Firearms sales in the United States, as measured by the number of completed National Instant Criminal Background Check System (NICS) background checks, are near an all-time high. In February, 2016, there were a whopping 2.6 million background checks! But those sales numbers only reflect the sales of new guns sold by Federal Firearms License (FFL) holders. The bigger and largely unreported news is of the upswing in the sales of used guns (“secondary sales”) by private parties. At a recent gun show, I observed that the folks who were there selling guns from their private collections were met by very eager buyers. At one private party sales table a gent sold out of every gun that he brought with him, all on a Friday– the first day of a three-day gun show. Everywhere at the show I heard and saw the same thing: Buyers who were primarily looking for battle rifles, scoped long-range rifles, and handguns with double-column magazines, and looking to buy them without any paperwork. Twice, I heard husbands say to their wives: “No, not that table, they have a license.” The tables being run by FFL holders were not nearly as busy as the private party tables. This was the busiest Friday I had ever seen at a show.
Understanding the Federal Gun Laws
Up until 1968, guns could be ordered by mail. With the enactment Gun Control Act of 1968, the sales of all new guns could only be made by FFL holders. Under current law, any FFL holder who brings any new or used gun into their inventory must log it into their Bound Book (or computerized equivalent) by the close of the next business day after the acquisition or purchase, and they must record sales or other dispositions within seven days. When a FFL holder sells any post-1898 manufactured gun, the buyer must fill out a Form 4473. Starting in November of 1998, the NICS phone system went live. So now, a NICS check must be accomplished before the buyer walks away with his purchase from an FFL. The Form 4473 is a permanent record, and any FFL holder who lets his license lapse must turn in his books and forms to the BATFE’s Out-of-Business Records Center. There, the records are digitized for future reference, making them a de facto gun registration database.
In addition to Federal law, America has a patchwork of state and local gun laws. This can be both good and bad. The good side of this is that if you dislike the laws in your state, you can simply “vote with your feet” and move to another state. The bad part is that when you travel, you might unwittingly come under the jurisdiction of some strange gun laws. For example, in Massachusetts, shooting ranges are prohibited from posting up targets that resemble human beings. In Clark County, Nevada, it is illegal to bring a concealable firearm into the county unless it is registered with the Las Vegas Metropolitan Police Department. (Editor's note, registration is now defunct in Clark County). In North Carolina one cannot carry a firearm in a funeral procession. And in Illinois, some local governments have enacted magazine capacity limits, including Chicago (15 rounds), Oak Park (10 rounds), Aurora (15 rounds), and Cook County (10 rounds).
Under Federal law, since 1968, it has been illegal to be “engaged in the business” of buying and selling firearms with the principle purpose of earning a living without obtaining an FFL. Oddly, neither Congress nor the BATFE has ever set a threshold of how many gun sales per year constitutes being “engaged in the business”. Thus, it has been largely up to the persuasive power of Federal prosecuting attorneys to convince juries of such status, on a case-by-case basis. The ambiguity has never been resolved. And recently, it got even worse. In January 2016, President BHO announced executive actions that were intended to intimidate private gun collectors, threatening them with prosecution, even if they sold just an ambiguously “few” guns a year with the intent of making a profit. A newspaper account stated: “Obama said that anyone ‘engaged in the business’ of selling firearms would need to obtain a license [or face prosecution]. Attorney General Loretta Lynch further clouded the water by saying this could mean as few as one or two gun sales.” These executive actions are unconstitutional, because they were aimed at intrastate commerce. It will surely eventually be tested in the courts, but for now, Obama’s expansive “redefinition” of the term gun dealer seems to be intended to put fear, uncertainty, and doubt into the minds of private collectors who sell guns from time to time, to upgrade or reduce their personal collections.
The Last Bastions of Firearms Freedom
In most States it is perfectly legal for used guns to be bought and sold by private parties, with no paper trail. Under the protection of the Second Amendment, this is the way it should be! The government has no business restricting private sales of used goods inside of any of the 50 States. (The Interstate Commerce Clause only gives jurisdiction over interstate sales. So, by definition a used gun that stays within the boundaries of a State is no longer in interstate commerce and has no Federal legal nexus. It is just another piece of private household goods. And as long as both the seller and the buyer are adult residents of the same State, then they are conducting legitimately intrastate commerce. No nexus means no jurisdiction.)
