Second Amendment Roundup: "He's at It Again!"

Merrick Garland proposes ever-more intrusive ATF regulations.

Attorney General Merick Garland is proposing new ATF regulations that would expand definitions in the Gun Control Act to require ever-more gun owners to obtain federal dealer licenses. This follows a new regulation redefining "frame or receiver" and another one reclassifying pistols with braces as "short-barreled rifles." As I've posted previously,

those regulations have run smack into the Fifth Circuit's brick wall, The Fifth Circuit preliminarily enjoined enforcement of the pistol brace rule. It allowed a vacatur of the frame or receiver rule to remain in place, although the Supreme Court stayed the vacatur of that rule pending disposition of the case in that Court.

These three new, expansive regulatory schemes are unprecedented since passage of the Gun Control Act of 1968 (GCA). This third proposed rule reminds one of dinosaur Rex's scream in Toy Story: "He's at it again!"

Ordinary gun owners are not required to obtain any kind of license from ATF. To exercise the Second Amendment right to keep and bear arms, a person must be able to obtain firearms, and is free to dispose of firearms without a license as long as the person is not in the gun business. The proposed regulation purports to require many such persons to obtain a firearm dealer's license.

The GCA defines "dealer" as "any person engaged in the business of selling firearms at wholesale or retail." The term "engaged in the business" means "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 the definition "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."

As if that's not enough, "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." If you're wondering why the definitions are so detailed, it's because the original GCA had no definition of "engaged in the business" and numerous gun owners who made only occasional sales were being prosecuted because they didn't have licenses.

In a 1982 report, the Subcommittee on the Constitution of the Senate Judiciary Committee charged: "Agents anxious to generate an impressive arrest and gun confiscation quota have repeatedly enticed gun collectors into making a small number of sales—often as few as four—from their personal collections. … The agents then charged the collector with having 'engaged in the business' of dealing in guns without the required license."

The Firearm Owners' Protection Act of 1986 (FOPA) enacted the larger part of these definitions to prevent such unwarranted prosecutions, although the Bipartisan Safer Communities Act of 2022 (BSCA) revised them somewhat. First, for "engaged in the business," FOPA used the term "with the principal objective of livelihood and profit," which BSCA struck and substituted with the awkward split-infinitive "to predominantly earn a profit." Second, FOPA defined "with the principal objective of livelihood and profit," while BSCA deleted that term in favor of "to predominantly earn a profit," but left the definition itself intact.  In debate on the floor in Congress over BSCA, not one speaker explained the reason for changing the words or what effect the changes would have.

The Attorney General has authority to "prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter," such as administrative regulations about recordkeeping by licensees. But the Attorney General has no authority to expand on the definitions enacted by Congress, particularly because the GCA is a criminal statute with felony penalties for violation. The executive branch has no authority to invent new crimes.

A proposal to allow the agency that became ATF to adopt criminal regulations was defeated in GCA debates, reflecting that it would have violated the separation between the legislative and executive powers. And while the Chevron deference doctrine should never apply in a manner to allow an agency to criminalize conduct, Chevron itself may perhaps meet its just end when the Supreme Court decides the following issue in Loper Bright Enterprises v. Raimondo: "Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency."

The proposed ATF regulations here purport to make law by expanding the reach of the GCA beyond what Congress enacted. The rule states that a person "shall be presumed to be engaged in the business of dealing in firearms in civil and administrative proceedings" if the person does something on a non-exhaustive list that ATF invented, such as "offers for sale firearms, and also … demonstrates a willingness and ability to purchase and sell additional firearms." A single firearm need not even be sold if the person expresses a willingness to sell firearms, even if the person has no firearms to sell. That's not how Congress defined the terms.

The reference to "civil and administrative proceedings" includes actions like forfeitures.  ATF can supposedly seize and forfeit firearms based on "presumptions" it invented and is not limited to the grounds for forfeiture set forth in 18 U.S.C. § 924(d), which for many forfeitures requires a showing of intent "by clear and convincing evidence"—the opposite of a presumed violation.

