Change of Term “Engaged in the Business” for Federal Firearms Law

Gun Counter Sale Store Shop shutterstock_Nomad_Soul 1686855574.jpg
Gun Counter Sale Store Shop shutterstock_Nomad_Soul 1686855574.jpg

U.S.A.-(AmmoLand.com)-– On June 25th, 2022, the gun control compromise was placed into law. The legislation was initiated in the Senate and passed so fast it was unlikely to have been read by most of the representatives and senators voting for it.

It will likely be years before all the changes made in the bill are understood in their effect on the administration of firearms law in the United States. One of the ways the bill was sold was by claiming it calls for “clarifying the definition of federally licensed firearms dealer“.

The objective has not been achieved. The bill changed the definition of “ENGAGED IN THE BUSINESS”. From the bill:

SEC. 12002. DEFINING ‘‘ENGAGED IN THE BUSINESS’’.

Section 921(a) of title 18, United States Code, is amended—21(1) in paragraph (21)(C), by striking ‘‘with the principal objective of livelihood and profit’’ and inserting ‘‘to predominantly earn a profit’’;

The old law, wording to be changed in bold,  From govinfo.gov:

(21) The term “engaged in the business” means—

(C) as applied to a dealer in firearms, as defined in section 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, 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….  

(22) The term “with the principal objective of livelihood and profit” means that 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:

The new law: From uscode.house:

(21) The term “engaged in the business” means—

(C) as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business to predominantly earn a 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…

(22) The term “to predominantly earn a profit” means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection: 

I do not see any clarification in the changes of these words. There does not seem to be any significant change in enforcement of the law between “with the principal objective of livelihood and profit” and “to predominantly earn a profit”.

  • One possibility: The changing of the phrase allows law enforcers to claim there is a difference; so that older court rulings and precedent can be challenged, because the wording is different.
  • A second possibility: The change could force more regulation of people who regularly sell at gun shows. It seems unlikely the change will do much in that arena.
  • A third possibility:  The change was put in place to claim “something is being done”, without any substantive thing being done.

When this change is considered through the lens of the recent clarification of the Bruen decision, the lack of substance appears the more likely outcome. 

Dealing in guns was never licensed by the federal government before the 1930’s, because it is an obvious infringement on the Second Amendment. When the federal bills were passed in the 1930’s, they were passed as tax bills specifically stated as a way to circumvent the prohibitions inherent in the Second Amendment.

As seen through the lens of Bruen, the federal gun laws are a recent innovation, not backed up by history or culture.

The counterpoise to this is the Heller decision, which specifically allows for federal regulation of commercial sales of arms. From a previous AmmoLand article:

Here is the limiting language Justice Stevens claims to have been influential in having inserted, in trade for Justice Kennedy’s vote:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

I expect little change in enforcement from the limited change in the definition of “engaged in the business”. Perhaps others can discern more subtle effects. Please include the analysis in the comments.


About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

Subscribe
Notify of
42 Comments
Inline Feedbacks
View all comments
Desert Rat

Having read the comments below, I am amazed at how many don’t get it. With this “law” we will see the ATF along with your local PD and sheriff’s deputies conducting sweeps through gun shows arresting every person carrying a gun for sale. They will be taken away never to be seen again. The arrestees will be put into solitary confinement somewhere, no charges will be filed, no bail will be allowed, no legal counsel will be able to represent any of the captives, and no trials will ever take place. Many will say that will never happen here, but… Read more »

Roland T. Gunner

I have a real problem with Heller’s “…not unlimited. It is not a right to keep and carry any weapon whatsoever…”. Never mind repealing NFA et al, that puts us back to fighting against the “you dont need an AR-16” and “you dont need more that 10 rounds” confiscationists. That “but” can be used to gut the Second Amendment of everything but it’s spleen, represented by a Cricket .22.

DIYinSTL

A fourth possibility is that “to predominantly earn a profit” is ambiguous as compared to the previous wording, giving prosecutors more leeway in court and bureaucrats more freedom in writing/enforcing regulations.

