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Caution – New Federal Rule May Require a License Before Selling Your Firearm

Caution - New Federal Rule May Require a License Before Selling Your Firearm

On April 11, 2024, the Department of Justice published a new rule that expands the breadth of individuals required to obtain a federal firearms license before selling guns–even if they are part of personal firearm collections. The penalty for violating the new rule could include up to five years in prison, a fine up to $250,000, and/or forfeiture of the firearms involved in the sale.

This new rule is causing chaos and confusion across the country. If you don’t know what to do, you are not alone. The rule has already been challenged in court, but until there is more clarification, you need to be careful.

If you have questions about compliance with federal firearm license requirements or have been arrested for a firearm related offense in Florida, you can work with a criminal defense lawyer to fight for your innocence, get your charges reduced, or get your possible sentence reduced to the lowest possible sentence. We welcome you to contact us today for a free consultation.

Previous State of the Law

Until this rule change, (1) people engaged in the business of selling firearms, (2) people engaged in the business of repairing or modifying firearms; and (3) firearm pawnbrokers needed a license to conduct that business. That first class of individuals was confined to people who were buying or selling firearms “with the principal objective of livelihood and profit.” This definition, particularly including the term “livelihood” was productive in keeping licensure requirements to professional firearms dealers. However, in 2022, Congress passed the Bipartisan Safer Communities Act which struck that language and changed the standard to include anyone who was buying or selling firearms “to predominantly earn a profit.” However, the statute excluded those improving or liquidating a personal firearms collection. However, the recent change in the ATF rule–purportedly in a response to that small statutory change–consisted of nearly 20 pages of regulatory changes described below.

Expansion of the Law – Personal Firearms Collections and Intent to Earn a Profit

The changes in the law leave gun owners with more questions than answers. In a nutshell, the new rule changes modified who would be considered a dealer and what activities the law will now consider being engaged in the business of selling firearms. Those included in the new definitions will be required to obtain a Federal Firearms License and comply with all requirements that go along with that license. In addition to the three categories previously mentions.

Now, after the 2024 rule change, those “engaged in business” will include those who buy for or sell firearms from a personal collection. Federal regulations define a “personal collection” as “personal firearms that a person accumulates for study, comparison, exhibition, or for a hobby.” While Section 921(a)(21)(C) of the Federal Code clarifies this won’t include people who only make “occasional sales, exchanges for the enhancement of a personal collection or for a hobby,” the ATF, in their guidance publication, makes clear that there is not a “bright line” rule. That means that it will be within the discretion of the Federal Government to decide who to prosecute and who not to prosecute in instances where people buy and sell firearms for a personal collection. So, if the Government decides you are buying and selling from a personal collection at a higher rate than occasionally, and you don’t have a license, you may be subject to a civil suit or criminal prosecution.

Another aspect that may open someone up to requiring a license is whether, even if selling from a personal collection, they are buying or selling firearms with the intent to earn a profit. So, by way of example, if you are selling a firearm to liquidate part of a personal collection, or selling a firearm to purchase a more expensive firearm, you may be breaking federal law unless you hold a federal firearms license. It is also concerning that the standard is not whether someone actually made a profit in the sale, but only if they intended to make a profit.

Finally, the government has expanded the the definition of a dealer to encompass all possible mediums of sale to include sales conducted “at a gun show or event, flea market, auction house, or gun range or club, at one’s home by mail order, over the internet (e.g., online broker or auction), through the use of other electronic means (e.g., text message service, social media raffle, or website), or at any other domestic or international public or private marketplace or premises.” So, if you own a personal collection of firearms and you participate in any sale–even a private sale with a friend–in which you intend to make a profit from that sale–you may need a federal firearms license.

Expansion of the Law – Rebuttable Presumptions

In civil and administrative proceedings against individuals under the newly-expanded rule, the Government may have the benefit of rebuttable presumptions on the questions of whether the individual was engaged in the business of dealing in firearms and did so with the intent to predominantly earn a profit. One of the ways the Government can gain the benefit of these presumptions is by participating in more than one firearm sale within 30 days of each other. That means that the burden will be on the individual to disprove those points as opposed to requiring the government to prove those points. That may put individuals facing claims by the Federal Government at a huge disadvantage in defending their rights in court.

For a more detailed description of the rule change and its implementation by the Federal Government, see the publication by the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Federal Firearms License Application Process

Ultimately, the primary concerns about these rule changes are that they are incredibly broad and leave a lot of questions for gun owners while giving immense enforcement discretion to the Government. In order to avoid the issues the new rule may cause, firearm collectors can apply for a Federal Firearms license.That process involves paying a fee and submitting the application found at the ATF’s website. Once the application and relevant fees are received by the Federal Government, they will conduct a background check and review of the application. If the background check is cleared, there will be an in-person interview with a field office supervisor and a final review of the application before approval.

Firearms Civil and Criminal Defense Lawyer in Florida

If you’ve received notice of a violation or been arrested for a firearm-related charge in Florida, please contact our civil litigators or criminal defense lawyers for a swift and aggressive response.

Our experienced team regularly helps people charged incorrectly, unlawfully or in need of a strong defense, to gain a future free from the consequences of civil judgments, prison, and a criminal record.

Attorney Alec M. Waid, Esq., was a special prosecutor at the State Attorney’s Office handling primarily firearm-related cases before he joined our civil litigation and criminal defense teams. So we are well equipped with specialized and advanced knowledge in the area of gang-related charges.

Free Consultations

Our Florida civil litigation and criminal defense attorneys at Battaglia, Ross, Dicus & McQuaid, P.A., are part of one of Tampa Bay’s most prestigious law firms. We have the reputation and connections to make things happen.

Contact us today for a free consultation to get started or CALL (727) 381-2300

Award-Winning Attorneys at Battaglia, Ross, Dicus & McQuaid, P.A.

We are the law firm that you call when you want the best attorneys at a fair and reasonable price. When you walk into court with one of our attorneys by your side, you will be treated differently. Our lawyers have spent their careers developing connections and insights that will help your case.

For more information please contact us at Battaglia, Ross, Dicus & McQuaid, P.A. to schedule a free consultation with an attorney today. We have three convenient locations in Pinellas County and Hillsborough County to better serve you.

Battaglia, Ross, Dicus & McQuaid, P.A 5858 Central Ave suite St. Petersburg, FL 33707 (727) 381-2300

Battaglia, Ross, Dicus & McQuaid, P.A. – Downtown Office 136 4th St N #2233 St. Petersburg, FL 33701 (727) 381-2300

Battaglia, Ross, Dicus & McQuaid, P.A. – Riverview Office 12953 US-301 #102 Riverview, FL 33578 (813) 639-8111

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