How do simple folk know not to buy and sell guns for profit??

[bushmaster1313]

How would someone who does not follow the Legal Forum on THR know that it is illegal to engage in the business of buying and selling firearms for a profit?

For example, an otherwise upstanding citizen could easily think it perfectly legal to try and make extra money by scouring the Internet auctions and gun shows for good deals, receive all purchases via legal transfer through an FFL, resell the guns online for a profit, and ship all guns to the buyers for legal transfer through an FFL.

Each and every individual action would be perfectly legal, but in toto it would be a felony.

Are there convictions out there of people who were ignorant of this nuance in the gun laws?

 

[guyfromohio]

Que?

 

[cbrgator]

Ignorance of the law is not an excuse.

 

[bushmaster1313]

Two questions:

1) Other than this Forum, how do folks find out that they should not try to repetitively buy and sell guns for a profit, even if done through FFL's?

2) Are there convictions of people who were just trying to make some extra money buying and selling guns through FFL's?

Other people who could easily get into inadvertent trouble would be stock refinishers and engravers.

 

[InfamousLegend]

I honestly did not know this was illegal, and personally it shouldnt be but whatever.

 

[Jorg Nysgerrig]

Where did you get the idea that one can't sell a gun for profit?

Now if you want to do as you are saying and it falls under this: a dealer in firearms, as defined in section 921 (a)(11)(A), a person who devotes time, attention, and labor to 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 firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms; , then you need an FFL.

The situation you describe sounds entirely contrived. I'm afraid I can't imagine someone who has the market knowledge necessary to recognize the good deals you suggest, but is blissfully unaware there are specific laws surrounding dealing in firearms.

 

[guyfromohio]

Copy of said law please.

 

[bushmaster1313]

18 U.S.C. 922:

(a) it shall be unlawful—
(1) for any person—
(a) except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce; or

18 U.S.C. 921:

(21) the term "engaged in the business" means -

(c) as applied to a dealer in firearms, as defined in section
921(a)(11)(a), a person who devotes time, attention, and labor to
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 firearms, but such term shall
not include a person who makes occasional sales, exchanges, or
purchases of firearms for the enhancement of a personal
collection or for a hobby, or who sells all or part of his
personal collection of firearms;

Be careful out there

 

[bikemutt]

If a person wishes to engage in business then surely the prospect of a business license must cross their mind. My line of work does not involve firearms commerce but I still knew enough to obtain a business license from the municipality where I conduct my business, and by extension from the good state of WA. So, I suppose if I were to consider engaging in the business of trading in firearms, I'd get a license, an FFL.

 

[bushmaster1313]

I am talking about the person who would not have ever thought that they were engaged in the business of dealing in firearms.

A stamp or coin collector who does a lot of buying and selling with the hope of making a small profit could be a felon with the same amount of activity in otherwise perfectly legal gun purchases.

 

[bushmaster1313]

The need to get a local business license is what keeps many collectors from getting an FFL license

It is very important that ordinary collectors know that there is an ill-defined line between collecting and dealing and that they need to stay well on the collecting side if they do not have an FFL.

Here is an example of a conviction that was affirmed:

http://law.justia.com/cases/federal/appellate-courts/F2/485/234/399535/

 

[OcelotZ3]

There are a number of collectors who are aging and now selling their collections off at gun shows, without a license. So they are *selling* (not buying/selling), and no doubt making a profit, but I believe it is perfectly legal for someone to dissolve their collection at some point in time.

 

[CapnMac]

What, not one comment on those businesses which seem to be in the business of GOOB (nor an associated pun on goober)? We are slipping.

18§921 says you can liquidate your own collection up to and including entire. 18§922 says you cannot GooB for fun and profit.

The question that might have been posed is "How do simple folk even begin to know what the "gun laws" are?

There are over 20,000 titles, regulations, rules, ordinances, laws and the like out there. Many of which change depending upon which side of a city limit, county line, etc. one is standing.

