Obama's "New" Background Checks Executive Action

RKG

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After all the hoopla, our President's "new" action with respect to who is a "firearms dealer" (and who, therefore, is required to make a NICS check before completing a sale) comes down to an AFT "Guidance" document. The document can be found here:

http://www.foxnews.com/politics/2016/01/05/atf-guidance-on-who-qualifies-as-firearms-dealer.html

A couple of observations:

One: the "Guidance" document starts with this language:

"The guidance set forth herein has no regulatory effect and is not intended to create or confer any rights, privileges, or benefits in any matter, case, or proceeding, see United States v. Caceres, 440 U.S. 741 (1979)." (Emphasis added.)

In other words, no change has been made in any applicable law. No one who was not a dealer before this "executive action" becomes a dealer by virtue of it. Sort of an interesting way to "close" a supposed "loophole."

Two: The "Guidance" is inconsistent with other regulations promulgated by ATF. The "Guidance" purports render certain folks "dealers" who, in the "examples" provided, do not have sales "premises" and do not make sakes from any such "premises." Per the guidance, such folks require a federal firearms dealer's license. However, the FFL regulations require, to get such a license, that the applicant have "a premises for doing business." Indeed, as a consequence of this requirement some years ago, ATF began refusing to renew the licenses of so-called "tabletop dealers" because they weren't really dealers. Er, you can't have it both ways.

The bottom line, though, is that the concept of "doing business" has been around legal circles for decades (in contexts having nothing to do with firearms), and the crux of the federal statute requiring an FFL is whether the person is "doing business" as a dealer. For the most part, the ATF interpretation of what is "doing business," which really isn't new, is pretty consistent with what the Courts have held: repetition, means of making a living, and the like. In short, it was never clear that the so-called "gun-show loophole" was legally defensible to begin with.
 
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Horrible

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Great post and link. From the link:

As a general rule, you will need a license if you repetitively buy and
sell firearms with the principal motive of making a profit. In contrast, if you only make occasional sales of firearms from your personal collection, you do not need to be licensed.
Not sure exactly how many constitute "occasional sales" but it may be tough to argue that you are need an FFL if you are not making a profit.
 

RKG

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Great post and link. From the link:



Not sure exactly how many constitute "occasional sales" but it may be tough to argue that you are need an FFL if you are not making a profit.
I don't think (but, of course, who knows?) that the fact that Seller made a "profit" (i.e., sold Firearm X for more than he paid for it) is all that significant. After all, no "rational seller" sells anything for less than the market will pay for it.

The legal issue, rather, would be why Seller sold the Firearm X. If, for instance, he's out of space in his safe and needs room for the new Glock 89th Gen .500 S&W double stack, then the sale is not evidence of being "in the business" of selling firearms. Ditto if his problem is not space in the safe but space in the budget. ("Yes, dear, you can buy the Glock, but only if you sell something else to pay for it.")

On the other hand, if Seller B spends a month buying guns (from wherever) that he thinks is under priced, for the purpose of selling the bunch at the next Beacon Hill Gun Show, and does this on a regular basis in order to pay for rent and groceries, then isn't it hard to argue that he is not "in the business" of selling firearms?

The real crunch in all of this is that, as things stand today, the Feds take the position that you can't be in the business of selling firearms without an FFL, but you can't get an FFL absent a storefront. This translates into a regulatory requirement that "You can't deal firearms without a storefront." Two problems with this. No. 1, there is nothing in the statutes enacted by Congress that outlaw tabletop dealers (and only Congress can enact laws). No. 2: this isn't a new problem, and it wasn't created by Obama's squib "Guidance" document.
 
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What about the background checks doesn't Massachusetts already do mental health Check
 
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What about the background checks doesn't Massachusetts already do mental health Check
None of this stuff will really affect MA. We already have the licensing system and controlled personal transfers (eFA-10 system). In free states, one person can walk up to another, say, I like that rifle, want this cash?? and walk away with a new rifle, no license or forms or background checks required. Those are the places that might see some change, but they probably won't.
 

Picton

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None of this stuff will really affect MA. We already have the licensing system and controlled personal transfers (eFA-10 system). In free states, one person can walk up to another, say, I like that rifle, want this cash?? and walk away with a new rifle, no license or forms or background checks required. Those are the places that might see some change, but they probably won't.
This.

You can stop reading at the top of page 4, where it says "Federal law does not establish a 'bright-line' rule for when a federal firearms license is required." In other words, this guidance changes nothing. At all.

What a waste of time.
 
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None of this stuff will really affect MA. We already have the licensing system and controlled personal transfers (eFA-10 system). In free states, one person can walk up to another, say, I like that rifle, want this cash?? and walk away with a new rifle, no license or forms or background checks required. Those are the places that might see some change, but they probably won't.
There might be a few stings at a gun show, on a few websites but that's it and depending on the facts of any arrest, it may get tossed by a judge.

Here is a thug, formerly of the ATF, he says this doesn't change a thing. He whines that the ATF has the same number of agents as it had in the 1970's (2600) and even if obama adds 200 more, it's nothing.


All this is, is a restatement of existing federal law with maybe a little more stings. And that assumes these things are even written, if they need to go through a public notice process, it will take 6 months or more to go into effect.

Summary from Katie Pavlitch.


http://townhall.com/tipsheet/katiep...obama-previews-his-gun-control-plans-n2099836
 
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I was speaking strictly about the background check

- - - Updated - - -

And the new mental health laws
 

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There might be a few stings at a gun show, on a few websites but that's it and depending on the facts of any arrest, it may get tossed by a judge.

Here is a thug, formerly of the ATF, he says this doesn't change a thing. He whines that the ATF has the same number of agents as it had in the 1970's (2600) and even if obama adds 200 more, it's nothing.


All this is, is a restatement of existing federal law with maybe a little more stings. And that assumes these things are even written, if they need to go through a public notice process, it will take 6 months or more to go into effect.

Summary from Katie Pavlitch.


http://townhall.com/tipsheet/katiep...obama-previews-his-gun-control-plans-n2099836
Let's not hold our breathe waiting for Congress to use the power of the purse to protect our freedoms. Never happens. If the Rs had guts they would cut the ATFs budget.
 
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LoginName

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What about the background checks doesn't Massachusetts already do mental health Check
It used to be on the background check checklist (I don't know if it still is), but the MA department of health rarely... if ever, complied with any
requests.
 

PATRON

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When Obama started to cry I was just waiting for a Marine to have to come over to wipe his tears.This guy is so sad.
 
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Let's not hold our breathe waiting for Congress to use the power of the purse to protect our freedoms. Never happens. If the Rs had guts they would cut the ATFs budget.
There isn't the funding now, so the congress would need to provide it, they won't.

Also, the R in charge of the committee with budget ovwrsight of the AFT said if obama does anything that violates the law and gun rights, he will withhold funds. He was very stern in his statement. (He's from Texas)
 
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