The proposal concedes that the above presumption does not apply to a criminal case, but "may be useful to courts in criminal cases … when instructing juries regarding permissible inferences." But jury instructions are written based on the language of the statute, which sets out the elements of the offense, and the applicable judicial decisions that interpret the law. The agency involved in the prosecution of a case doesn't get to tell the judge how to draft the jury instructions.

As noted, the GCA defines the terms "to predominantly earn a profit" to mean a predominant intent to obtain pecuniary gain, not other intents, such as improving or liquidating a personal firearms collection. ATF makes up a list of actions that create a presumption that this definition is met, such as "rents … temporary physical space to display … firearms they offer for sale, including … a table or space at a gun show." The GCA makes no such presumption, and in fact many who display at gun shows are there to improve a collection, or just to gab with persons who happen by about political topics, such as how ATF "is at it again."

The new rule purports to narrow the term "personal collection," which Congress did not limit, to "personal firearms that a person accumulates for study, comparison, exhibition, or for a hobby." Somehow "self-defense" didn't make the cut, although that's a predominant reason to acquire firearms. As the Supreme Court stated in D.C. v. Heller, "the inherent right of self-defense has been central to the Second Amendment right," and handguns are "overwhelmingly chosen by American society for that lawful purpose."

The rule adds that the term "personal collection" "shall not include any firearm purchased for the purpose of resale or made with the predominant intent to earn a profit." But collectors in general buy guns with the purpose of eventual resale when they locate and can afford guns of ever-higher quality and rarity, and they certainly intend to sell guns for more than they paid as the collection moves up the ladder. And any gun owner would hope that the value of his or her firearms will increase in value, even if only to be sold by the heirs at a profit.

Next comes the inevitable list of activities for which a person is "presumed to have the intent to predominantly earn a profit from the sale or disposition of firearms." Note how ATF in compiling this list has conveniently deleted the following italicized words from the statutory term: "a regular course of trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms."

ATF's list includes activities like "advertises or posts firearms for sale, including on any website," terms that apply if you're just trying to sell a single, rare gun on GunBroker.com; "makes available business cards," which would apply to a card a collector gives out with the intent to help find rare Colt single-action revolvers; rents a "temporary physical space to display … firearms they offer for sale, including … [a] table or space at a gun show," something countless collectors do; and "maintains records, in any form, to document … profits and losses from firearms purchases and sales," something many gun owners keep track of without being in the gun business.

The new rule is calculated to require potentially hundreds of thousands of gun owners who occasionally buy and sell firearms to obtain dealer licenses from ATF. Remember when the complaint used to be that there are more licensed gun dealers than gas stations in the U.S.? Yet previously, the Biden Administration adopted a "zero-tolerance" policy of revoking as many dealer licenses as possible for even a single violation.

Why is the Administration pursuing these two diametrically-opposed objectives? First, putting actual dealers out of business reduces the availability of firearms in the community. A large store that sells numerous firearms also generates thousands of records, and under zero tolerance, any inadvertent error may give rise to a revocation of the license. Second, the antigun movement has not been successful in persuading Congress to pass universal background checks. By requiring more persons who only occasionally buy and sell firearms to obtain licenses, all persons who buy guns from them will have a check under the National Instant Criminal Background System. The "pen and the phone" work wonders when Congress refuses to act.

This see-saw game goes back to the Carter Administration, when ATF was young and on a mission to restrict gun ownership. Persons were denied dealer licenses because they allegedly didn't do enough business to qualify, and then were prosecuted for engaging in the business without a license. This was documented in Gun Control and Constitutional Rights: Hearings before the Subcomm. on the Constitution of the Senate Judiciary Comm., 96th Cong., 2d Sess. (1980). Such antics prompted Congress to enact the Firearm Owners' Protection Act, which provided the particularized definitions for being engaged in the business.

The Supreme Court said in Heller that "nothing in our opinion should be taken to cast doubt on longstanding … laws imposing conditions and qualifications on the commercial sale of arms," which are "presumptively lawful regulatory measures." But tension would exist between the exercise of Second Amendment rights by the people in a non-commercial context and the imposition on those people of the conditions and qualifications applicable to businesses involved in such commercial sales.

