Would This Be Legal?

[mortablunt]

My friend has an idea to make a bit of money so he can get enough cash to get a car after his old one broke down. I offered to take him to a gun show back in my residency state because he lives in NJ and doesn't get that sort of opportunity. I told him about private transfers F2F sales where you can trade guns and moneny without licensing. He asked me if it would be alright if he were to buy a cheap gun like say a Mosin and then sell it shortly afterwards to somebody else at a small markup, and then repeat until he's reached his goal. I told him that it would be illegal because #1, VA is not his state, #2, He doesn't have a dealer's FFL, #3, he would be gun selling for profit, and #4, if he does to prison, I'm fresh out of friends. Am I right?

 

[dprice3844444]

yup

 

[Midwest]

You are right. It would be illegal.

 

[TexasRifleman]

Selling a gun for profit is not by itself illegal.

But, doing it with "primarily the purpose of livelihood and profit" is.

I think in this situation it would be easy to argue that would be the case. Advise your friend to find another side job

And doing it across state lines would only make his stay in the small room longer.

 

[Bubba613]

He's also an out of state resident buying a gun privately, which is a no-no.
Doing so at a gun show, where ATF agents hang out to watch the action, sounds really really dumb.

 

[Quiet]

Federal laws (Gun Control Act of 1968) prohibits the transfer of firearms between residents of different states, unless the transfer is done through a FFL dealer in the recipiant's state of residence.

Because he is a resident of another state, your friend can not legally transfer firearms via face-to-face/non-FFL transaction in your state of residence.

Federal felony (5 years in Federal prison + $10,000 fine) if he does so.

 

[Ash_J_Williams]

If YOU were to do it, being a VA resident, it wouldn't be legal to buy FTF, and then later sell FTF. I've done this a few times, and since it isn't my "primary source of livelihood," there's nothing illegal about it. I'm making $25, $50 bucks each time.

 

[TexasRifleman]

I've done this a few times, and since it isn't my "primary source of livelihood," there's nothing illegal about it.

Here's the whole law on this. It's sufficiently vague that ATF has successfully prosecuted for low volume.

The term "dealer" means (A) any person engaged in the business of selling firearms at wholesale or retail

Engaged in the business means, as applied to a dealer in fire- arms, 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 en- hancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms;

The term "with the principal objective of livelihood and profit" means that the intent underlying the sale or disposition of firearms is pre- dominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liq- uidating a personal firearms collection

It does not say that selling guns has to be your PRIMARY source of income, just that your primary reason for buying and selling is profit, not some other reason.

Be very careful.

 

[Ash_J_Williams]

Here's the whole law on this. It's sufficiently vague that ATF has successfully prosecuted for low volume.







It does not say that selling guns has to be your PRIMARY source of income, just that your primary reason for buying and selling is profit, not some other reason.

Be very careful.

Well, almost everything I've purchased has been something I THOUGHT I wanted, and shortly after realized I didn't need. I do my best to never overpay, so when I sell it... I'm generally going to make a little more than I spent.

as a regular course of trade or business with the principal objective of livelihood and profit

Since it's FTF, the original sale wasn't logged by anyone at all, so I'd love to see them try to make some BS claim that I never at any point intended to keep or use it. Honestly, I think the ATF has better things to do than worry with some guy selling 5 guns a years, but who knows?

 

[Jim Watson]

I think the ATF has better things to do than worry with some guy selling 5 guns a years, but who knows?

I figure it is easier and safer to nail Joe Blow for doing business without a license at home town gun shows than to catch gunrunners for real terrorists and criminals.
There was a guy here that they watched for years wheeling and dealing at gun shows. Eventually he slipped up and sold a gun to a prohibited person and they got him on multiple charges.

 

[Frank Ettin]

...Well, almost everything I've purchased has been something I THOUGHT I wanted, and shortly after realized I didn't need. I do my best to never overpay, so when I sell it... I'm generally going to make a little more than I spent...

What a coincidence. In any case, you could certainly claim that. Of course that doesn't guarantee that you will be believed.

A prosecutor might argue to a judge or jury that it can be inferred from the fact that most guns you buy you resell shortly afterwards for a small profit that you are actually in business, notwithstanding your claim to the contrary. "Pattern and practice" is used all the time to make that kind of case. So a jury might very well go along with the prosecutor and not you, especially when the prosecutor comes up with some of your posts on this board, and perhaps others.

...I think the ATF has better things to do than worry with some guy selling 5 guns a years, ....

Well, you're making a pretty high stakes bet that you're right -- and for only a few hundred dollars a year profit on the up side.

 

[Ash_J_Williams]

Well, you're making a pretty high stakes bet that you're right -- and for only a few hundred dollars a year profit on the up side.

Exactly. For only a few hundred dollars on the up side.

If that catches someone's attention, then actual crime must have ceased. Congratulations! We've won!

Seriously, if people are so paranoid that they're afraid to sell a few of their personal firearms, their own PERSONAL PROPERTY, they need a reality check.

 

[TexasRifleman]

Seriously, if people are so paranoid that they're afraid to sell a few of their personal firearms, their own PERSONAL PROPERTY, they need a reality check.

ATF has gone after folks for selling ONE gun without an FFL. It's not paranoia when it actually happens. Sadly the ATF is not above this sort of thing. No one is arguing with you; it appears to be absolutely legal.

But, that hasn't stopped ATF from going after people for doing it.

 

[Bubbles]

ATF has gone after folks for selling ONE gun without an FFL. It's not paranoia when it actually happens. Sadly the ATF is not above this sort of thing. No one is arguing with you; it appears to be absolutely legal.

Correct. I tread very carefully when dealing with the ATF. Since I'm in the same county as their Firearms, NFA, and Legal branches they are in and out of my shop all the time in some capacity.

It does not say that selling guns has to be your PRIMARY source of income, just that your primary reason for buying and selling is profit, not some other reason.

ATF doesn't care about profit, the IRS does. If making a profit were a requirement to have an FFL, a lot of dealers wouldn't need to get a license.

 

[Ash_J_Williams]

ATF has gone after folks for selling ONE gun without an FFL. It's not paranoia when it actually happens. Sadly the ATF is not above this sort of thing. No one is arguing with you; it appears to be absolutely legal.

But, that hasn't stopped ATF from going after people for doing it.

But we're talking about FTF to FTF sales... Where is the ATF involved, or even presented the possibility of being aware, unless you happen to be selling to some ATF sting operation?

 

[Frank Ettin]

...if people are so paranoid that they're afraid to sell a few of their personal firearms, their own PERSONAL PROPERTY, they need a reality check.

There's a difference between selling a gun or two from your personal collection on occasion and having a little side business buying and selling guns to augment your income a bit. The former is legal. The latter is not (at least without the correct license).

And don't underestimate the ability of a decent lawyer to effectively use circumstantial evidence to convince a jury that you're doing the latter.

...ATF doesn't care about profit, the IRS does. If making a profit were a requirement to have an FFL, a lot of dealers wouldn't need to get a license...

Exactly.

Not making a profit doesn't mean you're not in business. It just means that you're not very good at it.

But we're talking about FTF to FTF sales... Where is the ATF involved, or even presented the possibility of being aware, unless you happen to be selling to some ATF sting operation?

Pretty much no one who does anything illegal expects to get caught, and some folks get away with things.

On the other hand, some folks do get caught. And sometimes they get caught because of just plain bad dumb luck, e. g.,someone saying something to the wrong person.

 

[mortablunt]

Thanks for the information, everyone.

Thread lock requested.

 

[TexasRifleman]

Asked and answered we'll say.