Commentary: ATF Rule Change Creates a Trap for the Unwary

A selection of modern firearms on a table
by Christopher Roach


On Friday, the 31st anniversary of the massacre of Branch Davidians in Waco, Texas, the ATF issued new regulations that make it more difficult to comply with federal laws regulating gun dealing and background checks.

Since the 1930s, federal law has required gun dealers to be registered as Federal Firearms Licensees (FFL). The requirements hinged on the meaning of “engaged in the business of” gun dealing. This language has always been ambiguous, and there has never been (even after the announcement of the new rules) a true “bright line” that distinguishes when one graduates from selling a few guns from one’s personal collection into full-fledged gun dealing.

The law previously required the primary purpose of sales to be “livelihood and profit.” The new rules reduce the requirements to seeking profit alone, tracking the a congressional amendment to existing law in 2022. The changes are more extensive than the legislative guidance, though, by stating that selling guns in the original packaging or shortly after purchase create a rebuttable presumption of being “engaged in the business.”

The potential risk is substantial, as violations are felonies. Flipping a gun for a price higher than one paid, even if one originally intended to keep it, now may turn one into a dealer, making any such sale unlawful if it does not involve all the licensing and paperwork that govern FFLs.

The War on Gun Collecting

The new rule is the latest salvo in the ATF’s longstanding war on gun shows and private transfers. In the 1980s, the ATF wanted to make it easier to become a dealer because that meant fewer private transfers as well as more records and tax revenue. In those days, it only took $10 and filling out some forms to become an FFL. These were sometimes referred to as the “kitchen table” dealers, and the numbers of FFLs increased substantially.

Then, during the Clinton years, the ATF wanted to limit FFLs, so it began requiring a larger fee as well as a storefront. They realized a lot of guns were being sold by these guys, and these measures cut down FFLs considerably. Clinton thought gun control was a great wedge issue to peel off suburban moderates from the Republican coalition.

Now, with a Democrat again at the helm, the ATF wants to further limit private sales with the threat of criminal punishment by expanding the definition of gun dealing while leaving it vague enough to dissuade private sales.

Everything under the sun that is collected has a community and events associated with it, and this typically includes shows. Shows are places where people can buy, sell, trade-up, and learn about their hobby. Fishing, boating, cars, coins, beanie babies and every other hobby and collectable has shows.

Gun shows are particularly popular because guns tend to hold their value well, and lots of people collect guns. Since many gun owners are of modest means, many of these guns eventually need to be sold, taken to a pawn shop, or otherwise converted into money after they are purchased. Gun shows allow ordinary people to sell guns to other collectors and enthusiasts, whether they are dealers or not.

Background Checks Sound Good, But Accomplish Little

While the 1993 Brady Bill mandated FFLs conduct background checks on all transfers, private sales are unregulated. This is sometimes described incorrectly as the “gun show” loophole. Contrary to the propaganda, most sales at gun shows are conducted by FFLs, and all FFL sales include a background check. But, whether conducted at a gun show or a barbeque, private sellers transferring their personal firearms do not have to conduct a background check. As I was told by a cop when I was new to the game, selling a personal gun is like selling a toaster.

While this lack of regulation conjures images of shady back-alley transactions, these sales often involve family and friends, fellow collectors at a gun show, and sales to FFLs, who have already been thoroughly vetted when they were licensed. The only legal requirement is that a gun cannot be knowingly sold or transferred to a felon.

We have heard a lot in recent years about universal background checks as a cure for most criminal misuse of guns. This doesn’t sound crazy on its face. Most people support background checks because they don’t want guns in the hands of criminals and lunatics. Also, background checks are not particularly scary because most gun owners have been through many background checks when buying guns from FFLs or obtaining concealed weapons permits.

Even so, mandatory background checks would prevent the private sales that facilitate gun collecting as a hobby. Moreover, while background checks sound like they would stop illegal guns, they don’t seem to have much of an impact. There is an extensive black market for guns, and many criminals using guns are already prohibited possessors because of felony records.

One more law is unlikely to stop criminals from getting guns, and the inevitable failure of such a law will be used to provide support for a national gun registry, which is a necessary precursor to mass confiscation.

Letting Criminals Go Free While Turning the Law-Abiding Into Criminals

Like most gun control laws, reducing crime appears to be a secondary goal of the latest ATF move. But this change will have the effect of harassing and dissuading gun enthusiasts. The new and ambiguous regulations will have a chilling effect, making gun owners think twice before liquidating a personal collection or conducting a private sale. This will make gun ownership more expensive and less inviting to newcomers.

The law will also, through selective prosecution and strong pressure to turn people into confidential informants, destroy organic gun clubs and friend groups. Facing decades in prison, the pressure put on those caught in the net to become snitches will be tremendous. Government-sponsored sales, entrapment, and the creation of unintentional new criminals may become widespread in the same way it always is when federal law enforcement is involved.

The Democratic Left’s continuing pursuit of gun control is a bit of a surprise. In the 1990s, they hypothesized that it would get suburban moms to vote their way, but it has barely moved the dial as a wedge issue. Many thought it backfired, motivating gun owners in certain swing states to vote Republican.

That said, as with much of the left’s actions in education, popular culture, and sexual mores, any short-term political cost is outweighed by a longer-term and more sinister aspect. In this case, the accretion of rules and uncertainty surrounding gun collecting and trading undermines the networking, organic friendships, and cooperation that allow gun owners to organize and present a real threat to the leviathan state.

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Christopher Roach is an adjunct fellow of the Center for American Greatness and an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, Chronicles, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.
Photo “Modern Firearms” by USCCA.



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