Let me start off by pointing out I am not an attorney and I didn’t stay at a Holiday Inn Express last night. I did make an appearance in State and Federal District Courts with some regularity and can offer some insights.
There are reports that the President with the connivance of the Attorney General intends to redefine who is a gun dealer in order to bring every gun transaction under the umbrella of background checks. He will do this despite Title 18 USC Section 921 will tell the reader everything that is relevant to gun dealers. What may not be immediately apparent is that the statute is setting the stage for two entirely different audiences in two different forums.
Section 921 is establishing definitions that are to be applied across the board. If ATF needs to determine who falls under their regulations the definitions for various roles are found here in 921. These definitions also set the stage for criminal culpability. So 921 is both regulatory and statutory in its application.
What does this mean? Statutes (laws) give agencies regulatory power over, in this case those engaged in the firearms trade. The agency has the power to draft regulations that govern how business and record keeping and compliance will be conducted. Those companies that are licensed are held to the regulatory standards. When a licensed company runs afoul of regulations it can be sanctioned via an administrative hearing. Regulations can be modified without input from Congress.
Those companies that are not licensed are not bound by the same standards. They are, but first they have to be dragged kicking and screaming into the regulatory fold. An unlicensed entity can be criminally prosecuted, an entirely different process. The threat of criminal prosecution will drive recalcitrant companies into the regulatory scheme.
Not being an attorney I can see that the Attorney General may be able to affect regulatory definitions but the Attorney General can’t create new law. On the criminal side I would guess there is case law that falls either way as to what constitutes a gun dealer. An additional problem for the Attorney General is that §921 (a)(11)(A) is not a stand alone definition. See (21) (C) and (D) and (22) below.
(11) The term “dealer” means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term “licensed dealer” means any dealer who is licensed under the provisions of this chapter.
(13) The term “collector” means any person who acquires, holds, or disposes of firearms as curios or relics, as the Attorney General shall by regulation define, and the term “licensed collector” means any such person licensed under the provisions of this chapter.
(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;
(D) as applied to a dealer in firearms, as defined in section 921(a)(11)(B), a person who devotes time, attention, and labor to engaging in such activity as a regular course of trade or business with the principal objective of livelihood and profit, but such term shall not include a person who makes occasional repairs of firearms, or who occasionally fits special barrels, stocks, or trigger mechanisms to firearms;
(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: Provided, That proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism. For purposes of this paragraph, the term “terrorism” means activity, directed against United States persons.
In order to have an offense (a violation) there must first be prohibited conduct. The government must then prove, beyond a “reasonable doubt” that each element has been violated. Taking the definitions,above, into consideration; the government would have to prove that a single transaction makes the buyer/seller a gun dealer, that the transaction is part of a profit making scheme that takes up the accused time and attention, or in lieu of profit the transaction is rooted in terrorism.
Take a moment to look at the numbers. I’m going to use Bexar County (San Antonio) has twelve Criminal District Courts and twenty County Courts at law serviced by a staff of approximately 200 assistant district attorneys. The United States District Court, Western District of Texas, San Antonio Division has three and a half District Courts (one judge divides his time between Austin and San Antonio) and three Magistrate Judges, serviced by approximately 45 assistant US Attorneys. One hundred arrests into the Bexar County system is called Tuesday. An equal number into the Federal System on a single day is called paralysis. You will find similar numbers nationwide. The Federal system can not accommodate arrests in the numbers that most metropolitan areas see as a matter of routine.
Let’s break the system. Pick a date April 19, 2016. On that date, anybody who owns a firearm converge of the nearest Federal Courthouse, ATF Office or United States Marshal Office, in every Federal District. The intent is that everybody be prepared to self surrender on a charge of illegal transfer of a firearm. Don’t bring guns just your handwritten receipt documenting the transfer. Imagine if you will lines stretching around the courthouse consisting of people all wanting to turn themselves in. Since this is a Federal problem, there is no need for local law enforcement to be involved.
Wear your track shoes because you are going to have to outrun the FEDS in order to get arrested. In order for this to work as a protest thousands of people need to show up at each location demanding, no begging to be arrested. The Federal system will be overwhelmed.
Optional but nice to have. A band or two, food vendors, balloons to further enhance the carnival atmosphere. Extra points if the local police Chief or Sheriff shows up and points out the the Feds, “it sucks to be you.”
There is enough lead time that organizers can invite the local congress critter along for a gut check. Will this change the course of the Attorney General and the President? Absolutely not, but he needs to be challenged. Any challenge that reflects that he is a joke, not to be taken seriously, will do more to put him off his game than had he been impeached.