Change of the term "engaged in the business" in Federal Firearms Law

 

On June 25th, 2022, the gun control compromise, 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, was placed into law.

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 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;

(skip)

(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;

(skip)

(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: 

 This correspondent does not see any clarification in the changes of these words.

There does not seem to be any significant change for 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.

 

This correspondent expects 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.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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