And, "our" side has been backed--by "reasonable compromise"--into a corner of our franchise is granted only for so long as we are in perfect compliance with all of the laws, even the ones we do not exist.

 

[kozak6]

It's a strange scenario.

Someone diligent and knowledgeable enough to actually do so, particularly online, and even deal with an FFL in the process would know exactly what he was doing.

"I didn't know it was wrong!" seems like patent nonsense to me. Buying and selling guns for profit is serious business. Even if someone claims they didn't know, anyone doing so has a critical need to know the laws involved and should have known.

Hugh Crumpler III got busted and claimed exactly this, although it's less believable in his case.

 

[Bubba613]

When the ATF shows up on their doorstep and tells them to cut it out is usually a pretty good indication.
You can certainly sell guns for profit. The key is engaging in the business primarily for that purpose. What defines that exactly? Don't know. But they know it when they see it.

 

[rio nueces]

"(21) the term "engaged in the business" means -

(c) as applied to a dealer in firearms, as defined in section
921(a)(11)(a), a person who devotes time, attention, and labor to
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 firearms, but such term shall
not include a person who makes occasional sales, exchanges, or
purchases of firearms for the enhancement of a personal
collection or for a hobby, or who sells all or part of his
personal collection of firearms;"

This law is as clear as mud, and probably written that way on purpose to allow maximum leeway for prosecutors to pick and choose based on personal or political biases, and maximum profit for defense attorneys...

Please tell me exactly how much "time, attention, and labor"?
What constitutes a "regular course of trade or business"?
What number is a "repetitive purchase and resale of firearms"?

 

[beatledog7]

This law is as clear as mud, and probably written that way on purpose to allow maximum leeway for prosecutors to pick and choose based on personal or political biases, and maximum profit for defense attorneys...

We elect scads of attorneys to our legislatures, then expect that they won't make laws that favor the interests of attorneys?

I'm not an attorney, just a rational person. If I bought a shotgun years ago for $400, and found that I was using it very little, and decided to sell it to my friend down the street at an agreed price of $450, USC does not come into play. Depending on where we live, there could be State laws governing said transaction, but USC is moot because there is no way this random, isolated sale is covered under the law as quoted.

If I did this regularly, it would become relevant. But once in a blue moon? No.

 

[Salmoneye]

The need to get a local business license is what keeps many collectors from getting an FFL license

It is very important that ordinary collectors know that there is an ill-defined line between collecting and dealing and that they need to stay well on the collecting side if they do not have an FFL.

Here is an example of a conviction that was affirmed:

http://law.justia.com/cases/federal/appellate-courts/F2/485/234/399535/

the defendant worked in the sporting goods department of a discount store. Because the store did not accept used guns as trade-ins, the defendant on occasion would personally buy the customer's used guns so that the customer could apply the proceeds to the purchase of a new gun at the store. The defendant sold six of the guns he had acquired in this way to the police and five firearms were sold to other persons. In light of these facts, the court found that there was sufficient evidence that the defendant was acting as an unlicensed "dealer" in violation of 18 U.S.C. Sec. 922(a)(1).

 

[jackpinesavages]

What has been copy/pasted states it would be a source of profit and livelihood, ie, it is how you make a living. There's nothing unclear about it.

 

[jackpinesavages]

The Treasurer of one of our local clubs also works at a Gander Mt. gun counter.

He personally buys many "pawn" guns over that counter and has them "transferred" to another Gander Mt. to avoid local ordinances on buying used firearms: photocopy of DL and photo. of seller. If he can do it (buy) in the wide open, then turn around and sell them at their club's (2) annual gun shows? He has no FFL and no LLC.

