LITTLE ROCK, Ark. – Months after the first case shocked the Natural State, the search warrant and eventual death of Little Rock pilot Bryan Malinowski still leaves many asking questions: what led to ATF agents first at Malinowski’s door? And what does it take to cross the line between hobby and crime?
Answering those questions requires a serious look at the law; and an understanding of what it takes for gun dealers to make a living.
For a Central Arkansas gun shop and local Arkansas Armory, every gun sale starts the same way; the customer comes and talks to an employee like the owner of Nathan House, who helps them choose exactly what they want. Then, when something is decided and it’s time to sell, the process begins.
“We have them fill out an ATF Form 4473, and that’s just a record of the sale of the firearm,” House explained.
It’s standard practice for anyone with a federal firearms license, or FFL; series of checks and documents that keep them in business.
“[Then] we are contacting the FBI NICS system, and NICS stands for National Instant Check system,” House continued. From start to finish, “[It] usually it takes about 10, 15 minutes.”
House says that background checks rarely come back with a hold, and often it’s a bounce. But the system is there to prevent those who shouldn’t own a gun from getting one; and it is required even if House sells outside the walls of his shop.
“The process is the same for a Federally Licensed Firearm dealer,” he said. operation there.”
As a licensed firearms dealer, it is clear what is expected of House and his team.
But what is not so clear are the rules that state exactly who needs a Federal Firearms License; and the one accused of not having it.
It is a question that was noticed by the country in the last few months: what is the line between the independent seller and the seller? And how many guns does a person have to sell in order to “get into the business” of selling guns?
This was highlighted this year in Washington DC by a congressional hearing on federal weapons that saw lawmakers asking the same question. Yes that The case was partially inspired by a case from Little Rock where an airport manager was killed during a search warrant operation by ATF agents on the morning of March 19.
In the published search warrant and affidavit, Bryan Malinowski was a suspected unlicensed gun dealer; accused of buying guns and reselling them without needing documents. The documents list him as having purchased more than 150 guns between May 2021 and February 27th, 2024, which he resold; some as soon as 24 hours.
But his lawyer says Malinowski was an avid gun collector with an extensive collection; weekend hobby he didn’t know he was crossing a blurred line.
But how dark is it? The only way to tell is to look at the law.
According to the US Code, anyone “engaged in the business” of dealing in firearms must be licensed to do so and, therefore, run background checks on every sale. one is for sale; literally, a person who sells for the purpose of obtaining “life and profit”.
But it is that language that has led to the so-called “shoot show loophole”: a potential blind spot in the law that leaves other ambiguous areas uncovered under the definition.
Robert Steinbuch, Professor of Law at Bowen Law School explained: “The so-called gun show loophole is actually whether people transferring guns to other people should be vetted before they transfer that gun. .
Under this definition of “engaged in business”, they do not need to be. Private sellers who do not operate a business but still want to make a sale can do so without needing documents; and in some rare cases, that hole is used to deal guns to those who shouldn’t have them.
It was this ambiguity that pushed the Biden administration to propose a legislative amendment. In April, they amended the Gun Control Act using the Bipartisan Safer Communities Act to expand the definition of “entering into a business”; and with that, who, exactly, qualifies for a license and must pass a background check. The new language takes “subsistence” out of the definition and replaces it with dealing “primarily for profit”. So, in the new language, it can be argued that it is no longer just those who run the business, but now anyone who sells guns to make money. The law even makes it clear that those who advertise their sale or rent a table at a gun show fall under the definition; leaving concerned gun advocates asking – are legal, unlicensed private sales a thing of the past?
Not exactly.
The law is changing it does include written exceptions for “those who occasionally sell, exchange, or buy” for or from their collections and hobbies; although “every time” is not clearly defined, it is open to interpretation. In the final rule, it is also explained that finding a set number of sales necessary to “trigger” the need for a license is not unreasonable as in some cases, even a single sale of firearms can be considered ” working in business”.
“Where you frame it, it’s a real question, and a difficult one at that,” Steinbuch said.
So what does this mean for gun owners?
Bottom line: even though the intent of the law change was to require that almost all sales come with a background check, the odd business of removing something from your collection will not. you install federal radar. Under the new law, wholesalers will need to obtain a license, but private sales are still possible; although the judge ultimately decides what turns an “occasional” number of deals into something else.
The last amendment to the law was signed by the Attorney General on April 10th, 2024, but the order was entered a few days later; to suspend, for the time being, the enforcement and enforcement of the law.
You can read the final rule HERE.
More information from the ATF about who will be required to be licensed can be found HERE.
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