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53 Year old Brian Malinowski was killed in an ATF raid. He was a director at the Clinton National Airport in Little Rock. (This airport was named for the Clintons but is unconnected to them personally so we can put our tinfoil hats away for now.) We have no body camera footage of the shooting, they claimed he fired at them and they fired back during their 6am raid.
The search warrant, partially redacted, was released to the public. In it we find they raided him due to his frequent activity of buying and selling firearms without the required FFL licence.
Selling your private gun collection without involving the state is something that has been legal in the US forever, but buying and selling as a business is not. The law is written such that Grandma may sell her deceased husbands musket collection without fear of state reprisal, but you cannot buy bulk AR's and distribute them to the local gang for a big profit. What counts as a business? How many guns can you sell from your collection before you cross the threshold? How fast can you turn around and sell a gun after you buy without fear of breaking the law? This law is ambiguous on this, it is what politicians have referred to as "The gun show loophole". The idea being that you can take your personal firearms and sell them at a gunshow booth (or anywhere) without having to do a background check on potential buyers.
Brian Malinowski is a novel case. He bought and sold 150 guns over a two year period, some of them sold fairly quickly after he purchased them. This was high enough to get him on the ATF's watch list - they tailed his vehicle and observed him at his job at the airport. His job seems unconnected to his firearm hobby as the warrant never accuses him of smuggling through the airport. It heavily implies this is what was happening, mentioning the airport frequently throughout the warrant, but they never suggest that he actually did. It does, however, mention his selling his collection through booths at a gun show to undercover ATF agents.
So what of downstream crimes that have occurred from Malinowski selling these firearms "off the books"? Here the ATF's case seems very weak. Out of the 150 guns sold, only 3 have been directly tied to crimes stated in the warrant. The crimes? All three are marijuana possession during routine traffic stops (marijuana still being very illegal and heavily policed in Arkansas). Personally I think this is extremely petty and very favorable to the late Malinowski's case. There is one other mention of an undercover informant in Canada having a photo of a firearm with a serial number that ties back to Malinowski, with no additional details given.
In my opinion, I believe Malinowski was technically legally in the right despite the high volume of sales. There is no indication he was attempting to profit from selling to criminals/gangs etc. Many people collect firearms and enjoy buying and selling them as others would spend hundreds of thousands of dollars on motorcycles or pokemon cards. There is no law in Arkansas against purchasing a handgun and deciding you don't like it for whatever reason and selling it to your neighbor the next day. That said, Malinowski is reported to have been somewhat of an asshole by those who knew him, having previously lost a lawsuit in 2018 in which he sued someone over a mailbox in front of an empty lot after confronting them pretending to be an attorney. Given this and that he was on record stating that his activity was legally protected private collection sales when pressed, and the ATF suggests he continued his activity after he knew they were tailing him, I think it's highly probable he knew what he was doing and was intentionally skirting the boundary of the law in order to provoke a legal confrontation.
This is a good culture war inflection point in the gun control debate. Leftists can point this case as an example that the Gun Show Loophole is in fact, real, and is being exploited by so-called hobbyists selling bulk firearms. Rightist can point to rogue federal agencies abusing ambiguous laws in order to infringe 2A rights by routing around political representation.
*Disclaimer: IANAL etc.
One thing I always like to point out: almanac.
Legally in the right is kinda unrelated to those questions; the federal law isn't about selling to Bad People, but selling as a business or buying on 'behalf' of another person. See Abramski v. United States for a case where buying one gun for resale to another person (his uncle) who could legally buy or own the firearm had he bought the gun himself, and received five years of probation (technically, two such sentences running concurrently).
(The affidavit claims one of the guns was found in possession of a Norteno gang member, but search affidavits claim bullshit regularly, and it's not clear how many steps happened between Malinowski's sale and that point, since the Nortenos are mostly a California thing.)
Under current law, there's almost no chance that he'd have been able to avoid a lengthy federal sentence. There's not a statute written down saying you can't buy and resell in a day or a week as a private individual, but the law is whatever the ATF wants it to be, until and unless a court slaps them down. The line between private sales from a personal collection and acting as a business is vague and basically defined only in whatever sense the ATF wants it to mean, but there's been far more marginal cases convicted.
He might have been trying to start a legal confrontation, but I'm... somewhat skeptical for aviation reasons -- very few people who deal with the FAA regularly would start shit by going straight to 11, and those who do would have had a lawyer on retainer, heavily tied into paperwork somewhere, and ready to give a statement. As an alternative explanation, there was (and remains to a smaller extent) a lot of non-coastal people who use firearms as a store of value, and quite a lot of them aren't familiar with the law or the extent that it's been tightened recently.
Morally... more complicated. Whatever the original status of the GCA1968, the ATF and federal government have since joined together to make the FFL system as unavailable as possible to small businesses or hobbyist resellers, starting with the Clinton-era crackdown on kitchen-table FFLs (with a few exceptions). Abramski would have struggled to operate as an FFL had he wanted to, and the harassment aimed at small FFLs makes the moral arguments rough.
I'd be in favor of changing the law, the question, though, is whether the pro gun people would actually go for it. Say you limited private sales to 3 per year or 5 in any two-year period and required that the seller fill out a Firearm Bill of Sale and keep that and a copy of the buyer's photo ID on file for 5 years so that in the event the weapon was used in a crime they'd be able to demonstrate that it was sold? Or maybe do what Pennsylvania does and require FFL transfers for handguns (but not long guns). Or also require them for long guns with removable magazines. I think part of the reason why the law remains vague is that gun control is such a toxic issue right now that any change of the law is difficult to accomplish. For the gun rights people any clarification short of a total repeal of the FFL requirement is going to be seen as an unreasonable imposition, and for the gun control people anything short of eliminating private sales entirely is going to be seen as a useless half-measure. So there's no political will to do this.
