YOU CAN STILL OBJECT TO THE ATF ATTEMPT TO REGISTER PRIVATE GUN SALES.

Below is the letter from GRNC President Paul Valone to the ATF regarding Notice of Proposed Rulemaking 2022R-17. YOU MAY STILL COMMENT BEFORE MIDNIGHT TONIGHT by going to: https://www.federalregister.gov/documents/2023/09/08/2023-19177/definition-of-engaged-in-the-business-as-a-dealer-in-firearms 

December 7, 2023

Helen Koppe, Mail Stop 6N–518

Office of Regulatory Affairs, Enforcement Programs and Services

Bureau of Alcohol, Tobacco, Firearms, and Explosives

99 New York Ave. NE

Washington, DC 20226

ATTN: ATF 2022R–17.

GRNC comment on NPRM 2022R-17

On September 8, 2023, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) published Notice of Proposed Rulemaking (NPRM) 2022R-17 (88 FR 61993), entitled “Definition of Engaged in the Business as a Dealer in Firearms.” ATF has sought public comment on its proposal by December 7, 2023.

The following comments are submitted on behalf of Grass Roots North Carolina (GRNC). Comprising approximately 23,346 members, GRNC is a non-profit membership organization which is exempt from federal income taxes under IRC Section 501(c)(4). Formed in 1994, GRNC is dedicated to preserving constitutional freedoms. GRNC’s projects are primarily, but not exclusively, devoted to defending the individual right to keep and bear arms as affirmed in the Second Amendment.

The following comments are made pursuant to NPRM 2022R-17. While purporting to implement the Bipartisan Safer Communities Act (“BSCA”), which became effective June 25, 2022, in truth the ATF seeks to circumvent Congress and the legislative process as mandated by Article I, Section 1 of the United States Constitution. Consequently, the NPRM should be withdrawn and the proposed changes abandoned. If the proposal is implemented, GRNC will legally challenge the unconstitutional regulation.

Original definition of ‘engaged in the business’

The 1986 McClure-Volkmer Firearm Owners’ Protection Act (“FOPA”) defined “engaged in the business” as:

“…a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

FOPA further defines the term “with the principal objective of livelihood and profit” by saying:

“…the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection.”    

BSCA change in definition

The BSCA amended “engaged in the business” by changing the phrase “with the principal objective of livelihood and profit” with the phrase “to predominantly earn a profit”, further eliminating the word “livelihood” from the definition “obtaining livelihood and pecuniary gain”.

Far from merely implementing the BSCA by clarifying what constitutes “engaged in the business” of selling firearms, NPRM 2022R-17 represents an attempt by the Biden administration and ATF to expand the definition to wrongfully encompass virtually all private gun sales.

By failing to include the number of firearms sold which would define a dealer, the ATF has once again created a nebulous moving target under which citizens could never be sure they aren’t violating the law with the intention of suppressing lawful private sales and with them, the exercise of rights guaranteed by the Second Amendment. As evidence, the NPRM says: “even a single firearm transaction, or offer to engage in a transaction, when combined with other evidence, may be sufficient to require a license.” [Emphasis added]

Examples of potential abuses

The following otherwise lawful private transfers would subject lawful citizens to prosecution:

Example 1: Because one of the proposed definition of a firearm dealer is that he “sells or offers for sale firearms, and also represents to potential buyers or otherwise demonstrates a willingness and ability to purchase and sell additional firearms”, the following would subject a lawful citizen to prosecution: “I need money to settle my divorce. That’s why I’m selling this Colt 1911. If you like this one, I also have another with a consecutive serial number. Yeah, I’m losing money on them, but I need the cash.”

Example 2: Similarly, if I as a private seller buy two “lemons” – firearms which do not work properly or fulfill their intended role – and sell them within 30 days, I could be prosecuted because “repetitive” (which could mean two) sales of firearms within 30 days of purchase would be included in the definition of firearm dealer.

Example 3: If I sell two pristine antique firearms (within any period of time) for which I have the good fortune to have the original box (which enhances the gun’s value), I would be subject to prosecution, since the proposed definition of firearm dealer includes sale of guns “like new in their original packaging.”

Example 4: If I sell a small collection of highly valuable 19^th Century Winchester lever action rifles, I would be subject to prosecution, since the proposed definition of firearm dealer includes guns “that are of the same or similar kind (i.e., make/manufacturer, model, caliber/gauge, and action) and type (i.e., the classification of a firearm as a rifle, shotgun, revolver, pistol, frame, receiver, machinegun, silencer, destructive device, or other firearm).”

Example 5: My child, who is not a firearm enthusiast, inherits my firearm collection, which he or she chooses to sell by auction or other private sale within 30 days, he or she would be subject to prosecution under the language mentioned in Example 2 above.

Example 6: I am a retiree with little or no “reportable gross income” who spends $200 to advertise in GunBroker.com or a similar publication. I would be subject to prosecution because the proposed definition of firearm dealer includes anyone who “spends more money or its equivalent on purchases of firearms for the purpose of resale than the person’s reported taxable gross income during the applicable period of time.”