The GCA requires a license to be a dealer in firearms, and a dealer is obliged to fulfil various requirements. The dealer waives Fourth Amendment rights to the extent the GCA authorizes ATF inspection during business hours on the licensed premises of required records and firearm inventory. The dealer waives the Fifth Amendment privilege against self-incrimination to the extent the GCA requires the keeping of records of firearm transactions.

As the proposed regulations attempt to push more of the people into the dealer category, Second Amendment concerns arise. While a handful of states require a license or ID for mere possession of a firearm, that arguably violates the right. So too would the right be violated if gun owners are subjected to unannounced inspections by authorities at their homes, an affront that European gun owners suffer. And while California now requires registration of most firearms, Congress has regularly rejected registration of firearms, and by implication requiring recordkeeping by gun owners.

Finally, Congress based the GCA's requirement of dealer licensing on the basis of its power to regulate commerce among the states. Gun owners who buy and sell firearms occasionally are not involved in commerce, much less interstate commerce. Pushing them into the licensing category pretends that they are.

Consider offering comments to the proposed rule. The deadline is December 7, the anniversary of "a date which will live in infamy."

* * *

The Fifth Circuit heard oral argument in Garland v. VanDerStok on September 7. It was very entertaining and is worth a listen. This is the case mentioned at the beginning of this post regarding the meaning of "frame or receiver." The judges gave government counsel a tough time regarding the meaning of "readily," based on the ATF-endorsed ruling in U.S. v. Smith (8th Cir. 1973) that an item was "readily restorable" to being a machine gun even though it took "an 8-hour working day in a properly equipped machine shop." Kudos to Pete Patterson of Cooper & Kirk for an excellent argument on behalf of VanDerStok.

Comments

[Absaroka]

"The new rule is calculated to require potentially hundreds of thousands of gun owners who occasionally buy and sell firearms to obtain dealer licenses from ATF."

Unless things have changed recently, an occasional buyer/seller can't get an FFL. You need a place of business, business licenses, be open regular hours, and on and on. That didn't use to be the case, but over the last decade or two the ATF tightened its regulations to shut down the occasional seller.

[hoppy025]

Right, that's the point. Leftists always say "So and so private seller sold this gun without doing a background check" but leave out the fact that the NICS system is not open to small time sellers, and that's by design.

[MeanGene]

Yes? So where is that "well regulated militia"? The National Guard system, as it exists today, is part of the federal military establishment(see Perpich v. US). Are we being denied that "well regulated militia" if our home state doesn't maintain an actual state defense establishment, as opposed to one existing only on the paper of the statute books?

[WuzYoungOnceToo]

So where is that “well regulated militia”?

The idiocy of that question is right up there with, "If we're descended from monkeys then why are there still monkeys?"

[jdege]

So, does having been denied a license, or having a license revoked because you weren't "engaged in the business" constitute a defense against dealing without a license?

[santamonica811]

Ha, funny. On my cell phone, all I could see was the "He's at it again." and the Halbrook author info. My assumption was that it referred to himself, but in pompous third-person point of view. "Great, another Halbrook post, where he's whining about the same old stuff. He's at it again."

[hoppy025]

I hope this man gets a tumor and rots with his worthless son.

[Dan Schiavetta]

“Well-regulated militia” may not be part of Prof. Halbrook’s understanding of the 2A but it is part of Garland’s.

[Kazinski]

You and Garland can try to live in your own 2nd amendment alternative universe, but the courts won't allow you to try to make the rest of us live in it too.

But this case isn't actually a second amendment case, its an administrative law case in how much authority an administrative agency has in overriding Congress's plain words and intent.

My guess is not much.

[Rev. Arthur L. Kirkland]

I expect gun nuts to adopt a different after Supreme Court enlargement occurs.

[Frank Drackman]

adopt a different what?? put down the kiddie porn and look at what you type before you submit.

[Scooter]

LOL, Meat.

Your Betters are watching; and taking notes.

