The penalties for being engaged in the business of selling guns without a license are clear: Offenders can be sentenced to up to five years in prison, fined up to $250,000, or both, according to U.S. Department of Justice guidelines. Less clear has been what puts someone in violation of the law. The Federal Gun Control Act (GCA) says hobbyists can sell occasionally from their personal collections, but prohibits unlicensed selling for the sake of profit — without setting hard benchmarks, such as a numerical threshold of guns sold, to indicate when a seller becomes “engaged in the business.” Left to reach their own interpretations, judges and juries have come to conclusions that are all over the map.
Prosecutors are leery of vagaries, which on this issue have left them less likely to pursue unlawful gun dealers than they are to pursue other crimes. And in the absence of a clear standard, offenders can sell any number of firearms and still claim to be a hobbyist, rather than a retailer, in mounting a defense. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) told The Trace in October of last year that as of that month, it had only prosecuted 57 cases in 2015 for illegal engagement in the gun business. When few cases are pursued, and even fewer succeed, a law doesn’t have the chance to have much bite.
A centerpiece of President Obama’s new executive actions on gun safety is an effort to more clearly define who’s engaged in the business of gun selling, and therefore must register as a licensed dealer or face criminal prosecution. The calculus is that clearer rules, widely communicated, will raise the risks of being engaged in the business without a license — and nudge more sellers into the background check system — while also increasing the odds that cases will be brought, and won, against scofflaws.
It will take time to learn whether either of those things actually happen. But to understand why the administration and gun reform advocates thought the tweak was necessary, it’s helpful to look at two cases brought in 2013. Both involved unlicensed dealers who sold guns to felons. But they arrived at very different outcomes.
David “Big Dave” Lewisbey was a former high school football player from the south suburbs of Chicago who attended several Illinois colleges from 2008 to 2012. During that time, prosecutors claimed, he routinely traveled to Indiana gun shows and bought duffel bags full of guns, which he then brought back to Chicago and sold on the street. From just one weekend trip in 2010, prosecutors alleged that Lewisbey and his accomplice netted over $38,000. Lewisbey, then 22, was finally caught in December 2012, after months of selling to gang-connected buyers who were acting as ATF informants.
Lewisbey made so much cash from the gun sales that he had to bury some of it in his backyard. Yet he insisted that his gun business wasn’t a business at all. Rather, he maintained that he was a hobbyist. His lawyers claimed he bought guns in Indiana to add to his collection, from which he sold the occasional firearm — hardly enough to require him to get a license from the ATF and conduct background checks on his buyers.
On his trips to Indiana, Lewisbey acquired his inventory from other unlicensed sellers who set up tables at gun shows offering firearms they had purchased over the Internet or at flea markets. The court transcript quotes a witness who testified that after Lewisbey had gone table to table, buying three to four handguns from every unlicensed dealer, he would collect his wares in a duffel bag and head back to Chicago:
He would buy guns from me and other vendors, and we’d put them under the table for him just so he didn’t have to carry a bunch of them around. And then he would go and get a — buy a bag or get a bag and bring it around and we’d put the guns in for him.
Back in the city, a gun Lewisbey bought for $400 at an Indiana gun show might sell for $600 to a go-between, who would then sell it on the street for $700. Those economics were driven by the fact that firearms, while abundant in Indiana, were made more scarce (and therefore more valuable on the black market) in the city of Chicago, which has restrictive gun laws.
It didn’t take long for the guns Lewisbey bought in Indiana to turn up at Chicago crime scenes. One of the guns he purchased in 2012 was used in a double shooting, and prosecutors identified at least eight guns recovered from city gang members that had come from one of Lewisbey’s chief sources in Indiana. But because he rarely left a paper trail and the ATF had no records of the purchases, investigators could only prove that two of those guns were shepherded across state lines by Lewisbey himself.
Pressed by prosecutors during his trial, Lewisbey admitted that he had a pretty good idea that his guns would be used to commit crimes. This knowledge did not deter him. On the stand, a prosecutor asked Lewisbey if he cared what buyers did with the guns he sold. Lewisbey replied, “I mean, no.”
Lewisbey’s gun selling was so extensive that jurors did not buy his claims. He was found guilty of selling guns without a license, as well as trafficking firearms across state lines and selling guns to convicted felons. He’s currently serving a 200-month sentence. But around the same time, a defendant in a different case fared better with his argument of not being in the gun-selling business, despite selling plenty of guns.
In March 2012, Chris Bradley of Blanchester, Ohio, was charged with being an unlicensed seller after selling 16 firearms to a felon who was acting as an ATF informant. Like Lewisbey, Bradley purchased his firearms at gun shows, then sold them to the informant, who in turn supplied his “dope boys” with guns. The prosecution alleged that Bradley sold as many as 25 guns in just one month, and that those transactions netted Bradley as much as $7,000.
Like Lewisbey, Bradley claimed that he was a hobbyist, not a gun retailer, and therefore wasn’t required to conduct background checks on his buyers. Bradley’s lawyer argued that the law doesn’t clearly differentiate between those “engaged in the business” and purported hobbyists like his client.
There is no specific number of guns that means you’re in the business. There is no specific period of time or frequency with which you have to sell guns or frequency — I’m not saying this very well … It’s a much more complicated definition than that.
Bradley’s lawyer reminded the jury that they could not convict him of selling guns without a license unless they believed, beyond a reasonable doubt, that he was “engaged in the business.” Absent a clear standard, such certainty has sometimes been elusive. This might explain why, even though the facts in Bradley’s trial looked similar to those in Lewisbey’s case, the results were different. The jury found Bradley guilty of selling firearms to a felon, but voted not to convict him of selling guns without a license. Were it not for the former charge — had Bradley merely been profiting from his gun sales in defiance of the law — he might have gotten off completely.