WASHINGTON, DC –-(Ammoland.com)- The Washington DC. Metropolitan Police Department (MPD) became the only Federal Firearms License holder (FFL) in DC, once the founder of DC Concealed Carry, Charles Sykes, retired. It is almost impossible for an individual to get an FFL license in the District of Columbia. Regardless powers that be in DC sought the FFL for the MPD to avoid a situation where there are no operating FFLs in DC, which would open the federal enclave up to another lawsuit. The MPD will be doing transfers for a cost of $125 per firearm, which is $100 more than the average cost in the USA to process a firearm transfer for an eligible citizen.
AmmoLand News' inside sources at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF) confirmed the Bureau issued the MPD their FFL on April 2nd, 2020. It appears that the ATF gave the MPD special treatment. Typically, an industry operations investigator (IOI) reviews an application for an FFL, which ultimately is approved by the Director of Industry Operations for the particular ATF division. There are currently 25 ATF divisions around the country.
The decision to approve the MPD’s application did not come from the Director of Industry Operations for the region. The highest level of ATF leadership approved the MPD’s FFL. The move is highly unusual. People aware of the level of approval believe that the ATF leaders issued the FFL to MPD for political reasons.
Is the MPD is legally eligible for an FFL?
It is not at all clear that ATF’s decision to grant MPD an FFL was justified. According to 18 USC. Section 923(a) a person needs a license if he is “engage[d] in the business of … dealing in firearms….” Section 921(a)(21)(C) states that the term “engaged in the business” means “as applied to a dealer in firearms … 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….” Section 921(a)(22), in turn, defines “‘with the principal objective of livelihood and profit’ means that the intention 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….”
That simply does not apply in the case of the District. The MPD’s reason for getting an FFL and doing transfers is to head off a lawsuit. The city’s “principal objective” clearly is not “livelihood and profit,” or “predominantly one of obtaining livelihood and pecuniary gain.” Years ago, the ATF undertook a campaign to eliminate as many FFLs as possible, based on the theory many persons were only using the license to acquire firearms for their personal collection and had few if any actual sales. The MPD will have no sales and only do transfers.
If the MPD were to “engaged in the business,” it would make matters worse, not better. The department decided to charge the same rate as the former FFL in DC. The $125 is multiple times higher than the average fee charged by FFLs in boarding states. The charge is also numerous times higher than the actual cost of doing the transfer. If DC were to argue this charge proves that they are in the business to make a profit, it would cause other problems.
The $125 constitutes an excessive tax on the exercise of an enumerated right which, according to the Supreme Court decision Murdock v. Pennsylvania, 319 US 105, 113 (1943), can be justified only if (i) it is not a general revenue-generating tax; and (ii) it is tied directly to defraying administrative expenses incurred in the operation of a program in which there is a legitimate governmental interest. The MPD cannot argue that $125 simply covers the “administrative expense” of processing the transfer since virtually every other FFL in the country is willing and able to perform the same service for far less money.
Either way, it does not appear that MPD qualifies for an FFL. If it is not “engaged in the business,” then it should not be operating as a federal firearms licensee. And if it is “engaged in the business,” then it is operating unlawfully to profit against the regulation of an enumerated constitutional right.
There is also the inherent problem of the government of the District, a federal enclave, taking on the role of a firearms business. 18 USC. Section 926(a)(3) states that:
“No such rule or regulation … may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.”
Once MPD signed up for an FFL, ATF regulations “require” that MPD keeps “records” of firearm transfers. And those records are to be “recorded” and “maintained” only at the “business premises” of MPD, which is “a facility owned, managed, [and] controlled by the United States … [and] any political subdivision thereof.” The District is both a federal enclave of the United States and a political subdivision thereof. In other words, there’s a good argument that Section 926(a)(3) expressly prevents a federal, state, or local government entity from operating as an FFL that does business with the public, as MPD is seeking to do.
The additional problem for Washington DC is not that no one is willing to undertake the potentially lucrative commercial opportunity to be the District’s only FFL. Instead, the problem is of the District’s own making. DC has intentionally and deliberately created a hostile environment where no one in their right mind would want to risk the venture of being a gun dealer. Indeed, even when Sykes was in operation, he did not risk selling guns or keeping an inventory, but only transferred ones shipped from outside the District.
Rather than MPD attempting to operate as an FFL to avoid a lawsuit, the District should instead relax its onerous gun laws so that firearms commerce can function as it does throughout the rest of the country.
The MPD states that appointments for transfers only take 24 hours. They did not have a comment on the legality of their FFL. The ATF did not respond to AmmoLand News’ request for comment at the time of this writing.
About John Crump
John is a NRA instructor and a constitutional activist. He is the former CEO of Veritas Firearms, LLC and is the co-host of The Patriot News Podcast which can be found at www.blogtalkradio.com/patriotnews. John has written extensively on the patriot movement including 3%'ers, Oath Keepers, and Militias. In addition to the Patriot movement, John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and is currently working on a book on leftist deplatforming methods and can be followed on Twitter at @crumpyss, on Facebook at realjohncrump, or at www.crumpy.com.