Unlicensed used gun dealers
By: Joshua Gideon
I consider myself a Constitutional Conservative with a hard line on 2nd Amendment Rights. I feel that ever American should have the “right” to own a firearm for defense against any hostile threat against them (including the Government). At the same time I am a strong supporter of Law Enforcement (notice I didn’t say law makers). I believe that as a sworn Law Enforcement officer they have a duty to enforce the laws of the land. They are to be an impartial enforcer and if we object to the laws, we are to go to the lawmakers to change them. I don’t believe what I feel is too far off from what the average gun owner feels.
In the past couple years I have seen an amazing shift in the gun culture. We have seen an increase in people purchasing firearms and getting training. States we thought would never turn to letting their Citizens carry firearms; now have permit programs in place. No, it’s not Constitutional carry, but it is progress in the right direction. With these new converts, we as the gun culture have to be careful how we present ourselves. The media and anti-gun groups would lead us to believe that all gun owners are criminals. They want us to believe that the best thing we can do is just take all the guns away and that will solve all the problems of our civilized society. Now you and I both know that isn’t going to work and hasn’t worked in the past. However, I am afraid that some of our fellow gun owners are doing things that are adding fuel to the fire of the anti-gun groups.
One of these trends is “Unlicensed used gun dealers” or hobby gun dealers. Many I am sure do not realize that they are. I am a member of several groups on Facebook. I am for the most part a passive observer in the groups. I rarely sell the few firearms I own and because I am pretty picky, most people do not list the firearms I desire. What I have noticed spending time in these groups is that there are always a few individuals who are constantly showing up in the feeds. They always seem to have a firearm for sale and are well known in some of these forums.
These individuals are often running a very thin line between occasionally selling guns person to person within their State and running an unlicensed used firearms business. I will take one of the groups out of State that I am a member of as an example. They have a page posted that keeps track of positive feedback for some of the members of the page who have traded with others. It’s interesting to see some of the people with feedback from 50, 60, and even 70 people. After searching, only about half of those had FFL licenses. The other half (regardless if they know it or not) is likely running an illegal used firearms business.
I have spoken to some of these people privately and it is a heated issue. Some of these people are making a really good supplemental income off buying and selling firearms. So, it’s not surprising that many of them get pretty hot under the collar when they come to the conclusion that what they are doing is illegal and something they enjoy doing is being squashed. I understand that, but the facts are facts.
The key to this issue is if you are “engaged in the business” of importing, manufacturing, or “dealing in firearms.” (ATF, Title 18, CH 44, 923 Licensing). The ATF goes on to clarify that “engaged in the business” means. It says in section 921, C, 921 (a)(11)(A), “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.”
In 2008 Shawn Tyson was arrested for dealing in firearms without a license. How many had he purchased in the short time of the investigation? He has purchased just 35 firearms in the span of 12 months and only 12 were still accounted for at his house. The investigation was deep and firearms were tracked many layers deep until they were found. It was proven that he had made money on the transactions and was using his gun hobby to make a profit. In 2011, the Third Circuit upheld a conviction of dealing in firearms without a license for Tyson and set Court Precedent with the following conclusion:
Third Circuit, in upholding a conviction of dealing in firearms without a license noted (U.S. v. Tyson, 653 F.3d 192 (3rd Cir., 2011), at 200-201,
…By the statute’s terms, then, a defendant engages in the business of dealing in firearms when his principal motivation is economic (i.e., “obtaining livelihood” or “profit”) and he pursues this objective through the repetitive purchase and resale of firearms. Palmieri, 21 F.3d at 1268 (stating that “economic interests” are the “principal purpose,” and “repetitiveness” is “the modus operandi ”). Although the quantity and frequency of sales are obviously a central concern, so also are (1) the location of the sales, (2) the conditions under which the sales occurred, (3) the defendant’s behavior before, during, and after the sales, (4) the price charged for the weapons and the characteristics of the firearms sold, and (5) the intent of the seller at the time of the sales. Id. (explaining that “the finder of fact must examine the intent of the actor and all circumstances surrounding the acts alleged to constitute engaging in business”). As is often the case in such analyses, the importance of any one of these considerations is subject to the idiosyncratic nature of the fact pattern presented…
Does this sound like anyone you know? I know I could list some names and I am sure you can too. Sadly, these people are putting all of us at risk. In dealing with them (and even those who have dealt with them), we risk purchasing a firearm and getting it confiscated if the ATF or Law Enforcement ever pays these individuals a visit. By not paying taxes on multiple gun transfers, the unintentional gun dealer is setting us up to be investigated by the IRS. We also risk being scrutinized by association. The ATF, Law Enforcement, Anti-Gun crowd, etc. are looking for things like this to hang us. As responsible, law abiding, gun owners we need to make sure we are not encouraging this kind of behavior. Being responsible gun owners also mean following the law.
Don’t mis-understand me, I don’t want to discourage anyone from purchasing used firearms from individuals. However, we do have to be very careful and know the history of a firearm before purchasing. If you suspect a person is selling firearms without and FFL as a way to make a profit, my advice is to shop around a little more or purchase from a local FFL.
If you are that person or just discovered you have been engaged in illegal activity, consider getting your FFL license! It is not that costly and could very well save you 18 months in jail and a 50,000 fine. As Jeff Catron, my friend and owner of Bad Boy’s Bail Bond’s says, “Buying old guns and fixing them up sounds like fun until the Feds find out it’s a $20k income. It’s all fun and games until you need Bail!” True, very true.
Disclaimer: I am not an attorney or recognized legal council, nor do I play one on TV. I haven’t even stayed at a Holiday Inn in a while. Please understand the contents of this article may indeed be accurate from a legal standpoint; however, I assume no liability for it’s legal accuracy. If you have questions please contact an attorney that spent more time in College than I did so they could give you firm legal advice.