This week the Center for American Progress issued a report recommending changes in the definition of being engaged in the business of selling guns. Clarifying what constitutes dealing in firearms would bring more gun transactions under the purview of the ATF and thus create more barriers to guns moving from one person to another without a NICS-background check. The CAP report is a response to President Obama’s announcement after Roseburg that he might invoke executive authority to redefine how many gun transactions would demonstrate an ongoing business activity, as opposed to simply owning or collecting guns.
Gun dealers have been regulated by the Federal Government since 1938 when a law was passed that required dealers to purchase a Treasury license for one dollar and follow some simple rules whenever they transferred a gun, namely, verifying that the individual to whom they delivered the gun lived in the same state where the dealer was located.
The 1938 law was completely revamped and the scope of government gun regulation widened to an unprecedented degree by the Gun Control Act of 1968. Now dealers were not only required to verify the age and address of the customer, but also to verify that the prospective gun owner was not a member of various prohibited categories; i.e., felon, drug addict, fugitive, mental defective, and so forth. A gun dealer had no way of checking the veracity of such information, but at least there was a document on file for every over-the-counter sale.
Verifying whether an individual was telling the truth about his fitness to own a gun was what lay behind the Brady Bill passed in 1994. In lieu of a national waiting-period on all gun purchases was a provision that required every federally-licensed dealer to contact the FBI who then verified that the customer was telling the truth. But in order to access the FBI examiners, you had to be a federally-licensed dealer. No federal dealer’s license, no contact with NICS. Which is where the whole notion of ‘loopholes’ in the gun-licensing system came from; which is what Obama would like to close. And the easiest way to close the loophole, or at least make it smaller, is to define the word ‘dealer’ in a way that requires more people to become FFL-holders if they want to buy or sell guns.
The CAP report is a judicious and careful attempt to set out some criteria that could be used to determine who is really engaged in the business of selling guns. It does not recommend any specific amounts of guns that might be transferred nor how much money someone needs to earn over any given period of time. Rather, it looks at how various states define commercial enterprises and whether such definitions would be a useful guide to creating a more realistic way to establish that someone is going beyond just collecting or owning guns.
What the report doesn’t mention is that if the FFL imposes some sort of uniformity over dealers at the federal level, when we look at how states license gun dealers, there’s no uniformity at all. Every state collects sales taxes, every state imposes and enforces other business regulations, but when it comes to guns, most states simply place the entire regulatory burden on the Feds and the ATF. In order to receive an FFL, the prospective dealer must send a copy of the license application to the local cops, but if the particular locality doesn’t have any local laws covering gun dealers, the local gendarmerie could care less.
I hope the CAP report will be taken seriously by the President before he issues an Executive Order that more clearly defines what it means to engage in the commerce of guns. I also hope he won’t publish an Executive Order that places more unfulfilled regulatory responsibilities on the ATF and provokes the usual ‘I told you so’ from the pro-gun gang. If it were up to that bunch, there would be no gun regulations at all.