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Of various topics discussed at such get-togethers, selling guns at auction is certainly explored. In concert with selling guns, the overall laws and rules, political winds, and court rulings are often talked about as well.
Given President Obama’s recently discussed executive actions, this seemed like a great time to explore some gun facts as well as a few gun myths.
Current laws, court rulings, prevailing legal standings and the President’s executive actions (proposed on January 5, 2016) suggest the following:
- If an auctioneer is “engaged in the business” of selling firearms, he or she (or that business entity) needs to licensed as a Federal Firearms License.
- The sole circumstance where an auctioneer selling guns would not be considered engaged in the business appears to be an occasional onsite auction where a single unique seller maintains control and possession of all the guns at that location from prior to the auctioneer’s involvement through delivery to the buyers (constituting the auctioneer assisting with private in-state sales.)
- This single-seller allowance (#2 above) could as well involve a single unique seller who is a Federal Firearms Licensee who owns all the guns being sold at auction.
- Auctioneers licensed as Federal Firearms Licensees must notify law enforcement about the theft or loss of guns.
- Any auctioneer deemed engaged in the business of selling firearms lacking a Federal Firearms License is subject to prison time and/or fines.
Here are our answers to the top five most common questions auctioneers seem to have:
- Q. Can I as an auctioneer without a Federal Firearms License take guns in on consignment and secure a Federal Firearms Licensee to handle all the necessary background checks?
- Q. Can I as an auctioneer without a Federal Firearms License have my seller bring the guns to my auction facility and stay with them until they are sold, with the seller handing them to the buyers?
- Q. Can I as an auctioneer without a Federal Firearms License have guns from more than one unique seller at the same auction?
- Q. Can I as an auctioneer without a Federal Firearms License repeatedly sell guns from the same seller?
- Q. Can I as an auctioneer without a Federal Firearms License have my seller (or sellers) execute a Power of Attorney thus portraying me as the owner of the guns for purposes of selling guns at auction?
And finally, here are my thoughts on some of the myths found regularly on social media and elsewhere:
- Q. Can states enact law which invalidates some or all of the federal laws regarding guns?
A. No. Per the Supremacy Clause of the Constitution, federal law is superior to state law, and that under Article III of the Constitution, the federal judiciary has the final power to interpret the Constitution. Therefore states cannot enact laws in conflict with federal law even by citing the federal statute as unconstitutional.
- Q. Can states enact law which says they will not enforce or not devote any resources to enforcing some or all of the federal laws regarding guns?
A. Probably. The anti-commandeering doctrine is thought to hold that the federal government cannot force states to help implement or enforce any federal act or program.
- Q. Can states enact more restrictive laws in addition to the federal laws which effect the sale of guns within their borders?
A. Yes; for instance states or other political subdivisions can require gun registration, licensing, permits, police registry, etc. However, the Supreme Court has held that no law in the United States can cause an undue burden on the Second Amendment’s right to keep and bear arms.
- Q. If a gun buyer buys a gun at auction where a background check is to be completed, but has a concealed carry permit (CDWL, CWP, CWL, CCP, CCL, LTC, LTFC, CCDW, CPL or the like) is a background check necessary?
A. Maybe. A Federal Firearms Licensee may or may not use the concealed carry status as an alternative to the background check requirements. Further, even if the concealed carry permit is used as an alternative to the background check requirements, an ATF Form 4473 is still utilized to record the transaction.
- Q. Is the government and/or the President coming to take my guns away, and/or is there a plan to confiscate all guns in the United States?
A. Unlikely. There is no evidence that anyone with the federal government is coming to take anyone’s guns (outside of current law) nor confiscate all guns in the United States. With over 300 million guns in the United States, such a task seems well beyond the federal government’s capability.
It may be prudent to say again that the penalties for “engaging” without a license include prison time and/or fines. On the other hand, a three-year Dealer (01) license is only $200 and then $90 to renew it every three years thereafter.
Here’s the link for the application which may substantially increase your odds of avoiding a fine, prison time or both: https://www.atf.gov/firearms/instructions-form-7-application-federal-firearms-license
Mike Brandly, Auctioneer, CAI, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, Keller Williams Auctions and Goodwill Columbus Car Auction. He serves as Distinguished Adjunct Faculty at Hondros College of Business, Executive Director of The Ohio Auction School and Faculty at the Certified Auctioneers Institute held at Indiana University.