A Sign For Our Times: “Not Engaged In The Business”

Bottom Line, Up Front (BLUF): It is time to print a “Not Engaged In The Business” notice to post at your gun show table.

Joe Biden has signed a House and Senate-reconciled version of S. 2938, the “Bipartisan Safer Communities Act”. This is the 80-page, ultra-fast-tracked, RINO “compromise” anti-gun rights legislation package. It passed with a 65 to 33 majority in the Senate, and the next day it sailed through the Democrat-dominated House of Representatives with a 234 to 193 majority, in just a few hours. The date of effectivity has not yet been announced.

One of the lesser-known provisions of this legislative monstrosity redefines the term “Engaged In The Business”, for sellers of firearms. To explain: In 33 of the 50 states, it is perfectly legal for private parties to make casual secondary private intrastate sales of modern guns without any paperwork or a “Mother May I?” phone call to the FBI. (Of course, consult your state and local laws before making any private party sales.)

At issue in S. 2938 is a redefinition of the term “engaged the business” in Section 921(a) of Title 18, United States Code. This could create many unwitting felons, if a private party intrastate gun sale turns a profit. Instead of more logically defining “engaged the business” as selling X number of guns per year, or making X Dollars of gross sales, or X Dollars of profit per year, this legislation trades one vague definition for another one that could ensnare many casual gun sellers.  Here is the key passage:

SEC. 12002. DEFINING ‘‘ENGAGED IN THE BUSINESS’’
Section 921(a) of title 18, United States Code, is amended—
(1) in paragraph (21)(C), by striking ‘‘with the principal objective of livelihood and profit’’ and inserting ‘‘to predominantly earn a profit’’…

And it includes this clarification:

“‘(22) The term ‘to predominantly earn a profit’ means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining 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…“

It is time to print signs

Therefore, I have a strong recommendation for anyone without an FFL who rents a gun show table in a private party sales-legal state and brings any post-1898 guns to sell or trade: You should print out and prominently post this notice in a bold 24-point or larger font on your table that reads:

With that notice, as long as you don’t make repeated sales that could be deemed with the intent of making a profit rather than collection upgrading, or knowingly sell a gun to a minor or to other prohibited person (i.e. a terrorist, a felon, a drug user, or sale across state lines), then you should be fine.

I am confident that this new law will not survive a court test, especially given the higher standard of judicial scrutiny dictated by the Supreme Court’s recent Bruen decision. To wit: scrutinizing whether a law is: “comported with history and tradition. It will fail to pass constitutional muster under any of the standards of scrutiny that the highest court has “applied to enumerated constitutional rights”.  In effect, if there was not any law on the books or any case law that predated 1791 — the year that the 2nd Amendment was enacted — pertaining to what constituted being “engaged in the business” of firearms sales, then this new law will almost surely be voided. Oh, and stand by for lots of other state and federal gun laws to soon be voided, in light of Bruen.

But of course, I’m not an attorney, so please consult one who is licensed in your state. – JWR