.
It's not "my logic" that ATF can make life miserable....it's a fact.

What you're arguing is akin to me saying even though many people participate in gifting and selling guns privately and legally, no one should do it because some who did were singled out for prosecution for doing so..

No sir.
The difference is hundreds of thousands of gun buyers don't go on an internet gun forum to announce their plans to buy guns with the sole intent to resell them for profit.

. All the while ignoring the fact that in the cases where someone was actually prosecuted, for example, the defendant gifted a gun to a known fellon or sold dozens of firearms routinely at gun shows aka incorrectly coming to a blanketed one size fits all conclusion by only focusing the end result while ignoring important relitive details of each individual case in which someone was actually charged.

Huh?

 

[dogtown tom]

gc70 Quote:

Originally Posted by dogtown tom
Good grief........read post #45.
It has DIRECT LINKS to DOJ and GAO documents.

Here they are again:
GAO report: http://www.gao.gov/new.items/g100064.pdf
DOJ report: https://oig.justice.gov/reports/ATF/e0406/final.pdf

You linked to two articles with 17 secondary links in #40, then chided others in #42 for not intuitively knowing which secondary links you believed were relevant.
You linked to two specific documents in #45, but still did not identify which facts in the 189 pages in those documents support your point.

Help your readers: document, page, and fact X shows Y, proving Z.

My post (#40) was in reply to FrankEttin. I wrote "I'm not the only one who believes that it is exceedingly rare for the feds to prosecute violations of federal gun laws..." and I supplied links to two online news articles that agreed with me.

Whether the links contained within those articles is confusing to you isn't relevant, as post #40 wasn't referencing the GAO or DOJ documents......just the stinkin article.

Frank Ettin discounted those articles as "partisan political rhetoric" without even reading them. Further, he challenged me with "...if you have DOJ statistics to support your claim, post them"..... That's why I spoon fed him the GAO and DOJ documents with direct links in post #45.

While you may want me to post page#, fact X, etc...........I don't. Read it yourself and draw your own conclusions. This isn't the complete Idiots Guide to Federal Gun Laws.

 

[george burns]

If you don't make it a habit, it's fine.

 

[TimSr]

If you don't make it a habit, it's fine.

Exactly. The only question is whether reselling two guns for profit makes the OP a dealer according to federal law.

If buying a gun to resell later to an unknown purchaser is a straw purchase, then every dealer is guilty.

Three pages of nonsense that have nothing to do with the OP.

 

[deadin]

Of course not, or we are all dealers.

Actually, under a strict reading of the law, most of us probably are "dealers".
It's just that we either haven't crossed the magical "line" that brings us to the attention of the ATF, or are such small potatoes as to not being worth their time and effort.

 

[Frank Ettin]

...If buying a gun to resell later to an unknown purchaser is a straw purchase, then every dealer is guilty. ...

Buying a gun hoping to sell it later to an unknown purchaser is not a straw purchase, under Abramski or any other interpretation of the law.

Buying guns to sell to unknown purchasers could make one a dealer depending on (United States v. Brenner, 5th. Cir., 2012, No. 11-50432, slip opinion, at 5-6):

..."the quantity and frequency of sales"; the "location of the sales"; "conditions under which the sales occurred"; "defendant's behavior before, during, and after the sales"; "the price charged"; "the characteristics of the firearms sold"; and, "the intent of the seller at the time of the sales".....

If one doesn't have an FFL and is unlucky, whether he is a dealer will be decided by a jury at his trial weighing the evidence presented against those criteria.

Discussion of Abramski and straw purchases has been time wasted on a red herring. Discussion about the frequency with which violations of the Gun Control Act of 1968 are prosecuted might tell us something about the likelihood of getting caught and prosecuted, but are irrelevant to the question of whether or not given conduct violates the law.

There is a difference between getting away with breaking the law and being legal. As soon as one engages in conduct which could be found to be illegal he is betting his future against whether he will be lucky enough not to get caught and prosecuted. Undesirable things happen when one gets prosecuted for violating the law, and there are a lot of people in prison who didn't think they'd get caught and prosecuted.

Our purpose here is to help folks understand the laws well enough to be able to avoid violating them and thus minimize the risk of prosecution. One is free of course to decide how far he is willing to trust his luck, but hopefully we can help make that an informed choice.

 

[alsaqr]

During the time period July, 1996-December, 1998 the BATFE documented it's investigations into gun trafficking. The compilation is called: Following The Gun: Enforcing Federal Laws Against Firearms Trafficking.

See Table 19:

www.atf.gov/file/11886/download

www.atf.gov/file/11896/download

 

[giggitygiggity]

Frank Ettin, you clearly know everything seeing how you are responding to everyone's comments with haughty, all-knowing remarks. You are not encouraging opinions and further discussion from members so I suggest that you tell us one last time how little we know, how brilliant you are, and close this thread. With as much time as you've spent critiquing posts, you could have spent that time working on a law degree so that you could make retorts that people actually care about.

