selling guns

[beware of the ATF]

NEAL KNOX REPORT

‘Engaging’ Traps
More Collectors

By Neal Knox

WASHINGTON, D.C. (Oct. 20) – Eight St. Louis area collectors were indicted Sept. 28 for “engaging in the gun business” without a Federal Firearms License. They are the latest victims in the 40-year battle over the fuzzy definition of who must have an FFL.

Vaguely defined “unlicensed dealing” carries more severe punishment than some willful violations by licensed dealers – plus the potential forfeiture of every gun in a collection, and the loss of gun ownership rights, firearms hunting rights, and often even voting rights – for life.

In addition to the ruinous legal costs of fighting a felony offense punishable by up to five years imprisonment and $250,000 fine, the St. Louis collectors – five of them 60 to 79 years old – have had 572 firearms seized.

Their guns were already the subjects of civil forfeiture suits. And the criminal indictments also demand their forfeiture – including antiques which are not subject to the Gun Control Act.

The grand jury also indicted a licensed dealer for allegedly selling at gun shows without maintaining required records or conducting background checks – something clearly forbidden in BATF instructions, but only as a misdemeanor punishable by up to one year imprisonment and/or $100,000 fine.

The nine indictments are the result of a year-long BATF investigation in which undercover agents traveled to gun shows in other states to buy and sell guns.

The eight collectors are in a Catch-22. They do not qualify for an FFL under the laws and regulations imposed during the Clinton Administration, which upped the $10 annual license to $500 and required licensees to have a locally sanctioned business with special security systems and regular hours.

Those changes succeeded in meeting President Clinton’s stated goal of reducing the number of dealers – which dropped from about 260,000 to less than 60,000.

Because of those more stringent rules for obtaining a license, the gray area between buying and selling guns as a hobby, and not for “livelihood and profit,” has broadened.

James Martin, lawyer for one of the indicted men, 69-year-old Caesar Gaglio, told the St. Louis Post-Dispatch his client is a collector who did not need a license for the relatively few guns he sold. BATF had purchased seven guns from him at gun shows over a five month period. At a later show agents observed him at a table “with about 10 handguns and six long guns for sale.”

Martin said Gaglio “has a large personal collection and he has been retired. He has sufficient income from his pension and investments to support himself.” He was not trying to make his “livelihood” from gun sales, Martin said. The law exempts from the license requirement anyone who “makes occasional sales, exchanges, or purchases of firearms for the enhancement for a personal collection or for a hobby …”

In the raid on another indicted man, Elmer Pigg, 79, agents seized 138 guns and “$18,770 … derived from illicit gun sales,” according to BATF.

The BATF and its predecessors have always opposed any objective standard of what constitutes an “illicit gun sale” – as opposed to unlicensed buying and selling for the purpose of enhancing a personal collection, which is specifically authorized in the law.

At the 1968 NRA convention in Boston, officials from BATF’s predecessor, the Alcohol and Tobacco Tax Unit of the Internal Revenue Service, discussed what constituted “engaging in the firearms business” at a crowded NRA Gun Collectors Committee Meeting.

The Midwest Region ATTU director considered the dividing line six gun sales in a year. The head of Boston ATTU contended two sales made a person a dealer. (That guy later charged a Fall River, Mass. memorial group with failure to register the 16-inch guns on the Battleship Massachusetts.)

Significantly, the ATTU official from Washington declined to give an objective definition, saying “dealing” should be decided on a case-by-case basis.

In 1979, while I was NRA-ILA Director, we copied the McClure-Volkmer bill’s definition of “engaging in business” directly from a landmark court case. At BATF’s insistence, that definition was fuzzed before the remnants of the bill passed in 1986.

What so often happens in cases of “unlicensed dealing” is that the accused cannot afford the legal costs to fight the case, and agrees to a single felony offense – losing all gun ownership rights – and forfeiting many thousands of dollars worth of guns. Those cases “make law,” further encouraging BATF.

The St. Louis indictments are the type of precedent-setting cases that caused us to create the NRA Firearms Civil Rights Legal Defense Fund in 1978 – which I hope will assist these cases.

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