New concerns surround ATF's new "gun dealer" definition

AP Photo/Keith Srakocic

The Bipartisan Safer Communities Act set up some dangerous groundwork. It lets the ATF redefine who is and who isn’t a gun dealer.

For some time, the definition meant someone who was trying to earn a livelihood and profit through the sale of firearms. It didn’t require they be good at it, just that they were trying.


To be fair, that’s how most of us would probably define it, even if it was just a part-time gig.

But now, the term is slated to potentially mean anyone who makes a profit at all, and there’s little guidance on just how that will be determined. For example, if you buy a used handgun today, and five years later you sell it, both at fair market price, inflation alone could account for you taking in more than you spent on the firearm.

Yet the ATF may determine that to be a profit, despite the difference just being due to differences in the dollar.

If that was the only concern, though, it would be enough. It’s not, though.

Over at the Volokh Conspiracy, Stephen Halbrook brings up some things about the proposed rule change that cause me some serious concerns.

As noted, the GCA defines the terms “to predominantly earn a profit” to mean a predominant intent to obtain pecuniary gain, not other intents, such as improving or liquidating a personal firearms collection. ATF makes up a list of actions that create a presumption that this definition is met, such as “rents … temporary physical space to display … firearms they offer for sale, including … a table or space at a gun show.” The GCA makes no such presumption, and in fact many who display at gun shows are there to improve a collection, or just to gab with persons who happen by about political topics, such as how ATF “is at it again.”

The new rule purports to narrow the term “personal collection,” which Congress did not limit, to “personal firearms that a person accumulates for study, comparison, exhibition, or for a hobby.” Somehow “self-defense” didn’t make the cut, although that’s a predominant reason to acquire firearms. As the Supreme Court stated in D.C. v. Heller, “the inherent right of self-defense has been central to the Second Amendment right,” and handguns are “overwhelmingly chosen by American society for that lawful purpose.”


Now, let’s keep in mind that most of us buy guns for self-defense. When surveyed, that’s the reason most give for having their firearms. To exclude that from the definition of a personal collection is more than a little troubling. It seems to suggest the ATF doesn’t see that as a valid reason to own a number of firearms despite different guns being ideal for different scenarios.

Yet that’s not the totality of the issue, just one that I find rather telling.

Then there’s the fact that many collectors buy guns in hopes that they’ll increase in value.

The rule adds that the term “personal collection” “shall not include any firearm purchased for the purpose of resale or made with the predominant intent to earn a profit.” But collectors in general buy guns with the purpose of eventual resale when they locate and can afford guns of ever-higher quality and rarity, and they certainly intend to sell guns for more than they paid as the collection moves up the ladder. And any gun owner would hope that the value of his or her firearms will increase in value, even if only to be sold by the heirs at a profit.

This rule, including things I’m not getting into in this post, would require anyone who hopes to do such a thing to get an FFL at some point or another.

That could well include people like you or me.

Yet doing so opens us up to a different kind of problem. In particular, when you get an FFL, you agree to certain things.


The GCA requires a license to be a dealer in firearms, and a dealer is obliged to fulfil various requirements. The dealer waives Fourth Amendment rights to the extent the GCA authorizes ATF inspection during business hours on the licensed premises of required records and firearm inventory. The dealer waives the Fifth Amendment privilege against self-incrimination to the extent the GCA requires the keeping of records of firearm transactions.

As the proposed regulations attempt to push more of the people into the dealer category, Second Amendment concerns arise. While a handful of states require a license or ID for mere possession of a firearm, that arguably violates the right. So too would the right be violated if gun owners are subjected to unannounced inspections by authorities at their homes, an affront that European gun owners suffer. And while California now requires registration of most firearms, Congress has regularly rejected registration of firearms, and by implication requiring recordkeeping by gun owners.

If nearly all gun owners are required to get a license if they decide to sell any firearm they have–and most of us have sold a gun or two–then we’re essentially giving up our constitutional rights with regard to the Fourth and Fifth Amendments, even if only in a limited capacity.

At every level, this proposed rule–one that might look simple to those who are unfamiliar with how these kinds of things work–could have a significant and far-reaching impact that could undermine the basic freedoms we as gun owners currently enjoy.


What’s more, this isn’t from a single act of Congress. It’s from several with a healthy dose of ATF and DOJ overreach thrown in for flavor.

This is why we shouldn’t give even a little ground on gun issues. It’s because it’s never just that and it will come back to bite us in the butt.

As it stands, there’s still time to comment on the ATF’s proposed rule. We have until December 7th to do so and I encourage you to comment. I don’t expect anyone to listen, but still…

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