As the Biden administration moves one step closer towards its goal of so-called “universal” background checks without Congress enacting an actual law, more than half of state attorneys general are pushing back.
Three different lawsuits have been filed—joined by attorneys general in 26 states—challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) Final Rule redefining who is “engaged in the business” of selling firearms.
Kansas Attorney General Kris Kobach (R) is leading one such effort challenging the Final Rule as unconstitutional under the Second Amendment, the Administrative Procedures Act, the Separation of Powers, and for being too vague.
“The new definition is so broad that millions of Americans will be swept in without knowing it,” Kobach wrote in an op-ed. “Law-abiding citizens who fail to get a federal firearms dealer license and conduct a background check when they sell or transfer a firearm for a ‘profit’ (no matter how small) could face felony charges under the new regulation.”
Previously, an individual only needed a federal license to sell firearms when engaged in “a course of trade or business” involving “repetitive” buying and reselling of firearms with the “principal objective” of “livelihood and profit.” The Bipartisan Safer Communities Act (BSCA) removed the “livelihood” element so that profit-seeking alone would fulfill the required objective of the sales.
In the op-ed, Kobach cited four possible scenarios where failure to first acquire an FFL could land someone in jail: An old friend dies and his widow sells his shotgun; you buy a handgun that doesn’t fit you well and sell it to a friend; you and a hunting buddy decide to trade shotguns since you both like the other guys’ better; or you have an agreement with your spouse to not buy another gun until you sell one you already own.
“If anyone thinks the ATF will look the other way when learning of these examples of gun transfers, think again,” wrote Kobach. “The ATF has a long history of draconian behavior where law-abiding gun owners are concerned, especially since Mr. Biden has taken office. The ATF is the last agency that should be trusted to be reasonable.”
Another lawsuit, filed by Texas Attorney General Ken Paxton (R) and joined by attorneys general in Mississippi, Louisiana, and Utah, also challenges the Final Rule, which was created by a government agency charged with enforcing the law, not making it. It restates many of the arguments from the first suit, but adds a challenge to the rule under Fourth Amendment grounds.
That lawsuit states: “Since 1938, when Congress first began regulating firearms ‘dealers,’ federal statutes have always recognized the legality of private, unregulated sales by non-dealers. And in 1986, Congress narrowed the definition of ‘dealer’ specifically to make it harder for ATF to pursue private sellers of firearms. But now, with the stroke of the regulatory pen, ATF is flouting this decades-long Congressional direction, seeking to declare countless thousands of Americans unlawfully ‘engaged in the business,’ and thereby attempting to implement the very regime that Congress has expressly sought to avoid.”
Paxton said this latest rulemaking is just another of a long list of Biden administration attacks on gun owners and the Second Amendment.
“Yet again, Joe Biden is weaponizing the federal bureaucracy to rip up the Constitution and destroy our citizens’ Second Amendment rights,” Paxton said in a press release. “This is a dramatic escalation of his tyrannical abuse of authority. With today’s lawsuit, it is my great honor to defend our Constitutionally-protected freedoms from the out-of-control federal government.”
Utah Attorney General Sean Reyes (R), who is a party to the Paxton lawsuit, had equally strong words for Biden’s ATF: “Nearly 40 years ago, Congress condemned ATF for targeting innocent gun owners instead of focusing on felons, calling ATF's actions 'reprehensible,’” Reyes said. “Congress even changed the law to limit ATF's authority. But ATF is at it again, this time trying to require a citizen selling even a single firearm to obtain a license. Utah is proud to join the 26 states—in three separate lawsuits—protecting their citizens from this bureaucratic overreach.”
The third suit, filed by Florida Attorney General Ashley Moody (R), challenges the rule for several violations of the Administrative Procedures Act.
In addition to the lawsuits, there is also a push for federal legislation to disallow the regulation; however, with the current makeup of Congress, it’s not likely such legislation would pass, and even if it did, it would face a certain veto.
As the NRA Institute for Legislative action (ILA) recently pointed out in an analysis of the Final Rule, the Department of Justice (DOJ) isn’t likely to back down from the regulation just because of a handful of lawsuits.
“Like the Biden administration’s other illegal anti-gun rules, this one is destined for a long march through the federal courts, a campaign that inherently favors the government, which can and will expend any amount of resources to try to vindicate its dubious interpretations of the law,” wrote the NRA-ILA.
Another Final Rule by the DOJ, which came on the heels of the “engaged in the business” rule, further infringes on law-abiding gun owners under the auspices of the BSCA. Among other things, this Final Rule would expand the prohibitor for so-called “misdemeanor crimes of domestic violence,” create new crimes for straw purchases of firearms, provide for “enhanced” background checks for adult firearm purchasers under age 21 and dole out grants for state “red-flag” laws.
The abbreviated comment period for that Final Rule ends on May 20. Comments may be submitted electronically via the Federal eRulemaking portal. Please refer to this NRA-ILA article for some guidelines on submitting comments on this particular rule, and watch for any updates on this process.