That being said, I don't think the law is as ambiguous as you're making it out to be. In Abramski, there was no question that the defendant purchased the gun for immediate resale, and the evidence in the case didn't even support a defense that Abramski purchased the gun for himself and later decided to sell it. I also don't think Abramski really applies here in any context because the defendant transferred the gun to Alvarez through an FFL; at no point was he invoking the private sale exception. While I don't like the ambiguity myself, I don't know that the Malinowski case is really the best argument for the idea that the ambiguity needs correcting. I don't know the exact evidence, but I'd find it hard to believe that Mr. Malinowski wasn't acquiring these guns specifically for the purpose of reselling them. I mean, it's possible that he happened to inherit a bunch of guns all at once and wanted to get rid of them, or that he was constantly buying guns to try them out and getting rid of ones he didn't like, but absent specific evidence of that, it's safe to assume that someone who sells 150 guns over the course of a couple years is doing so for pecuniary gain.
People who do this sell them back to the dealer. He was obviously doing it for gain.
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I don't think his particular case is ambiguous: I agree that Malinowski was likely violating the law ("almost no chance that he'd have been able to avoid a lengthy federal sentence"). My moral problem is more a question of what compliance would look like.
(Abramski is more complicated: it's unquestioned that he was reselling the gun, but the law about buying and selling doesn't ban resale, only "engaging in the business", which he wasn't doing. Hence why he got hit with paperwork violations that aren't even parts of paperwork listed in the statute, but rather ATF regs.)
The exact requirements for a private FFL is a mess, but there's a lot of ways it can be ludicrously impractical. Becoming an FFL means the ATF can inspect your entire listed address with little or no notice at least once a year. While less often an issue in Little Rock than other jurisdictions, FFLs must comply with all local business regs just to receive a license; this can require massive investments or even where it doesn't just turn into a catch-22 or punitive FFL-specific fees. Moving is annoying and in recent years leaves you pretty much at the whims of the ATF's schedule. Some IOTs or jurisdictions can require enough additional security as to make casual sellers cost-negative. Gotta keep (and show you can keep) form 4473s for twenty years, every i dotted and t crossed. Even the sort of zoning stuff no one actually enforces has to be met and understood and complied with. Apartment or rental FFLs have to show that they'll be in compliance with all the boilerplate contract crap meant to keep people from running a leather tannery in basement.
Most critically, the ATF requires FFLs be engaged not just in resale, but in business. If you can't present a decent business plan during the interview, the ATF won't issue an FFL; if you're not making a decent number of sales, the ATF can pull an FFL. There's limited alternative sales (mostly consulting), but if you go with them you've got other problems. Officially, you only have to list two hours a week as your 'open hours' for inspection and business, but outside of FFL 03s (C&Rs), you're likely to get your IOT to tell you to try again until you've got at least one 'open' day (usually 5+ hours). That's likely wildly impractical for an airport manager, who must also be available at no notice to handle everything from a major air disaster to an fuel spill to a burst water pipe to a busted runway light.
((This isn't helped by overt abuse of FFLs by the ATF: there are some limited statutory protections about having too many inspections in too short a time period, searching material unrelated to the business, or taking pictures of FFL records during inspections absent evidence of wrongdoing, but these solely exist on paper. There's literally no recourse if the ATF flips the law the bird.))
That's the point; the whole set of regulations and harassment exists to discourage small or marginal FFLs, or people becoming an FFL for personal use (which is itself a felony!). That's the state of regulations right now, and there's no wiggle room from a view of the courts.
But from a moral one... I don't advocate noncompliance with such unreasonable laws. I'm hard-pressed to see it as morally wrong, though, rather than just a horribly bad idea.
For gun rights people, there's a lot for whom the FFL system is, in many ways, the room temperature -- at most, you get some problems at extremes, but even among gunnies, there's just not the interest for its core. The problem's more that any of the even remotely plausible compromises look a lot like just one more bite at the cake.
I'm not sure if it's intentional, but I'd point that your particular proposal is all take and no give. Every private firearm sale must now have a paperwork and ID requirement, or involve an FFL, and a fairly low limit to private sales is now in place, and... what, we're supposed to be happy that we're 'absolutely sure' that four guns in two years wouldn't be against the law, at least until the feds change it again?
Add in that there's a wide gap between such minimal sales and the scope required for it to make business sense to jump through all the hoops for an FFL. For a fermi estimate, if we assume 300 USD profit per gun and 150 guns, Malinowski would have made less than 15k USD/year.
I think I misunderstood you then; your concern isn't about ambiguity, because there is no ambiguity. It's illegal to buy guns with the purpose of transferring them to someone else without an FFL. The private sale exception only applies to guns that were legitimately bought for personal use inherited, gifted, etc. And you can't get an FFL unless you're actually running a full-time business that involves selling guns. There are a number of requirements that seem onerous but that's the point; if you're running a gun store the stuff you described isn't onerous at all. The fact that a part-timer can't get an FFL isn't an ambiguity but a specific policy prescription. The government doesn't want amateurs and hobbyists dabbling in highly regulated industries. Given that something like 70% of guns used in crimes are from straw purchases and another 10% or so are from direct sales, there's good reason to ensure that people in the business of selling guns are actually in the business of selling guns.
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