[Rev. Arthur L. Kirkland]

I expect clingers to develop a different perspective after better Americans enlarge the Supreme Court, establishing a Court that resembles modern, educated America rather than a disaffected Federalist Society cocktail party. After the Supreme Court restores traditional interpretation and rejects recent gun nuttery, right-wingers will switch from insisting on fealty toward Supreme Court decisions on guns to railing about how the enlarged Supreme Court's interpretation of the Second Amendment offends (1) their sovereign citizenship rights, (2) their God-given rights (which, in their mind, trump anything manmade, because they're gullible, superstitious rubes), and (3) their half-educated grasp of the English language.

[Joe_dallas]

The Well regulated militia clause is there to protect the peoples right to form militia's for the common defense. The clause is not there to limit the right to keep and bear arms to when serving in the militia. Its a gross misinterpretation of the militia clause in order to make the claim that 2a is only a collective right and not an individual right.

[MaddogEngineer]

No, “well-regulated” doesn’t mean what you want it to mean.

A state cannot regulate the militia out of existence by limiting the people’s right to keep/bear arms to only when the state calls up the militia and then never doing so or defining it as select few. The entirety of the people are the militia and have a right to be armed all the time.

Your preference is the opposite of the historical record of militias in English and American history, which presumes a personally armed citizenry that can be called upon when needed. Part of the well-regulated is the state providing additional arms and training. Helpful but not required.

[David Welker]

In that case, maybe I will start a militia.

Would that make you happy?

[jdege]

You're already a part of the militia, whether you want to be or not.

[Frank Drackman]

too bad "Shall not be infringed" isn't.

[Drewski]

Toy Story? What a bizarre and random comparison.

[Davy C]

Woody has an empty gun holster. Perhaps he was hit by these regulations? I don't know.

[Brett Bellmore]

"But tension would exist between the exercise of Second Amendment rights by the people in a non-commercial context and the imposition on those people of the conditions and qualifications applicable to businesses involved in such commercial sales."

The tension between 2nd amendment rights and all sorts of regulations of firearms ownership, manufacture, and trade, is enough to break a bridge cable. Most of these regulations grew up during a period when the Supreme court simply wasn't upholding the 2nd amendment, similar to the way Jim Crow developed in the void left by the Court's refusal to uphold the 14th amendment.

The idea that you'd have to be licensed to exercise a civil liberty is obscene.

[Sarcastr0]

Licensure regimes for a right? Well, I never!

I don't think you can make an exact analogy between the 2A/right to self-defense and other rights, but the idea that the 2A is some kind of super right, immune from the usual rights-based jurisprudence, is not a good goal to aim for.
You will lose, and look crazy in the process.

[Brett Bellmore]

I'm not claiming it's a super right. I'm just rejecting the idea that it's a second class right, subject to being treated as though it were really a privilege that we're just pretending is a "right".

Which is the way gun controllers want to treat it.

I'd treat the right to keep and bear arms just like freedom of the press; You don't need a license to read, write, buy sell, or print books. I think no more should you need a license to own, carry, buy, sell, or manufacture, guns.

You'd still be fully liable for any misdeeds you committed using them, just like freedom of the press doesn't spare you if you commit extortion, forgery, libel. But innocent acts with guns would be beyond the government's reach, just like innocent speech.

But, that's not good enough for you, is it? You want to be able to regulate innocent acts relating to firearms, not just acts that actually harm somebody.

Because you don't want to treat it like a right, even if you're willing to use the word.

[hoppy025]

I think there's an argument that commercial sales could be regulated to some degree, but only to the same extent, for example, that restaurants are inspected to ensure cleanliness.

Owning and carrying absolutely should not require a license.

[Brett Bellmore]

Right, there's no reason that gun dealers can't be regulated in the way any other business gets regulated, (Which if we were honest about the commerce clause, would be by states, NOT the federal government!) they just can't be subjected to "but, guns!" regulation.

But gun controllers don't want to require that they collect sales tax, or have adequate parking, or that they keep financial records. They want to set up flaming hoops for them to jump through, so that as many get burned as possible.

