At the end of the day, the administration’s big move on background checks was, instead, a 15-page brochure or “guidance” which explains the relevant federal statutes and regulations concerning firearms dealing and summarizing its view of the controlling case law.Even though the president cannot unilaterally expand the law, he can still instill fear in gun owners and intimidate them into believing that private transfers are now illegal. ATF can take his directive push the envelope with marginal cases that would be ignored in a less agenda-driven administration. They may well be looking to “make an example” of somebody, especially in the realm of sales advertised online.
Obviously, chilling otherwise lawful firearms transfers could be just as effective as restricting such activity with passage of a new law or regulation.There can be little doubt the president knows this and why he and administration officials have repeatedly said, “even 1 or 2 sales” can make one a dealer.
Based on evidence from past practices, the administration will likely try to have it both ways – revoke licenses for “dealers” who don’t sell a “sufficient” number of firearms, but prosecute those who sell a small number of firearms without a license. In the 1980’s for example, there was evidence of ATF revoking the FFL of a person because he only sold three guns during the year, while simultaneously prosecuting another person for selling three guns that year without a license. And during the Clinton administration, after ATF had forced low-volume private sellers to become FFLs, the agency then aggressively reduced the number of FFLs for lack of business activity.