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.
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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