[MeanGene]

Commercial sales in interstate commerce? But what are the legitimate boundaries of interstate commerce?

[Zeb]

The commerce clause is there so the feds can stop the states from interfering with or restricting trade with other states.

[Brett Bellmore]

I mean, can you imagine somebody getting hit with a felony rap for daring to build their own printing press? That's the sort of prosecution you'd expect in China, not the US, because we regard printing things as a human right, not a dangerous privilege.

So, why does the government so desperately want to make building your own gun into a crime? You know quite well why: Because they want the power to take guns away from us, so that only their own people are armed. Just like China regulates printing presses because they want the power to control what can be printed.

These sorts of regulations you defend only arose in the US after the government turned hostile to private gun ownership, and set out to suppress it. That's a historical fact. They're not innocent regulation, they were adopted specifically TO infringe the right.

[apedad]

"Can you imagine somebody getting hit with a felony rap for daring to build their own printing press?"

Actually no I can't.

Delusional, paranoid people can though.

[Brett Bellmore]

In China, or a few other totalitarian countries, you could get prosecuted for building a bootleg printing press.

[Sarcastr0]

Freedom of the press is full of restrictions. On access (a licensure regime even!), on protection of sources, and of course the usual defamation restrictions.

The final one is the only one akin to the 'only misdeeds' regime you postulate.

Also, calling everyone who isn't as far out as you 'gun controllers' is a purity test that will not serve you well. Not that most of the folks on these threads seem into political realities.

[Rossami]

What the hell are you talking about? Protection of sources is a restriction on the government, not an obligation on the journalists. Journalists can name their sources or not purely on their own discretion. The only restriction is on the government so that it cannot compel the disclosure of sources.

I'm not aware of any licensure requirement for access and claims to that you must be an "accredited journalist" rather than a "random blogger" have generally gone down in flames when challenged.

Defamation is not a restriction unique to the press and licensure gives you neither additional defenses nor liabilities.

[Sarcastr0]

Protection of sources is a restriction on the government You are making some assumptions as to the contours of the right, eh?

I’m not aware of any licensure requirement for access and claims to that you must be an “accredited journalist” rather than a “random blogger” have generally gone down in flames when challenged.
Sure - a 'shall issue' regime. Which is still quite a bit more restrictive than what Brett is talking about.

Defamation is not a restriction unique to the press and licensure gives you neither additional defenses nor liabilities.
Yes, if you define the freedom of the press narrowly a priori, then there are hardly any restrictions! I don't see folks enthusiastic about this re: guns.

I believe that between the 2A and 9A there is an individual right to self defense. I also think it acts like any other right, in dialogue with reality and practicality.

[David Welker]

Sarcastr0:

It is my dream that one day you will have to get a federal license to comment here. And that license will be denied.

Maybe it would teach you a lesson.

Oh, I get it. Your rights are VERY IMPORTANT rights.

[Michael P]

Now do the First Amendment, or the (unenumerated!) freedom to travel within the country.

One of you looks crazy, and it isn't Brett.

[Sarcastr0]

Do you think the right to travel is without restrictions? It's also full of licenses for most actual means of travel.

[Frank Drackman]

Reduce your Mescaline dose.

[Rossami]

Sarcastr0, please give examples of comparable licensure regimes for any other right articulated in the BoR.

[Sarcastr0]

Parades and protests.

[apedad]

“A large store that sells numerous firearms also generates thousands of records, and under zero tolerance, any inadvertent error may give rise to a revocation of the license.”

No it’s not ‘any inadvertent error.’

“Absent extraordinary circumstances that would need to be justified to the Director, ATF will seek to revoke the licenses of dealers the first time that they violate federal law by willfully 1) transferring a firearm to a prohibited person, 2) failing to run a required background check, 3) falsifying records, such as a firearms transaction form, 4) failing to respond to an ATF tracing request, or 5) refusing to permit ATF to conduct an inspection in violation of the law."

Those aren’t inadvertent errors – they’re failures.

