Home FFL & 4th Amendment
The best way to get started as a FFL license is a home FFL. It is a common delusion that being a home-based FFL holder automatically implies that the ATF has the unlimited authority to be prying around your home. This is nothing else but false.
Fourth Amendment in a nutshell
There is much to complain about when it comes down to the U.S. federal government, but it also is forced to abide to certain constitutional limitations. Everybody knows that the Second Amendment emphasizes the right to keep and bear arms. Another constitutionally guarded right is the individual’s Fourth Amendment right that refers to the right of being safe against illogical inspections and confiscation.
The Fourth Amendment was approved along with the rest of the Bill of Rights back in 1791. It was part of the Anti-Federalist struggle to attentively limit the authority of the newly established federal government by clearly listing certain specific, fundamental rights and the nature of the connection between the federal government, state governments, and the American people. The Anti-Federalists were hoping that the Bill of Rights would prohibit the federal government from striping Americans of the liberty they’d just won in the war for American independence. Fresh in their consciousness were the memories regarding the obligatory accommodation of British troops in American homes and the random searches by British soldiers and profit agents attempting to instate different disparaging laws that served as a motivation for the revolutionaries. It is no surprise that they wanted to make sure a homegrown version of the same sort of oppression would be prevented as much as possible..
The Fourth Amendment states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” It means that any involuntary inspections and confiscation by government agents must rely on probable cause. The much-hated Writs of Assistance used by the British to enable the offensive intrusions of colonial homes were clearly prohibited with this constitutional requirement that warrants be specific to specific places, individuals, and objects.
In todays America, the usual antidote for a person who is the subject of a senseless search and seizure in the course of a criminal investigation is elimination of evidence that is demonstrated as a result of that search or seizure. This is a great comfort for the individuals who are innocent, since they have no evidence to eliminate anyway. But law enforcement agencies are not generally predisposed to spending resources on activities that cannot support a prosecution at a later time. This antidote however, does seem to provide some restraint against improper warrantless inspections and confiscations.
Actual inspection requirement for Home FFLs
It is true that your licensed location, including storage locations, must be open to conformity inspections during your regular working hours. The ATF explains this in great detail in their regulations as the “right of entry and examination.” The inspector does not have to consider that a contravention has taken place in order to conduct a premises inspection.
During an inspection, the ATF can ask to review the records and documents that you are solicited to have as an FFL holder, and they are allowed to inspect your firearms inventory and the entire licensed premises. However, unlike telephone solicitations for information from your records and archive that must be answered within twenty-four hours, premises inspections, if they take place, won’t happen more often than once annually (27 C.F.R. § 478.23(b)(2)(i)) The only exception to this rule is if there is a criminal investigation relating to a firearm that has been traced to your FFL going on. Only about one in five FFLs has been inspected by the ATF in 2015.
But they’re in my home already!
As the FFLTRUST’s guide clearly explains, you can narrowly define your licensed premises and regular operating hours to limit the effect and purpose of these inspections. If you bear this in mind while completing your application paperwork and provide acceptable working hours of operation and obvious defined premises that only involve that part of your residence where you will actually engage in FFL related activities, the ATF will not fondle with checking out your bedroom unless, as priory mentioned, you are the subject of an on going criminal investigation. Even in these cases, the inspection must be based on a warrant issued by a federal magistrate (27 C.F.R. § 478.23(a)) this procedure being basically similar to the one taking place in case a home belonging to someone who is not an FFL at all, is being searched for evidence.
ATF inspectors who are concerned in civil matters carry out warrantless conformity checks, namely, your deference with the recordkeeping and storage solicited by federal laws for FFLs. It is of course a possibility for you to grant an inspector your concession to approach other parts of your home, just like it is possible for you to allow a warrantless police officer to search your home. Still it would be a Fourth Amendment breech without your distinct agreement. By becoming a home-based FFl owner you are not permitting that sort of access by default. In rare cases where an inspector might try to overstep the purpose of his authority, you entitled by your constitutional right to politely refuse to grant your consent.
By opening your new firearms business at home is a advantageous, affordable way to get the many advantages of being a FFL holder. There are many requirements that you should get familiar with even if they are federal statutory and regulatory requirements regarding licensees. But you don’t have the obligation of giving up your home to the ATF in order to become a home FFL.