Wild Bill

Yes, that could be. My answer is that I am not selling for a profit. I am probably selling at a loss to spite my heirs that only want cash when I expire. Oh and they will not get the cash … that is going to horse and dog rescue charities.

PMinFl

If this ruling applied to all of the real estate hucksters advertising non stop on TV, those who “guarantee an offer” but are actually flipping houses of people that are unaware of the volatile market there would be no interest in checking such tactics. They are surely “making a profit” and taking care of legislators.

nrringlee

Let us be very clear on one subject: “Law.” Law comes from legislation in a Constitutional republic. What we are talking about here is the US Code for Regulations. There is a. huge difference. Let me explain. Many moons ago and in a land dominated by pagan gods, Washington DC to be specific, a new creature emerged from the pond scum of the Potomac. Call him the Progressive. The progressive believed only invisible bureaucrats and so-called ‘experts’ could effectively administer a society. None of this God stuff need be involved. Bureaucrats and experts would breed. a new human, cull the… Read more »

2gats

STOP COMPLYING WITH .gov! Don’t register anything…..DO NOT COMPLY

Make firearms sales free again by doing ftf transactions without the totalitarian government assholes and their 4473’s!!! STOP PARTICIPATING IN REGISTRATION like some captive with Stockholm syndrome.

Every impediment .gov places in front of you is an unconstitutional infringement. Take back freedom.

If Americans don’t “man up” and stop co-operating your kids and your grandkids will be disarmed slaves.

REGISTER GOVERNMENT EMPLOYEE TAX PARASITE HOME ADDRESSES…..NOT FIREARMS!!!!!!!!

Roland T. Gunner

2 thoughts- we need a thriving underground economy and infrastructure to facilitate ftf sales. And something akin to a regular sceduled system of parking lot modern sporting rifle and handgun parties, where a thousand people show up and starts passing guns back and forth, passing them around, so when everybody leaves, none of those weapons has a traceable provenence.

2gats

You’re right of course but in states like crapistan (CA) the culture is being educated and intimidated out. Trying to do private ftf transactions with pussies that have had their rights bred out and their testicles cut off destroys your faith that Americans will remain free.

KenW

Define “Profit”
If you bought a Winchester rifle a few years ago and sold it at market value, did you “earn a profit”?

If you bought a new Colt @MSRP and sold it in the current market for substantially more than MSRP, did you “earn a profit”?

What if you list a firearm as an auction for $1.00 and you net 5 or 6 hundred, did you “earn a profit”?

Seems like a “Catch-22” How can you prove “intent”

swmft

sell it today and cant buy it back for twice the money next week did you earn a profit

nrringlee

With Bidenomics there is no such thing as ‘profit.’ Inflation eats every gain.

Tionico

True dat.

musicman44mag

The first time you bought the gun, you paid taxes on it. Now you are selling it later and you will need to pay taxes on your profit and the person buying it will pay taxes when buying it, again. Double taxation without representation.

OreGONEISTAN

Wild Bill

Proving each and every element of each and every charge brought is up to the accusing agency (probably the BATFE). Proving intent is always a difficult element to sell to a jury.

Marc

I’ll leave it to others to argue the constitutionality of the GCA.

The change appears to simply remove the requirement that the “dealer’s” principal income come from their gun sales – meaning that the ATF can pursue someone who’s “gun sales business” appears to not be their principal source of income.

Thus someone that is not a FFL, but that frequently profits from selling guns at a gun show or elsewhere, but that has other sources of income, would be in violation of the GCA rules under this revision of law.

CaptainKerosene

The 1934 law was paterned after the earlier drug law as a way around the Second Amendment. I recall it was the idea of Attorney General Armstrong.

Last edited 1 month ago by CaptainKerosene
Agostino

Dean, I vote reason 3, to appear to be doing something. No substance in any of your alternatives. Of course no law will actually make any difference.