Example 7: I am short on money, so I rent a table at a gun show to sell my guns. Under the proposed rule, I would be subject to prosecution because the proposed definition of firearm dealer includes anyone who “purchases, rents, or otherwise secures or sets aside permanent or temporary physical space to display or store firearms they offer for sale, including part or all of a business premises, table or space at a gun show, or display case.”

NPRM perverts both law and the Second Amendment

Moreover, in violation of principles of jurisprudence, I would be presumed guilty and have to prove my innocence, since: “any one or a combination of the circumstances above gives rise to a presumption in civil and administrative proceedings that the person is engaged in the business of dealing in firearms

and must be licensed under the GCA.” Moreover, although the arbitrary presumption of guilt would not directly apply to criminal prosecution, the NPRM casts it as “useful to courts in criminal cases when instructing juries regarding permissible inferences.”

Even more bizarre, the presumptions created by NPRM 2022R-17 dictate that a firearm sale need not actually occur. Thus, if I offer the pristine antique firearm in a box from Example 3 above to one buyer who declines to buy, and then to another potential buyer, I have violated the law and am subject to criminal prosecution.

Although NPRM 2022R-17 claims, “The Department is therefore providing objectively reasonable standards for when a person is presumed to be ‘engaged in the business’ to strike an appropriate balance that captures persons who should be licensed, without limiting or regulating activity truly for the purposes of a hobby or enhancing a personal collection,” in truth the proposed regulation would inevitably subject hobbyists and collectors to criminal prosecution.

NPRM 2022R-17 says, “…this rule proposes to define ‘personal collection,’ ‘personal collection of firearms,’ and ‘personal firearms collection’ as ‘personal firearms that a person accumulates for study, comparison, exhibition, or for a hobby (e.g., noncommercial, recreational activities for personal enjoyment such as hunting, or skeet, target, or competition shooting).’”

Notably absent, however, are the two real motivations of the Framers in drafting the Second Amendment: as a safeguard against governmental tyranny, and for self-defense. Moreover, the ATF has no statutory authority to create definitions, but is instead limited to interpreting statutory language passed by Congress.

Why NPRM 2022R-17 should be rejected

The proposal represents clear usurpation of powers delegated, under Article I, Section 1 of the Constitution, to Congress, including the following:

1. The proposal does not intend to “clarify” the law; in truth, it represents an effort by the Biden administration to unconstitutionally institute “universal background checks” – i.e. requiring all firearms transfers to be processed by the National Instant Background Check System (NICS) with the intention of turning NICS into a national gun registry. A recent congressional Freedom of Information Act (FOIA) request discovered that ATF retained (at that time) 920 million firearm transaction records, suggesting that ATF is already well on its way to compiling a firearm registry in violation of Gun Control Act of 1968, Firearms Owners Protection Act of 1986, and the Brady Handgun Violence Reduction Act of 1993. Because background checks have not been found to reduce violent crime, the logical conclusion is that “universal background checks” are intended primarily to facilitate national gun registration.

2. Far from merely “interpreting” statutes created by the GCA, the FOPA and the BSCA, the proposal creates new definitions (e.g. “responsible person” and “personal firearms collection”), delving into the role of legislating, which is properly delegated to Congress.

3. Because the BSCA specifically defines terms such as “engaged in the business,” and “predominately earn a profit,” ATF lacks authority to “define” more narrowly or more expansively – in effect, to redefine – those statutory definitions, especially in furtherance of a political agenda.

4. By purposely and vaguely narrowing the definition of “engaged in the business” adopted in the BSCA, thereby creating ambiguity over what does or does not violate the law, ATF is deliberately suppressing the exercise of rights under the Second Amendment, including the ability to purchase, trade, or sell personally owned firearms.

5. Currently, 18 U.S.C. § 921(a)(11) defines the term “dealer” as “… any person engaged in the business of selling firearms at wholesale or retail.” [Emphasis added] Yet the proposed regulation would define “dealer” as someone who might engage in the sale of a single firearm, rather than multiple firearms as defined in the statute.

6. The proposal specifically violates the existing provision for private sales wherein the definition of firearm dealer “shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

7. In a bizarre perversion of both logic and legal precedent, the proposal would create “presumptions” of “engaged in the business” and “to predominantly earn a profit” which would require citizens to prove their innocence over perfectly legal behavior.

Summary

In sum, NPRM 2022R-17 represents nothing more than a politically motivated attempt to further restrict private gun ownership through arbitrary, capricious, and unconstitutional regulation of private gun sales which is both a violation of the intent of Congress and likely to result in prosecution of otherwise lawful citizens. Accordingly, on behalf of the 23,346 members of Grass Roots North Carolina, I demand that you immediately rescind the proposal.

Respectfully,

F Paul Valone

President, Grass Roots North Carolina