[Absaroka]

"3) falsifying records, such as a firearms transaction form,"

That sounds pretty bad. And indeed, if the falsification means, for example, having NICS tell you the sale is denied and then checking the 'Proceed' box and selling the gun would certainly justify revocation. But that definition also covers very simple errors, like spelling out the state as 'Ohio' rather than using the approved two letter abbreviation 'OH'. Or transposing the fields for 'County' and 'Country'. I don't know how commonly revocations are threatened, or done, for those kinds of de minimis errors, but the FFLs I know live in fear of that kind of minor error.

People who are knowingly selling guns to prohibited people deserve not only to have their FFL revoked, but to go to prison. People who make innocent typos shouldn't lose their livelihood.

"4) failing to respond to an ATF tracing request,"

n.b. that actually means 'fail to respond within 24 hours'. Even if you are the sole proprietor of a small shop and take a vacation or get sick or whatever.

[hoppy025]

They also are asking ridiculous things like "Is your address within city limits?" Like who fucking cares? Many people don't even know, and the ATF can easily investigate whether a particular address is within city limits if it's at all relevant in an investigation (Hint, it almost never will be).

4473 also asks the buyer's height. Should a dealer have their license revoked if someone who is clearly 5'6" writes 5'10"?

[Brett Bellmore]

Not to mention that people change in height naturally over time, and maybe don't keep proper track of it.

[DonP]

Wonder if they'll start prosecuting anyone that lies about their weight on the form? Imagine the chaos if they applied that to driver's licenses?

[Aubrey LaVentana]

Lying about one's weight isn't necessary. ATF auditors can start bringing bathroom scales with them, to weigh licensees.

"Your application says 206 pounds. But you weigh 209. Sorry, we're pulling your license."

[Voize]

In Texas it is a misdemeanor to knowingly make a false statement in an application for a driver's license.

[Brett Bellmore]

Do you understand that, with enough transactions, eventually failure becomes inevitable, because humans are fallible? So there has to be SOME allowance for occasional failures.

You seem to be overlooking the word "willfully" there. To be fair, so is the BATF, deliberately, since they're on a tear to shut down as many firearms dealers as humanly possible, and get as many dealers' records transferred to their custody to be the basis of de facto gun registration as they can.

[apedad]

No I fully embraced the word 'willfully' because that IS a deliberate failure.

[Brett Bellmore]

So, you're just unaware of the fact that they're going after dealers for the sorts of errors Absaroka describes, minor typos?

[apedad]

Yes, I’m unaware of that “fact.”

But feel free to share your “facts.”

BTW, I share your and others' disgust of abuse of power.

[hoppy025]

Oh, let's not forget that the ATF has a mandatory multiple handgun reporting when done within 5 business days, but it's not based on the conventional definition of business days, but the business deals of that particular dealer. I could see how it would be easy to make a good-faith mistake on that.

The gun controllers are pretending that the "mistakes" are transferring guns to a felon after NICS returned a rejection. I suspect that that is extremely rare, if it happens at all.

[hoppy025]

The only time I've seen something crazy from an FFL was when I did a transfer of a sealed Glock from Palmetto State Armory, and the FFL got the serial number from the box without even opening it up.

I think a dealer is nuts to rely on the fact that no one, whether manufacturer or retailer, made a mistake along the way. But otherwise, every FFL I've seen is by the book.

[Aubrey LaVentana]

I read the serial number from the piece, then match it to the shipping paperwork, then match it to the bound book, before recording it on the 4473.

[Sarcastr0]

‘I believe that this policy is being implemented against it’s text. We must therefore change the text.’

[David Welker]

You shouldn't keep records of your profits and losses, lest you be classified as a business requiring licensure???

The IRS would be very interested to know this. I am pretty sure you have to report your income, even if it arises from a hobby. How exactly is one to know how much they have earned in capital gains (or losses) if they don't keep track of the price when they buy the gun and the price at which they sell the gun?

