Put not your trust in bureaucracies - Second Amendment edition

 

It seems the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF for short) is bound and determined to put every single firearms transfer through a formal registration process, whether justifiable or not.

The ATF’s background check rule redefines the word “sale” so that private sellers who receive services or barter in exchange for a gun are required to use the National Instant Criminal Background Check System (NICS).

. . .

... pages 26-27 of the rule equates “pecuniary gain” with “profit,” opening the door for the ATF to redefine the word “sale” so as to require a NICS check when a private seller is “bartering” over a gun.

Beginning with the last paragraph on Page 26 and reading into the first paragraph of page 27, the reader sees clearly that the ATF is defining the terms:  “Defining these terms to include any method of payment for a firearm would clarify that persons cannot avoid the licensing requirement by, for instance, bartering or providing or receiving services in exchange for firearms with the predominant intent to earn pecuniary gain even where no money is exchanged.”

Second Amendment Foundation founder and executive vice president Alan Gottlieb commented on the ATF rule, saying, “This is a continuation of the Biden war on guns. It is another attempt to get around Congress to make new laws without congressional approval.”

There's more at the link.

Never in previous American history has such registration been necessary.  I entirely agree with Mr. Gottlieb:  the ATF is trying to effectively make a new law, which is the prerogative of Congress alone, by arbitrarily redrafting its regulations under existing law to such an extent that they actually change that law.  This is unconstitutional, to say the least:  yet, under the Biden administration, such bureaucratic shenanigans have become routine.  One hopes the Supreme Court will eventually get around to striking down this latest example of ATF overreach.

Nevertheless, the bureaucrats can't close every door.  I note, for example, that to give someone a firearm one has already owned for some time as a gift (where no money or other compensation, in cash or in kind, changes hands) is still entirely legal, and does not require a background check.  I would imagine that if Joe Bloggs gives John Smith such a gun as a gift one month, and John Smith gives Joe Bloggs such a gun at a suitably later date (so that there's no obvious link between the gifts), that would still be arguably outside the new regulations.  Furthermore, if one does not receive any "pecuniary gain" for a firearm by selling it (in other words, for less than one paid for it), I would imagine that would be a suitable defense against any charge under these regulations (assuming, of course, that one did not do so regularly, thereby "conducting a business" in the trade in firearms according to the bureaucratic definition).  In the old days, that used to be more-or-less loosely defined as selling more than five firearms per year.  Now, who knows?  The regulations have not yet been tested in actual court cases.  I imagine that can't be far away.

There's also the question of "swap meets", which have been conducted for some time.  A group of friends might get together and swap firearms with each other, so that two people might swap identical models of (say) Glock pistols, each ending up with a gun that was not registered in their name.  Doing that once would still leave a traceable chain, in that a rigorous investigator might uncover links between the two individuals, and be able to follow them;  but if a gun has been swapped several times between different people on different occasions, it becomes very hard to trace everyone who's owned it since its original owner bought it.  I suspect that will be declared illegal under the new regulation, in that the ATF will probably argue that receiving an identical gun in exchange for one's own constitutes "pecuniary gain" (even if that can't be measured in dollars and cents, because no money or other "trade goods" has changed hands).

Older regulations are likely to cause some problems, and raise legal questions.  For example, it used to be entirely legal (according to the ATF's own official instructions interpreting the law, which many of us have saved in downloads and screen shots) to buy a firearm to give as a gift to someone else, and put oneself down on the ATF's Form 4473 as the actual owner or purchaser of that firearm.  Yes, they said that in black and white, and it was in effect for years.  That advice is no longer to be found on the ATF's Web page - but it has never been formally withdrawn.  I suspect it will be an interesting moment in court (if the agency chooses to pursue the issue) when the accused points out something like this:

"I did something that was entirely legal under a previous ATF interpretation of the law, but am now charged with a crime for doing exactly the same thing under a later ATF interpretation.  The underlying law has not changed - only the official interpretation and regulation.  It makes no sense for conduct under the same, unchanged law to be legal one day, and illegal the next.  That is nothing more or less than an arbitrary bureaucratic decision.  It is not a change in the law."

I'm sure we'll see and hear a great deal more about this in future.  Meanwhile, if it's important to you to own a firearm or firearms that have not been officially linked to your name through a background check, you have only a very short time available (before the new regulations are implemented) in which to buy it/them from a private seller without going through the official background check process.

Peter