Some of the most radical changes proposed in the new ATF rule are to completely redefine “personal collection,” “personal collection of firearms,” “personal firearms collection,” and “hobby.” Three of the long-term exceptions to “engaged in the business” have been:
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;
Personal collection of firearms has long meant “the firearms owned by a person.”
None of the wording of those exceptions was changed by the Bipartisan Safer Communities Act or BSCA, which went into effect on June 25, 2022. The ATF is using BSCA to justify its power grab with the new rule. Here is the current definition of “engaged in the business.” From the Legal Information Institute:
(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.
This has been a safety valve to prevent the ATF from saying anyone who sells a few firearms here, and there is a “dealer in firearms”. ATF has never been willing to say how many firearms constitute “occasional sales, exchanges, or purchases.” They like to be able to interpret the definition differently in different circumstances. To emphasize: the wording of these three exceptions has not been changed by the BSCA.
With the new rule, the ATF wants to collapse those three exceptions into a very limited definition. Essentially, the proposed definition excludes all personal firearms owned or acquired for defensive purposes or purchased and resold for pleasure and interest as a hobby. From the proposed rule, pages 39-40:
E. Definition of “Personal collection,” “personal collection of firearms,” and “personal firearms collection”
Specifically, 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).” This reflects a common definition of the terms “collection” and “hobby.”85 The phrase “or for a hobby” was adopted from 18 U.S.C. 921(a)(21)(C), which excludes from the definition of “engaged in the business” firearms acquired “for” a hobby. Also expressly excluded from the definition of “personal collection” is “any firearm purchased for resale or made with the predominant intent to earn a profit” because of their inherently commercial nature. 18 U.S.C. 921(a)(21)(C).
The above definition excludes from a personal collection of firearms, those firearms primarily owned for defense, the most common reason to own firearms in the USA. It excludes those people who buy and sell a few firearms a year for a hobby.
This correspondent knows quite a few people who like to buy a new gun, try it out, then sell it, buy another gun, see if they like it, and sell it. Those people are currently protected under the “hobby” exception but would almost certainly be prosecuted as a “dealer” with the change in definition proposed by the Biden administration. Some people enjoy the camaraderie, the haggling, the examination of firearms, and the exchange of tall tales while trading, buying, and selling. The enjoyment is the primary purpose, far overriding any profit. The proposed language excludes, by definition, the occasional sales, exchanges, or purchases for a hobby. It only allows hobbies to be defined as “noncommercial, recreational activities for personal enjoyment such as hunting, or skeet, target, or competition shooting”.
Currently, a person who sells part or all of their personal collection of firearms, perhaps because they need the money, perhaps because they decide they want to obtain different firearms, are protected. With the proposed definition, they would only be protected if the firearms were not purchased predominately for defensive purposes, and they were not sold because they needed the money.
The radical definitional changes were not approved by Congress in law. They completely upend the long-standing exclusion of occasional sales, exchanges, or purchases. They appear to be designed to eliminate the defense of self and others from the “approved” purposes of owning firearms. The Supreme Court has long recognized the defense of self and others as one of the primary purposes protected by the Second Amendment.
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.
Does having had a license revoked, or an application denied, for “not engaging in the business”, constitute a defense against dealing without a license?
Remember, ATF has drive 90% of FFLs out of business in recent decades. Most of the non-licensed sellers at gun shows would prefer to have licenses, but ATF refuses.
This is ATF making vague regulations that can be used on those unlucky enough to find themselves being raided for superficial infractions. This is another step to let the state have a flexible standing when preparing a prosecution. They want legal, multiple gun ownership to become so complex that the law abiding will opt to own less out of the fear of accidental infractions.
You don’t categorize your gun purchases as defense or target when you buy them. Nor collection or hobby. It is a label slapped on by the gov when they want to prosecute under this new language. And under this new language, all anyone has to say is they bought it for target shooting, didn’t like it, sold it… if anyone even asks.
This kind of thing might be a good reason to take up IDPA competition. There are several classes that use stock or near stock pistols, including “Compact Carry Pistol Division.” Sign up for a match or two, use your carry pistol, keep your entry documentation and your score cards. Who can say it’s not a “competition pistol.”
I’ve never sold a firearm. I’ve heard and read too many “I had one of those once. Sold, or traded, it. Kick myself every time I think about it.” stories. However, among the things I have sold I have rarely if ever turned a profit. I usually lose my a**, especially if you consider inflation. The same would probably be true for firearms. I tend to avoid collector’s items. I buy stuff to use, not oo and ah over while wearing white gloves and hoping it will be worth more than I paid for it one day. Nevertheless, I have… Read more »
Clearly I would have a FFL license if I wanted to earn a living or have a picunary interest.
As I stated before, the comment period in the federal registry has opened. There are over 15k comments so far. No telling how many are pro or con without going through them all. The first few I read were against the rule, but were nothing more than rants against the ATF. Those will probably be discarded. Don’t get nasty and call names or the comment will be canned.
‘Morning Dean; the wording in these proposed changes is so slipshod and nonsensical, it seems more sloppy than deliberate.
BOZZ is wrong, DO NOT leave comments on ATF open comment area/site. The ATF wants good smart people to comment, so that they can craft their sheet words against you. Best to let the ATF dummies craft their own crap, it makes it easier for Pro-2A to challenge in the courts.
The 90 day comment period has opened. We have until 7 Dec to submit comments to the ATF about this proposed rule. Please do so. Everytown, Mother’s Demand, and other gun control groups are mounting a comment campaign in favor of this ambiguous rule. Some of the wording in this article can be used to submit a powerful comment against the rule. Here’s a link to the federal register comment page. https://www.federalregister.gov/documents/2023/09/08/2023-19177/definition-of-engaged-in-the-business-as-a-dealer-in-firearms