This week’s executive actions from the White House include new guidance on when a federal firearms license is required to sell guns, kind of.
Based on the Gun Control Act of 1968, current laws as regulated by the Bureau of Alcohol, Tobacco, Firearms and Explosives require persons who are “engaged in the business” of dealing in firearms be licensed.
Generally, if an individual repetitively buys and sells firearms with the goal of turning a profit, they do need a license while someone making occasional sales from a personal collection do not. Those violating such laws, if prosecuted and found guilty, face up to five years in prison, a fine up to $250,000, or both.
The ATF will not define how many gun sales would require someone to be licensed, relying instead on a host of other factors that accompany the unlicensed sale such as if the seller represents themselves as being “engaged in the business” through the use of advertising or business cards and other circumstances such as accepting credit card payments or quickly reselling recently bought firearms — though they do advise that one may break the law if these factors are present “when only one or two transactions took place.”
On Monday, the White House released a fact sheet on President Obama’s latest crop of gun control actions which included potential new direction that a person can be engaged in the business of dealing in firearms even if they only sell at gun shows or through the Internet and advised that, along with other factors, courts have upheld convictions for selling without a license “when as few as two firearms were sold.”
The ATF then followed up by posting late Monday the existing and unchanged guidance to explain what those factors are. When confused respondents argued for clarification, the ATF reiterated there was effectively no change on their end.
“None of the statutes involving the term ‘engaged in business’ have changed. This pamphlet is just another tool ATF has published featuring scenarios we are most frequently presented by the public,” the agency said, adding, “If you are selling from your personal collection, you do not need a license.”
This was followed by a press conference with the President on Tuesday where the guidance, seemingly stronger, was repeated.
“Number one, anybody in the business of selling firearms must get a license and conduct background checks, or be subject to criminal prosecutions,” the President said. “It doesn’t matter whether you’re doing it over the Internet or at a gun show. It’s not where you do it, but what you do.”
To help decode the confusion over the issue, Guns.com reached out to C.D. Michel, the senior counsel for Michel and Associates in Long Beach, California, the attorney behind a number of gun rights wins in federal court to include the Peruta“may-issue” challenge.
As Michel explained, the term at the heart of the matter has been long-standing. “The definition of ‘engaged in the business,’ and the exceptions that were thoughtfully and deliberately built into it when the law was first passed, have been litigated and interpreted by regulatory agencies, courts, lawyers, and gun owners for many years,” Michel said.
“As the legal meaning of the term became well settled over time, Congress accepted the interpretation and never saw a need to change the statute. Over the years the law’s requirements have become common knowledge and accepted practice among those who weren’t covered by the law,” he explained.
What concerns Michel is that, if the White House has directed a move to change the law from the Oval Office, the change itself would be illegal.
“Now, at the stoke of a pen by one politician with no law making authority under the constitution, the meaning of the law is unilaterally changed overnight, and tens of thousands of people will be deemed criminals if they do exactly the same thing they have been doing with the government’s blessing for years,” Michel said.
In the end, with no legal standing to change the law without undertaking the official — and lengthy — rule making procedure or going through Congress, all the President’s new conversation on transforming how “engaged in the business” is prosecuted falls short of reality.
Michel paints it as a bait and switch. “This presidential power grab, like other ill-conceived but heavily promoted gun ban proposals of late, is meant to distract people so they don’t realize that the government is powerless to protect us from terrorist attacks by the lone wolf religious fanatics,” Michel said.
“But more and more people are seeing through this political spin,” he said. “Millions of people now realize that no gun law can protect us from terrorists or violent criminals, and that their safety is their own responsibility. So are voting with their wallets, buying millions of firearms to protect themselves.”