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HK-40
07-21-2012, 10:29 AM
Is there a LEGAL definition of "DEALING IN FIREARMS W/O A LICENSE"?

Librarian
07-21-2012, 11:27 AM
Is there a LEGAL definition of "DEALING IN FIREARMS W/O A LICENSE"?

Yes. For example, http://www3.ce9.uscourts.gov/web/sdocuments.nsf/ddfcae883f401d45882576f100661bbb/fa13b8fd3f4e5c918825773f006937d6?OpenDocument

Ninth Circuit Model Criminal Jury Instructions
8.53 FIREARMS—DEALING, IMPORTING OR
MANUFACTURING WITHOUT LICENSE
(18 U.S.C. § 922(a)(1)(A) and (B))

The defendant is charged in [Count _______ of] the indictment with [dealing] [importing] [manufacturing] firearms without a license, in violation of Section 922(a)(1) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant was willfully engaged in the business of [dealing in] [importing] [manufacturing] firearms within the dates specified in the indictment; and

Second, the defendant did not then have a license as a firearms [dealer] [importer] [manufacturer].

Comment

For a person to engage in the business of dealing in firearms, it is not necessary to prove that buying and selling firearms was the defendant’s primary source of income, or to prove a specific number of sales, or to prove a specific dollar volume of sales.

The government must prove beyond a reasonable doubt that the defendant engaged in a greater degree of activity than the occasional sale of a hobbyist or collector, and that the defendant devoted time, attention and labor to selling firearms as a trade or business with the intent of making profits through the repeated purchase and sale of firearms. See United States v. Breier, 813 F.2d 212, 214-15 (9th Cir.1987) (citing United States v. Wilmoth, 636 F.2d 123 (5th Cir.1981)). Willfully, as used in this statute, requires proof that the defendant knew that his or her conduct was unlawful, but does not require proof that the defendant knew of the federal licensing requirement. Bryan v. United States, 524 U.S. 184, 198-99 (1998).

Now, if you're looking for a hard threshold - say, one can sell up to 5 but no more - no, that does not exist.

Similarly, PC 16730 (http://law.onecle.com/california/penal/16730.html) describes what California means when it allows 'infrequent' sales: (a) As used in Section 31815 and in Division 6 (commencing
with Section 26500 (http://law.onecle.com/california/penal/26500.html)) of Title 4, "infrequent" means:
(1) For handguns, less than six transactions per calendar year.
(2) For firearms other than handguns, occasional and without
regularity.
(b) As used in Section 27900, the term "infrequent" shall not be
construed to prohibit different local chapters of the same nonprofit
corporation from conducting auctions or similar events, provided the
individual local chapter conducts the auctions or similar events
infrequently. It is the intent of the Legislature that different
local chapters, representing different localities, be entitled to
invoke the exemption created by Section 27900, notwithstanding the
frequency with which other chapters of the same nonprofit corporation
may conduct auctions or similar events.
(c) As used in this section, "transaction" means a single sale,
lease, or transfer of any number of handguns.

fiddletown
07-21-2012, 1:25 PM
And the federal law is --

18 USC 922(a)(1) provides, in pertinent part (emphasis added): (a) It shall be unlawful—

(1) for any person—

(A) except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce;...

"Engaged in the business" is defined at 18 USC 921(a)(21) as follows (emphasis added):(21) The term “engaged in the business” means—

(A) ...

(B) ...

(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;..An occasional purchase and sale of a firearm at a profit doesn't make one "engaged in the business." One must do that repetitively in order to be "engaged in the business" and thus unlawfully dealing in firearms without a license.

The difficulty for someone who plans to do that sort of thing is that it's not clear where the line is.

HK-40
07-21-2012, 1:36 PM
So there is no clear line......

Lets say a guy really knows His WWII rifles. He is a plumber or a truck driver NOT an FFL dealer.

The guy spends a lot of His FREE time researching,going to stores, to Gun Shows, Auction Arms, Gunsamerica etc. And makes proffit in process.
Is He guilty of anything?

fiddletown
07-21-2012, 1:49 PM
So there is no clear line......

Lets say a guy really knows His WWII rifles. He is a plumber or a truck driver NOT an FFL dealer.

The guy spends a lot of His FREE time researching,going to stores, to Gun Shows, Auction Arms, Gunsamerica etc. And makes proffit in process.
Is He guilty of anything?If he's doing it on a regular basis, he very well might be if he doesn't have an FFL. His main occupation could be one thing, but he could have a second or side business.

hawk1
07-21-2012, 2:03 PM
So there is no clear line......

Lets say a guy really knows His WWII rifles. He is a plumber or a truck driver NOT an FFL dealer.

The guy spends a lot of His FREE time researching,going to stores, to Gun Shows, Auction Arms, Gunsamerica etc. And makes proffit in process.
Is He guilty of anything?

You were given a clear answer. If you/they don't feel that's enough of an answer, then continue to buy and sell as often as you wish. But be prepared for the consequences, both state and federal...

SVT-40
07-21-2012, 4:16 PM
So there is no clear line......

Lets say a guy really knows His WWII rifles. He is a plumber or a truck driver NOT an FFL dealer.

The guy spends a lot of His FREE time researching,going to stores, to Gun Shows, Auction Arms, Gunsamerica etc. And makes proffit in process.
Is He guilty of anything?

If this said person was a licensed collector and he was acquiring and disposing of curios and relics to improve his collection he would in all likelihood be okay, because improving ones collection is one of the allowed activities collectors can do.

However if he were buying and selling firearms with the intent of making a profit he would be a dealer C&R license or not.

It would be okay to acquirer five Mosin Nagant rifles from an on line vendor with the intent of keeping the best one or two for his collection, and disposing the other three or four. It matters not if the collector makes a profit when disposing of the rifles which do not fit in his collection.