the expanded definition of engaged in the business of dealing in firearms and mental health

The BSCA removed the requirement to consider income for ‘‘livelihood’’ when determining that a person is ‘‘engaged in the business’’ of dealing in firearms at wholesale or retail. The definition of ‘‘predominantly earn a profit’’ now determines earn a profit on whether the seller's intent underlying the sale or of firearms was predominantly one of obtaining pecuniary gain. Pecuniary gain per the ATF's determination means any kind of benefit wether it was financial or for personal gain. The ATF determined that a single sale does not usually qualify as engaged in the business; however, it does not quantify in the GCA or in this final rule how many sales fall within the meaning of engaged in the business of dealing in firearms. This final rule according to gun control advocacy groups like Giffords and Everytown are intended to target sellers who try and engage in firearm "trafficking" or multiple sales to persons who they choose to ignore signs that the buyer is a prohibited person. With this final rule coming into effect within 30 days of its publication, private party sellers must register as an FFL eg (FFL-01) and whenever they conduct a sale or transfer they must abide by their state's laws and federal laws which include conducting a background check using the 4473.

For mental health prohibitors, this may cut down on some illegal sales where the proposed buyer may have tried to go through the private party transfer route to bypass the . However, federal law does dictate regardless of the means of sale, the seller must have reasonable belief the person they are transferring the firearm to is not a prohibited person. With the expanded definition of 

For current CA residents, this rule does not affect them as CA is a point of contact state where all transfers must go through an FFL and no firearms may enter the state without being registered in the CFARS within 30 days of entering the state. However, it could impact some buyers who may have triggered the lifetime prohibition through a 5250 cert hearing, moved state, and then attempted to buy a firearm via private party transfer years later in a state like Maine. With the stricter regulations of who is considered engaged in the business of dealing in firearms, the private party transfer seller would have to run a NICS background check, where they would then realize the person to whom they about to sell the firearm to was prohibited under federal law as the CA mental health records.


A few concerns raised were that the rule would cause such an increase in the number of dealer applicants and licensees that ATF and NICS would not have the resources to handle the corresponding increased workload. With many states having the "Charleston loophole" active, concerns would be raised that they would still release on an undetermined when there may be a prohibiting entry.  According to the group Giffords, even a full POC state like Florida allows for releases on undetermined statuses. 



Related concern raised were that even though this final rule was proposed, most private party sellers especially ones that resided in border states to CA are already extra careful about checking for real IDs and proof of residency that evinced the buyer was a resident of their same state. 2A proponents also contend that interstate sales of firearms is illegal and CA state law prohibits any transfer of magazines, ammunition, and firearms into the state without registry. Finally, they argue that someone who wishes to acquire a firearm will a means to procure the firearms and that increasing the burden on private party sellers who may not have the financial means to become an FFL are punished. They also contend that this rule will generate more sale data that can be used in growing an illegal centralized registry that may not be immediately searchable but still searchable none the less. Furthermore, they argue that if there is another federal "assault weapons ban" passed, more firearms will be known to ATF and if there is no grandfather clause, they will be subject to either confiscation or a mandatory buyback.


Additionally given that federal mandates that all FFLs when they close must provide the last 20 years of 4473's to the ATF who does not have a date where they destroy the 4473s gives rise to concern about the growing illegal registry as many private party transfers occur because people do not want their information in a registry. 


If there were mental health patients from decades ago who acquired their firearms via private party transfer, when they attempted to purchase a firearm and now the private party seller conducted a background check, the "surprised" buyer would be prosecuted for lying per 18 U.S.C. section 922 (a)(1) as they might not be aware they triggered the federal prohibition years ago.


Pro gun control advocacy groups like Moms Demand and Everytown assert that even though some criminals will find means to acquire their firearms, this will slow the flow of firearms that enter tightly regulated states like CA and lower the rate of firearm related deaths in states with less restrictions as less readily accessible firearms will deter criminals.



A note: many term this closing the "gun show loophole". Most gunshows booths inside are run by FFLs who must already conduct the background check and 4473s regardless. This rule would be more apt to be termed the "private party transfer" exception. 
At many gun shows and around border state FFLs like Cabela's, undercover ATF agents monitor the sales going on within and outside for out of state buyers, straw purchasers, and suspicious buyers. They search for out of state plate, buyers with non state IDs, or alerts of denied persons.