Private firearm sales (without background checks) are legal for long guns in 42 states and for handguns in 32 states—even using data from the Giffords law center.[i] Representatives of Americans living in states with Universal Background Checks might imagine that their constituents are therefore unaffected by the ATF’s new rule. Unfortunately, the ATF’s new rule is so backwards and outrageous, constituents could go to jail even if they sell a firearm by going to a gun store where the local Federal Firearms Licensee run a background check.
Criteria for Needing a License Under ATF’s New Rule
ATF’s interpretation of who needs a gun dealer license has been greatly expanded by the new ATF rule.[ii] Outrageously, the rule even treats many gun owners as guilty until proven innocent.[iii] GOA has identified over a dozen situations where a gun owner might engage in completely lawful behavior and yet be presumed to have violated the law (and have illegally dealt in firearms without a license).[iv] For example, a gun owner is presumed to have violated the law if they make even a penny of a profit off of a firearm they bought and later sold.[v] This is what can get you in trouble, even for a gun owner complying with a state’s unconstitutional Universal Background Check law.
How A Private Sale Might Have Lawfully Taken Place in a State With Universal Background Checks
To sell a gun in a state with Universal Background Checks,[vi] a gun owner needs to go to a Federal Firearms Licensee (FFL). The FFL will take the firearm to be sold into inventory, then the FFL will run a background check on the potential buyer for the private seller. The buyer fills out a Form 4473 (to permanently register the firearm with ATF) and the dealer contacts the FBI’s National Instant Criminal Background Check System (NICS). If the buyer is approved, the FFL will transfer the firearm to the buyer. If not, the dealer will keep the firearm or transfer it back to the original seller (again with a Form 4473 and a NICS check).
Gun Owners Can Now Be Jailed for Profiting From Guns Sold With a Background Check
However, ATF’s new rule does not allow Americans to buy and sell guns so long as they run a background check. Instead, ATF says that anyone who makes even a penny of profit from buying and selling a single firearm needs a federal firearms licensee. Therefore, even if a private seller in a UBC state complies with the law and goes to an FFL to run a background check, he or she may still be “engaged in the business of dealing in firerams without a license” and be subjected to a lengthy jail sentence of 5 years in a federal prison per “illegal” sale.[vii] A gun store who transferes the firearm might even be charged with aiding and abetting an unlicensed gun dealer.[viii]
Even before the ATF’s rule went into effect, ATF intimidated gun owners and gun stores into pleading guilty for “engaging in the business” as a dealer in firearms while running background checks at a FFL. For example, a former FFL asked an active FFL to help run background checks at a gun show and to keep all the records required by law. ATF said the former FFL “did willfully engage in the business of dealing in firearms” and that the active FFL who ran the background check “aided and abetted in said business.”[ix]
Indeed, ATF’s rule says that even an offer to engage in a transaction might be enough to violate the law.[x] So a gun owner, who doesn’t understand ATF’s new rule, might offer to a friend “Hey, I don’t like the gun I bought last month; if you want, I can sell it to you at our local gun store with a background check” and end up in a federal prison for 5+ years.
[i] Giffords Law Center. Universal Background Checks. Giffords Law Center.
[ii] https://www.gunowners.org/busting-gun-control-lobby-myths-about-atfs-new-rule/
[iii] https://www.gunowners.org/four-reasons-a-federal-court-found-atfs-engaged-in-the-business-rule-to-be-illegal/
[iv] https://www.gunowners.org/19-lawful-but-presumptively-illegal-firearm-transfers-under-atfs-new-rule/
[v] Ibid.
[vi] See Virginia State Police. “Virginia Firearms Transaction Program”.
“Private Sale Transactions”
“No person shall sell a firearm unless he has obtained verification from a licensed dealer in firearms that information on the prospective purchaser has been submitted for a criminal history record information check as set out in § 18.2-308.2:2 and that a determination has been received from the Department of State Police that the prospective purchaser is not prohibited under state or federal law from possessing a firearm or such sale is specifically exempted by state or federal law.”
[vii] 18 U.S.C. 924(a)(1)(D).
[viii] See U.S. v. Dickerson and Waltman. U.S. District Court for the Southern District of Mississippi. 1:10-CR-00012.
[ix] Ibid.
[x] https://www.gunowners.org/major-issues-with-atfs-new-unconstitutional-engaged-in-the-business-rule/