A few States now require private party sales of used guns to be conducted through FFL holders with NICS background check and the Federal paperwork. If you live in a state where private party sales have been banned, then you should either move or get busy trying to get those laws changed. If you feel stuck in one of these States because of family or work obligations, then you might have to make do the best you can. One good approach in these States is to acquire cartridge guns that have frames (receivers) that were manufactured in or before 1898. These Pre-1899 Guns thankfully are not classified as “Firearms”, and as Antiques they are exempt from Federal recordkeeping requirements and are also exempt under most State laws. (Be sure to consult the laws in your jurisdiction.)
Another possibility, at least in some States, is to manufacture your own guns. Again, be sure to check on your State and local laws, but even in most of the States where private party sales are banned, there is no paperwork required for gun receivers that you manufacture yourself. Nearly anyone with basic mechanical skills can finish up an 80%-complete receiver and then assemble an AR-15 with the other readily available (unrestricted) parts that make up the rest of the rifle. Even someone who is a klutz at machining can set up a Ghostgunner automated milling machine or get through the many steps in casting an inexpensive “Pour Freedom” polymer receiver, using molds available from AR15Mold.com.
Under current U.S. law it is only the serialized receiver that constitutes the “firearm”. That is the only restricted part and hence the only part that requires the Form 4473 paperwork. All of the rest of the parts required to assemble a gun can be bought via mail order or at gun shows without any paperwork. In many other countries, any gun part that is under pressure when firing (barrels, bolts, and gas pistons) are also restricted, and their purchase comes under the same scrutiny as would the purchase of a complete firearm. This same legal standard might eventually become adopted in the United States, so it is important that you not just acquire your AR receivers but also your complete upper receiver/barrel and bolt assemblies without paperwork, soon.
Their “Loophole” is Your Freedom!
The gun-grabbing Leftist-Statists have recently become fond of the phrase: “Closing the gun show loophole”. This is purely a political phrase with no basis in fact. Their goal is to turn all gun sales into paper-traced transactions with a Federal background check. If they succeed in this, then they may end our firearms ownership privacy in just one generation. Once this system is in place, then there will be no firearms ownership privacy and there will be no free secondary market. The pool of privately-owned arms is presently quite opaque, but they aim to make it all-too transparent and fully accountable to Big Brother. Don’t fall for their rhetoric. Their real goal is to enslave you. They are just doing this under the guise of “commonsense gun regulations.”
Every freedom-loving American gun owner should maintain at least a part of their gun collection that has no paper trail. And this should include at least one battle rifle chambered in 5.56mm NATO or 7.62 NATO. This sans papiere part of a gun collection is what I call my Kosher Collection– the guns that are not traceable to me as an individual. This is important, because the day may come when laws change and Federal agents (or their local minions) will come knocking on doors, collecting papered guns. So you will want to have some guns that are either entirely untraceable, or that have broken paper trails that you’ve bought anonymously with cash from private parties.
Ideally, your Kosher Collection should be stored so well hidden that it cannot be found, if burglars or other miscreants ever seized possession of the rest of your other guns. In essence, your rule should be: Keep your papered guns stored in your gun vault and your paperless guns hidden in your walls or cached underground. Your Kosher Collection must be kept as viable tools for self defense or for the common defense, for the long term. Therefore, it stands to reason that you should also keep stored with them a good supply of ammunition, spare magazines, cleaning equipment, and a few spare parts. These too should be kept well-hidden.
Shortages Are Looming
The current surge in gun buying is not public hysteria. It is just people looking out for themselves and their families, in their rational self-interest. I believe that it is just a precursor of more frantic buying in the next eight months. Don’t be surprised to see significant shortages of battle rifles (with commensurately higher prices), particularly AR-15s and AR-10s, and full capacity magazines, before November. Also in anticipation of the presidential election, I expect to see shortages of gun burial tubes and perhaps even some shortages of 6″ and 8″ diameter PVC pipe threaded end caps.
Remember: We are living in the Age of Deception and Betrayal. Conduct yourself stalwartly, in ways that are fitting for these parlous times. – JWR