Considerthis

Firearms are the low hanging fruit for socialist / communists that don’t want anyone to make a profit, it’s so capitalistic.

Finnky

Good point. If one is selling firearms with intent to insure everyone in neighborhood is armed – principle purpose is not profit.
Msybe set up a nonprofit charity to distribute arms. Like most nonprofits, those who run it are well paid – but it qualifies a semi charity because organization isn’t making a profit.

swmft

like red cross, , take high pay charity has debt which you cover so writeoff too

CaptainKerosene

Armed societies make tyranny and tyrants nervous. The tyrants want the profits.

hippybiker

As Robert Heinlein once wrote in 1942…” An armed society is a polite society manners are good when one may have to backup their actions with their life!”
Unfortunately, most politicians are very ill mannered!

Roland T. Gunner

That was Heinlein? I always thought it was Clemens.

swmft

give them free samples of led send it air mail without ups

Orion

around the 22 minute of his speech, Bidens seems to infer that a simple one-time Single transfer between two individuals (at any location) would qualify for one needing an FFL. Well, we know that is false on its face. FJB!

Tionico

well, there are a number of states that have codified this into law. Some hve even taken it so far that if yuo come round to visit me at my home, and happen to bring a rifle, and we both decide to take yours and one of mine out back for some rounds downrange (legal and safe where I live) and, after each firing our own, decide to try out each other’s for a few more rounds, we’d have to pile into the car, bring the two rifles, find an FFL, wait, pay him fifty bucks or more each to… Read more »

swmft

would be willing to bring an excavator if you bring pollutishuns ,we can make a toxic waste site

Iconic One

“Dealing in guns was never licensed by the federal government before the 1930’s, because it is an obvious infringement on the Second Amendment. When the federal bills were passed in the 1930’s, they were passed as tax bills specifically stated as a way to circumvent the prohibitions inherent in the Second Amendment.”

This is the absolute heart of the beast.
All gun law should be challenged by challenging congresses abuse of the second amendment by virtue of the commerce clause.

Wild Bill

Yep, all those statutes should be challenged for constitutionality, but each challenge is pretty pricy.

Orion

my thoughts exactly, Dean. those individuals who are known to frequently set up at gun shows should be more cautious tho, as no one desires that first test case.

swmft

I do know one that is more or less churning as something to do and add to his collection , in his 70s or 80s no family living on social security and a small disability has a small travel trailer has some ww2 and korea stuff and medals think he is slowly selling his life to not be homeless
see him at south and central florida shows

Last edited 1 month ago by swmft
Terry

This is exactly the type of domestic terrorist that the ATF wants to prosecute! If they find he has a Trump sticker on his trailer he’s toast!

swmft

think he has a nixon /agnew in the back window but he does wear a maga hat

Tionico

Write him up!!!!

gregs

it is a form of coersion to reduce the number of private firearms being sold. who doesn’t want to make a profit or, who wants to lose money on anything?
remember we are talking about the government, they will not take expenses into consideration when claiming someone makes a profit from the sale of a firearm. also remember, the government produces nothing, they just take from those that do.

swmft

government produces poverty

Tionico

Keeping good records, date-filed and itemised, will be key to a defense against such tyranny. Play some games with cash vs accrual basis. If I’m adding to my collection this year, anything I buy is an “expense” or debit. So if I happen across a screming deal , buy it, bring it back next show and double my money on THAT one, but buy four more the same day, I’m paddling backwards on the profit game.

Roland T. Gunner

Isn’t one of the key abuses we are protesting, the unconstitutionsl record keeping? Serial numbers on a huge stack of post-its might not be a list, but it has the same end result. If a person has to keep records of his sales, either due to legal requirements, or fear of frivolous criminal or civil prosecution, hs rights are still being violated.

Last edited 1 month ago by Roland T. Gunner
Ope

The ATF is the problem with everything firearms related. Those scumbags think any records an FFL doesn’t voluntarily (but illegally) turn over to them on request is ground for license revocation and possible criminal prosecution.