COMMENTARY: Currently under consideration this legislative session are House Bill 50 and Senate Bill 48, titled “Background Checks on Gun Transfers.” The bill has been advertised as closing the “gun show loophole.” The real goal of the bill is to end private-party gun sales and gun shows in the state regardless of permissions provided for by federal law.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rules are thorough and clear. The rules say that private-party sellers in New Mexico cannot sell firearms to someone who is not a resident of New Mexico.
Per the 2010 ATF Gun Show Guidelines, private-party sellers are expected to verify the buyer’s state of residence and determine within a reasonable degree of certainty that the buyer is allowed to own a firearm. Further, a person is required to have a dealer license if “you repetitively buy and sell firearms with the principal motive of making a profit.”
A person, however, is not required to have a license if they “only make occasional sales of firearms from … [their] … personal collection.” These rules have been reiterated in the 2013 ATF publication Best Practices: Transfers of Firearms by Private Sellers and in the 2016 ATF publication Do I Need a License to Buy and Sell Firearms. These rules also state that out-of-state visitors can buy long guns from a federal firearms licensees (FFL), but are not allowed to buy from or sell to a private party.
Finally, at gun shows, FFLs are required to follow all laws and regulations as if they were conducting business in their retail location.
Everytown For Gun Safety — the lobbyist for HB 50 and SB 48 — says private party sales allow felons to buy guns online. The ATF rules are clear here too: Online sellers must ship their guns to a FFL willing to receive them and run a background check on the buyer. That Everytown For Gun Safety found felons trying to buy a gun from one of their fake online ads only means that criminals are criminals. It so happens that those banned from buying a firearm also come into FFL retail outlets fully knowing they will not pass a background check just to see if that FFL would be willing to sell it to them anyway.
In light of ATF rules, single private-party sales that take place among friends (even if they make the connection via Facebook or other online forum group) are lawful as long as both parties are residents of the same state. Private-party sellers at gun shows who attend one or more shows and always have used firearms on hand for sale may be in violation of the law.
But, how much money constitutes a profit? And the line between repetitive versus occasional sales is fuzzy, too. Are there private-party sellers at New Mexican gun shows in violation of the law? Possibly. But the real issue is: How would we know? The ATF does not regularly send agents to gun shows to verify compliance. Several ATF agents in New Mexico have told me privately that the ATF does not have the manpower to do so. A high-ranking ATF official said to me that he could not expect agents to work seven days a week (most gun shows are on weekends).
The two bills do include a provision to allow a FFL to facilitate private-party transactions. When the Senate version of the bill was under discussion, lawmakers commented that a dealer could charge a “reasonable fee” for the work.
But here is the kicker: A private-party sale would use the FFL’s time and resources, and the FFL becomes involved in the transaction because it is the FFL that verifies the Form 4473 is completed correctly and that both the buyer and seller are state residents. So, what fee would you charge to open yourself up to the liability of an incorrectly or fraudulently completed form, or to make up for the lost sale from a real customer because you are busy facilitating a transaction between two people who are not customers?
I can think of a fee, but it would never in a million years be described as reasonable. That said, there are over 900 FFLs in New Mexico; those that are individuals but without a retail store might think facilitating private-party transactions would be a nice income stream.
Even if these bills become law in New Mexico, we are left with the same issue. Federal law allows private-party sales and the ATF just is not funded and staffed to monitor sales between individuals. Essentially, this law will stop private-party sales between people trying to do it right. Those who were not following the law anyway will carry on. The ATF will remain understaffed and underfunded to do anything about it.
Or how about this: Are you charity-minded? Ask the Lions Club in Las Cruces how much they depend on their biannual gun shows at the city’s convention center to fund their programs. The show is next weekend, Feb. 25-26, so why not stop by and find out?
Elisabeth Miller is a seasoned communications and government relations expert whose guidance has been relied on by public, private and government organizations alike. She holds a Ph.D. in political science from Claremont Graduate University. Her areas of expertise are issue/crisis management, immigration law, and border issues. Most recently, she was a diplomat with the U.S. State Department serving in Ciudad Juárez. Currently she serves New Mexico as a citizen member of the N.M. Law Enforcement Academy Board. She moved to Las Cruces in 2015 when her husband opened Miller Guns & Ammo.