If a homeowner keeps track in a spreadsheet how much they bought their house for and then marks how much the sell it for years later in the same spreadsheet, that doesn't mean they have a "business" in buying and selling houses. The record keeping is entirely besides the point. There mere act of record-keeping should be considered praiseworthy, not a basis for punishment. What should matter is the SUBSTANCE of what is being recorded, not the record-keeping activity itself.

Well, I suppose this is what we should expect when left is in charge. They are palpably hostile to the 2nd Amendment and will seek to curtail it by any means, even if it requires illogical and punitive moves.

These people have turned into a big disappointment. Perhaps the biggest disappointment.

[hoppy025]

Well, the Democrats did ram through the $600 rule for selling things on eBay and the like, so yes, they do want you to have to keep track of everything.

[Dilan Esper]

I think Welker's right that you always had an obligation to keep records. The $600 rule is an attempt to prevent evasion, but the de facto record keeping requirement was always there, in the sense that if you got audited, you needed to have the records or the IRS had the power to estimate your income.

[Frank Drackman]

Love the DemoKKKrats "Making the Rich pay their fair share!" by sticking it to Aunt Ethel and Maw-Maw selling baby clothes on Ebay...

[hoppy025]

Exactly. The $20,000 limit made a lot more sense, in that it only picked up people actually in the business of selling. $600 picks up cleaning out old crap in a garage.

[ReaderY]

Mr. Holbrook is making a maximalist argument, that Congress didn’t intend ANY change in its statute’s meaning when it changed the language.

A weakness of maximalist arguments is that in an adversarial system, negating one side’s argument can mean accepting the opposing side’s position.

This might work to the Administration’s advantage. If the position that the regulations are invalid depends on arguing that Congress didn’t intend to change the statutory meaning at all, then if the Administration can just show that some change in meaning was likely intended, it might be able to get a court to conclude that the regulations are valid.

[Dilan Esper]

To exercise the Second Amendment right to keep and bear arms, a person must be able to obtain firearms, and is free to dispose of firearms without a license as long as the person is not in the gun business.

As far as I can tell, Holbrook pulls this completely out of his behind. Nothing in the Second Amendment says anything about the right to dispose of a weapon. In fact, I'm not convinced the government can't require any gun owner who doesn't want to keep and bear their arm to turn it in to the government or destroy it/render it inoperable. The only limitation would be the Takings Clause- maybe the government would have to pay for the gun . That's it, though.

This is a pretty brazen act of dishonesty. Holbrook has a responsibility to separate his policy views from what the Second Amendment says and requires.

[Brett Bellmore]

"Nothing in the Second Amendment says anything about the right to dispose of a weapon."

It's just the flip side of obtaining a weapon; Unless you're going to limit people to manufacturing their own guns, they have to buy them, which implies that somebody has to sell them.

Every right has a sort of cloud of ancillary rights around it, so it can actually function.

You wouldn't think a state could say, "We can't keep you from voting, but we just passed a law stating that it's illegal to approach a polling place unless you're walking on your hands. Bwah ha ha!"

Or, "Sure, you have freedom of speech, but we're going to mandate that everybody wear a gag while in public unless issued a license to go gag free!"

Look, gun controllers aren't fooling anybody when they try to act 'clever' and attack the 2nd amendment indirectly, in a way other rights aren't permitted to be attacked.

[Dilan Esper]

That makes zero sense. In fact, it's one of the silliest claims I've ever seen.

The fact that SOMEONE has to be selling or distributing weapons under the Second Amendment (a proposition I agree with) does not mean that EVERYONE has the right to do so. The Second Amendment, to the extent it says anything at all about distribution, says there's going to be a militia. Thus, it's almost certainly constitutional for the government to procure everyone's weapons, as long as they don't abridge the right to keep and bear arms.

But assuming there's a right to buy weapons from private sellers, even that doesn't get you anywhere within 1000 miles of a right to SELL weapons. The government can say you have to buy weapons new from dealers, as long as they ensure there are enough dealers that it doesn't infringe your right to keep or bear a weapon.

You and Holbrook are doing exactly what you always accuse liberals of doing- making up constitutional language that is nowhere to be found because you favor the policy implications. It's disgusting and brainless.