 

[Andy's place]

to those suggesting getting an ffl to cover the sale of a few guns a ffl holder has to sell more than an occasional gun this i know because i lost mine and there is no magic number to satisfy them i had sold only 15 that year

 

[JohnBT]

"The defendant sold six of the guns he had acquired in this way to the police and five firearms were sold to other persons"

And that looks like the tip of the iceberg. He certainly wasn't just selling his collection or the occasional personal gun he had grown tired of. John

http://law.justia.com/cases/federal/appellate-courts/F2/485/234/399535/

"the record shows that Wilkening regularly attended flea markets and gun sales, and often sold on one day a weapon acquired by him on the day before. Although some of the guns he acquired and sold were collector's items, many were ordinary guns. Further, a witness testified that when the appellant sold him a derringer, the appellant told him that this gun was a fast-moving item and that he had sold as many as 50 just like it, as many as three of them in one gun show.¶9

The evidence here suffices to show Wilkening as one who engaged in the business of dealing in firearms within the purview of Sec. 922(a)(1)"

 

[Andy's place]

i should explain i moved locations applied for the new location and the remainder of my license had to be surrendered or the agent said they would take it seems the best way to stay in good graces was to give it up

 

[bushmaster1313]

I agree with JohnBT.
The facts reported in the case appear to only be small amount of what this defendant was doing.

On the other hand the law is written as a trap for the unwary

 

[Carl N. Brown]

Long standing complaint about the 1968 Gun Control Act (now Title I of the federal firearms regulations) is that dealer "engaged in the business" is very gray. You cannot get an FFL to liquidate a gun collection, but supposedly you can legally sell off a personal collection as long as you have no reason to believe the purchaser(s) are prohibited from buying a gun from a dealer. However, at least one federal judge ruled that ATF only has to prove one gun sale to prove a case.

What is often the death-knell on a person "dealing without a license" is when they come to the attention of authority through a "street rep" as an unquestioning source of weapons to people who could not buy through an FFL, especially if one of those people gets busted in a crime.

Not long ago, we had a guy busted as illegal dealer who showed up at the local flea market month after month, year after year, to "liquidate" his "private collection".

You also have to remember that before the 1968 GCA, states had regulations on gun dealers, especially handgun dealers; many states kept those state laws, so FFLs also have to comply with state regulations on gun dealers also. Persons "engaged in the business" of buying and selling guns as source of income also need to be aware of any state or local laws that may apply.

http://www.atf.gov/regulations-rulings/rulings/atf-rulings/atf-ruling-96-2.pdf

Question: Do auctioneers need an FFL for estate or consignment sales?

ATF Ruling 96-2 (active) has a restatement of the definitions:

Section 923(a), Title 18, U.S.C., provides that no person shall engage in the business of dealing in firearms until he has filed an application and received a license to do so. Section 922(a)(1), Title 18, U.S.C., provides that it is unlawful for any person, other than a licensee, to engage in the business of dealing in firearms. Licensees generally may not conduct business away from their licensed premises.

The term “dealer” is defined at 18 U.S.C. § 921(a)(11)(A) to include any person engaged in the business of selling firearms at wholesale or retail. The term “engaged in the business” as applied to a dealer in firearms means a person who devotes time, attention, and labor to 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 firearms. A dealer can be “engaged in the business” without taking title to the firearms that are sold. However, the term does not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms. 18 U.S.C. § 921(a)(21)(C).

Bottom line of the ruling was:

Held: Persons who conduct estate-type auctions at which the auctioneer assists the estate in selling the estate’s firearms, and the firearms are possessed and transferred by the estate, do not require a Federal firearms license.

Held further: Persons who regularly conduct consignment-type auctions, for example, held every 1-2 months, where the auctioneer takes possession of the firearms pursuant to a consignment contract giving the auctioneer the exclusive right and authority to sell the firearms at a location, time and date to be selected by the auctioneer and providing for a commission to be paid upon sale are required to obtain a license as a dealer in firearms pursuant to 18 U.S.C. § 923(a).

That's how it affects auctioneers.

IANAL, but the situation in the opening post, following auctions and gunshows to find bargains and resale them for the purpose of making money is "engaged in the business" and not "occasional sales" incident to personal collection or hobby interest in guns. Going through FFLs on receiving and selling ends may get you a warning from ATF if you are lucky. But the fact that the seller has made an effort to avoid selling to prohibited persons does not change the fact the buying and selling is done as a business.