 

[Frank Ettin]

...You are not encouraging opinions and further discussion from members ...

Opinions are fine, but on legal matters opinions that aren't properly supported and based on good law are not only unhelpful, but are dangerous. Folks whose opinions are wrong on legal issues can get themselves, and others, into a whole lot of trouble.

For that reason we tend to be much more demanding on the Legal Forum. Opinions should be based on reality and well supported with evidence, documentation or citation to legal authority.

An opinion about whether the Glock or the M&P is, or is not, a better gun for concealed carry, even when based on bad information or a misunderstanding might not be such a big deal. But an opinion that X is legal, when the substantial weight of authority says that it is not, could have dire consequences if someone pays attention to it. (And there are subjects addressed in S&T and Handloading where bad information could lead to very bad outcomes.)

Law is also a tricky subject. To understand the law, one needs to work at it -- spending some time doing the research, doing some study, looking at the source material, etc. Much in the law is non-intuitive or will make sense only when one has sufficient background knowledge. You can't expect to be able to figure out what the law is or how it works just trying to "noodle it out."

...With as much time as you've spent critiquing posts, you could have spent that time working on a law degree...

I received my J. D. in 1976 and was admitted to the Bar in 1976. I made my living practicing law since that time until I retired a few years ago. I continue to satisfy my Continuing Legal Education requirements and remain an active member of the Bar.

 

[danez71]

Quote:
Originally Posted by giggitygiggity
...With as much time as you've spent critiquing posts, you could have spent that time working on a law degree...

You might be able to fit both feet in if you open wide enough

I've read this five times and still don't understand what it means.

Perhaps read it slower. It's not that hard to understand.

While you may want me to post page#, fact X, etc...........I don't. Read it yourself and draw your own conclusions. This isn't the complete Idiots Guide to Federal Gun Laws.

No its not. But if you're not willing or able to convey what you mean in a non big headed condescending way, maybe you should stick to your expertise which is handing someone the 4473 form and telling them to fill it out
... collect money and possibly give them some change.

You obviously know alot about being a FFL but you're really out of your league with this as evidenced by the amout of crude you throw out in an attempt to be-dazzle your way though it.

Exactly. The only question is whether reselling two guns for profit makes the OP a dealer according to federal law.

No one is going to find a Federal Law that states that one way or another the way it's been asked.

Doing what the OP asked certainly has elements of being a business.

The question is whether or not the Feds are going to make someone's life miserable because they want to flirt with the law.

 

[Old Checkered Wool]

There is absolutely nothing wrong or unlawful with an individual upgrading his/her firearm collection by means of selling a few of their lesser valued firearms in order to obtain a much nicer or more valuable one. According to ATF's website, there is no specific number given as to what a "few" firearms are or what they classify as an "occasional" sale.

For this very reason alone, I feel that people should proceed with caution and use a little common sense. If an individual was to sell/transfer 5 firearms over the course of a year, one would think that the frequency of those of sales would not be unreasonable. However, because the ATF doesn't come out and give specific numbers or time frames, it would be wise to use sound judgment.

I will give you an example of an individual I personally know. This individual got this brilliant idea when he was browsing through the firearms on gunbroker. This individual was a business man to begin with, so he was well off and always looking for ways to make extra money. A couple years ago he found his way to make extra money by buying all the colt (snake guns) he could find on the cheap, sending them to a business to be fully restored and then immediately reselling them on gunbroker as soon as he got them back from being restored.

For him, the whole charade was lucrative enough to keep him interested. After all, he was profiting sometimes 4x's what he spent on the firearm to begin with.

After about 4 months and 31 Colt Pythons later, he earned himself a visit from the ATF. They showed up at one of his many places of business to issue him a stern warning. In a nutshell, the warning was stern, but not threatening. They basically said, there was reason to believe he was flipping firearms for a profit and that if he wanted to continue, they insisted he get his FFL. That is all they said.

Now, this visit was enough to ruffle his feathers for awhile, but about 4 months later, he was back doing the same thing but at an even faster pace than before. I guess dollar signs blocked his better judgment.

In one years time, he had purchased, restored, and re sold a total of 71 Colt (snake guns) It was then that the ATF came in and officially shut him down throwing charges against him.

I haven't seen him around in about a year, but I know he is not in prison. I don't even know what charges were brought against him. What I do know is, that he hasn't purchased a firearm from any dealer in the whole state (according to all the dealers that he frequently bought from, (about 17 in total)

So just a simple word of advise, use common sense and don't be like this knucklehead. It wasn't until he sold over 30 firearms that he got a visit from ATF......... but if it was me, I wouldn't press my luck trying to sell that many firearms. In fact, I wouldn't dare selling anything close to that many firearms without an FFL....... but that is just me.