[Frank Drackman]

I believe selling or distributing weapons comes under
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

and there aren't any records to document this, because, there aren't any records, but I'll bet more guns are bought/sold without 4473's than with, I've got a pretty decent arsenal (60-70 depending on whether you consider a rusty Iver Johnson Cadet 22 revolver counts as a "Gun" (what Sirhan Sirhan (Assassin so bad they named him twice) killed RFK with)
and only bought a few back in the 80's on 4473's, you see, AlGore invented this thing called the "Internets"....

Frank

[Dilan Esper]

The Tenth Amendment is merely a federalism issue- Holbrook and Bellmore are actually arguing that the Second Amendment creates a constitutional right to privately sell your gun. I don't see remotely how that is true.

[Frank Drackman]

It's like the right to murder unborn babies, it's in the "Penumbra"

Frank

[Brett Bellmore]

What it guarantees is gun ownership, against governmental efforts to obstruct people from owning guns. Remember, it doesn't say, "shall not be utterly abolished", it says "shall not be infringed.

You don't violate the 2nd amendment when you finish disarming the people, you violate it when you start disarming the people.

Anyway, isn't this pretty ordinary, when dealing with rights the left actually likes? You can't even inconvenience people in exercising rights, normally, without a damned good reason.

[Zeb]

Well, you generally have the right to sell any property you own. Why would it be any different for guns?

[Voize]

I may legally own narcotics but I may not legally sell them.

[Frank Drackman]

Why would you want to?
But if you have any you don't want I'll be glad to "Dispose" of them for you (legally of course)

[David Nieporent]

The fact that SOMEONE has to be selling or distributing weapons under the Second Amendment (a proposition I agree with) does not mean that EVERYONE has the right to do so.

Right; think about abortion: that people at one time were deemed to have a constitutional right to abortion did not mean that anyone and everyone had the right to offer abortions.

[David Welker]

But licensing of abortion providers would survive even strict scrutiny, Mr. Nieporent. Protecting the life and health of patients is a very compelling interest and licensure is a narrowly tailored means of protecting life and health.

If abortion were perfectly safe and easy to perform without serious risks to life and health, restricting the selling of abortion services is a problem if you think abortion is a fundamental right. The issue in this example is that the government has a compelling interest in protecting life and health that is directly and immediately related to the performing of abortion services.

[Rev. Arthur L. Kirkland]

This is a gun nut blog. One should probably expect gun nut opinions from those invited to opine. And one should expect the gun nuts to provide, at most, half the relevant information.

[Frank Drackman]

Sorry it's not a Sex-Offender blog Coach.

[Rev. Arthur L. Kirkland]

It's a lot of things.

It's a blog for racists, led by a guy who just can't stop spewing vile racial slurs, no matter how much (or little) he tries.

It's a blog for on-the-spectrum misfits and culture war casualties.

It's a blog for superstitious gay-bashers.

It's a blog for antisemites and Islamophobes.

It's a blog for religious kooks and gun nuts.

It's a blog for the kind of losers who retreat to off-the-grid hermit shacks and idolize an antisocial malcontent like Ted Kaczynski.

It's a blog for white nationalists and virus-flouting rubes.

It's a blog for friends and supporters of un-American assholes such as John Eastman and Jeffrey Clark and for fans of disgraced jerks like former federal judge Kozinski.

It's a blog for faux libertarians and obsolete cranks who just can't abide all of this damned modernity, science, progress, inclusiveness, freedom, education, and reason -- the doomed and deplorable conservative roadkill of the modern American culture war.

[WuzYoungOnceToo]

Nothing in the Second Amendment says anything about the right to dispose of a weapon.

That's right up there with, "There's nothing in 2A explicitly covering the right to ammunition." Surely the right to sell that which you legally own is covered somewhere.

[Toranth]

Apply the same argument to paper, ink, and printing presses: do you think it would hold up?

No, it hasn't when tried there, and it's equally absurd to try with the Second when it doesn't work with the First.

[Sarcastr0]

Different rights have different contours. But no right is fully without exceptions.