Comments made by Obama administration officials to the media regarding the president’s new initiative on guns appear to be at odds with written guidance the Bureau of Alcohol, Tobacco, and Firearms has issued in response to the White House’s direction on Tuesday.
"ATF will make clear that whether you are ‘engaged in the business’ depends on the facts and circumstances," Valerie Jarrett told reporters on Monday. "On factors such as: whether you represent yourself as a dealer, such as making business cards or taking credit card statements. Whether you sell firearms shortly after they’re acquired or whether you buy or sell in the original packaging."
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"Numbers are relevant. The ATF and DOJ did not identify a magic number of weapons that makes you engaged in the business because that would limit their ability to bring prosecution."
Jarrett then said that selling as few as two firearms could require a license. Later in the call, Attorney General Loretta Lynch said that the threshold could be as low as one firearm sale. "It can be as few as one or two depending upon the circumstances under which the person sells the gun," she said.
However, the ATF’s written guidance on federal firearms licensing emphasizes that whether sales are repetitive is a key determination in whether or not an individual needs a license. "As a general rule, you will need a license if you repetitively buy and sell firearms with the principal motive of making a profit," the guidance reads. "In contrast, if you only make occasional sales of firearms from your personal collection, you do not need to be licensed."
The guidance goes on to assert, as Jarrett did, that there is no "magic number" for how many firearms somebody could sell before needing to acquire a license and some court cases have involved a small number of firearms being sold. "There is no specific threshold number of firearms purchased or sold that triggers the licensure requirement," it reads. "Courts have looked at both the quantity of firearms sold, as well as the frequency of sales, as relevant indicators. When combined with other factors, selling large numbers of firearms or engaging in frequent transactions may be highly indicative of business activity."
The guidance goes on to outline different situations in which sellers might not need a license. The examples provided indicate that individuals selling a substantial number of inherited firearms, collectors selling personal firearms occasionally and spending profits from sales on additional guns, and others selling firearms in order to finance certain expenses, such as paying for college tuition, would not need a license.
One former high-ranking ATF official with decades of experience at the agency said that cases involving somebody who sells firearms without a license are rarely pursued.
"Typically you couldn’t get a U.S. attorney to take a case like that because it lacks jury appeal," the former official said. "You’re going to prosecute some old guy for selling one gun? It would have to be some real special circumstance like a major drug trafficker was caught selling a gun before they press that, and how likely would that be?"
The potential confusion caused by the administration’s public comments may result in people applying for licenses they do not need.
"It could tie up resources," the former ATF official said. "It could keep them from doing compliance inspections."
The official’s comments mirror those of ’90s-era officials who supported the Clinton administration’s efforts to slash the number of licensed gun dealers in the early 1990s.
"We have about 250 inspectors to inspect more than 250,000 firearms licensees, and our director has testified in Congress that we get around to large dealers once every two or three years," an agency spokesperson told the New York Times in 1994. "The smaller ones, the kitchen-table dealers, might not see an inspector for 10 years."
Though the president and other administration officials have framed his actions as a way to narrow the so-called "gun show loophole" and require more gun show sellers to perform background checks, the federal firearms license application form explicitly tells those who only sell firearms in such settings that their applications will not be approved.
"The impact of that is either, if you just want to repeatedly buy and sell at gun shows you either can’t do it, or you need to go ahead and get premises and set up a little shop which you can have in your home," the former agency official said. "To have one in your home you have to comply with your local zoning ordinances."