Nick Johnson in WSJ: “A Glittery Gun-Control Distraction”

Prof. Nick Johnson has an article running in the Wall Street Journal which gives people a lot of missing background on Obama’s Executive Orders in regards to new guidance on when an FFL is required, including the previous history of overzealous prosecution, and then the later double cross with the “kitchen table dealer” actions by the Clinton Administration.

Now President Obama proposes moving the furniture around again. The ATF’s new guidance on the matter says that storefronts are irrelevant: “it does not matter if sales are conducted out of your home, at gun shows, flea markets, through the internet, or by other means.” The agency also emphasizes that “courts have upheld convictions for dealing without a license when as few as two firearms were sold.”

As someone pointed out, if you go to the application for an FFL:

FFL App 18a

So they are going to require gun show sellers to get FFLs, but they aren’t going to accept FFL applications for people who only do business at shows. One reason most machine gun possession prosecutions can no longer happen under the National Firearms Act (rather than 18 U.S.C. § 922(o)) is because it has been held by the courts that the government can’t charge someone for failure to pay a tax that the government refused to collect. This would seem to me to be a similar situation.

If the Obama Administration were to actually reverse or partly reverse Clinton-era policies meant to shut down hobbyists or part-time FFLs, he might actually accomplish something in terms of getting more people currently making marginal sales licensed again.

5 thoughts on “Nick Johnson in WSJ: “A Glittery Gun-Control Distraction””

  1. So if the form currently prohibits you from applying to become a FFL, if all you sell at is gun shows, can Obama get that form changed via EO? Whose jurisdiction does that fall under? The ATF?

    1. Under the administrative procedures act, they would have to do the whole notice-and-comment rule making to change the form.

      That’s the thing about these new “executive orders”. They are called “guidance” because they do not have the force of law.

      1. It’s likely that they can change the policy in advance of a change to the form.

  2. So submit a form with “yes” checked, get denied, appeal through the courts. Can’t license a right.

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