NRA-ILA | With a Stroke of the Pen, Biden ATF Criminalizes Tens of Thousands of Private Firearm Sellers

We have long been warning of the rule the Biden ATF has been preparing to redefine who is considered a firearm “dealer” under U.S. law.  The administration’s explicit objective was to move as close to so-called “universal background checks” for firearm sales as possible. Aiding in this effort was 2022’s lamentable (and misnamed) Bipartisan Safer Communities Act (BSCA), which made a subtle change to the underlying standards for when a person is “engaged in the business” of dealing in firearms and therefore required to be federally licensed. Licensees, in turn, must run background checks when making sales to unlicensed buyers. The BSCA’s removal of a single word from a federal statute has now resulted in a 466-page monstrosity of a rule that redefines what it means to be a firearm “dealer” and threatens to turn untold thousands of upstanding citizens into criminals for exercising their constitutional rights.

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 BSCA removed the “livelihood” element so that profit-seeking alone would fulfill the required objective of the sales.

Certain supporters of the BSCA claimed this change was merely a codification of how courts had applied the previously existing law. They wanted to make clear, so they said, that a person could be subject to licensure even if the person had means of support other than selling guns. But the NRA, in opposing the BSCA, warned that it “leaves too much discretion in the hands of government officials and also contains undefined and overbroad provisions – inviting interference with our constitutional freedoms.” In other words, there was no telling what sort of spin the most anti-gun administration in American history would try to put on changes to statutory language that had existed for decades and for which there were well-established histories of case law and enforcement policy.

The ATF’s sprawling background check rule is the most glaring and sinister example of the havoc the BSCA has unleased. In typical fashion, the anti-gun Biden Administration has treated the law as a mandate to pursue the firearm prohibition movement’s longstanding aspiration to ban private gun sales. Channeling sales through the network of federally licensed dealers ensures that there is a paper trail of privately-owned guns. Proponents of this policy claim it will promote public safety by allowing police to trace the origins of guns recovered from crime scenes.  But the government’s own data shows that violent criminals either avoid the background check requirement, through measures such as theft or black-market sales, or they use “straw buyers” to purchase guns from dealers on their behalf. Forcing law-abiding gun owners to go through a dealer to sell a gun to a trusted neighbor or co-worker won’t change this, but it will put more lawfully owned guns “on paper,” a prerequisite to any future scheme of large-scale registration and confiscation, whenever guns are retroactively banned.

As for the rule itself, its main feature is a series of “rebuttable presumptions” about when a firearm seller is either “engaged in the business” of dealing in firearms or has the objective to “predominantly earn a profit.” These presumptions are meant to guide the “fact-specific” inquiry into when a person’s gun sales cross the threshold that require that person to be federally licensed. We commented on those presumptions in previous articles, and they remain essentially unchanged in the final rule.

Yet demonstrating the ATF’s skepticism of its own legal interpretations, these presumptions are explicitly meant to apply only in “civil or administrative proceedings,” even though the underlying statutes may also be criminally enforced. Such proceedings include applications for, or renewals of, firearm licenses or civil forfeiture actions by the government seeking to confiscate firearms, ammunition, and profits from gun sales.

Courts subject administrative rules to more stringent scrutiny when they are used in criminal cases, which is undoubtedly why ATF claims its presumptions are only meant for civil enforcement. ATF knows that none of the presumptions appear in or are authorized by the language of the underlying statutes themselves. To the extent they are tied to any legal authority at all, ATF claims they are derived from case law applying the pre-BSCA standard for dealer licensing. But that standard no longer exists, so it’s not clear why a court should give any deference to those cases as applied to the new BSCA standard. But ATF still hedges its bets, suggesting that its new criteria “may be useful to a court in a criminal proceeding – for example, to inform appropriate jury instructions regarding permissible inferences.”

This supposed distinction between civil and criminal proceedings, however, goes to the heart of the rule’s overall game plan. Normally, administrative rules are meant to give more specificity and detail to broad statutory regimes so regulated entities have a clearer understanding of the obligations under the law. In this case, however, the ATF merely wants to create more confusion and uncertainty. They know the rule is irrelevant to the behavior of real criminals, and they even admit their new standards cannot be strictly applied in criminal cases. But the rule may create enough doubt in the mind of conscientious, law-abiding gun owners that they simply avoid engaging in or facilitating private transfers altogether. It is, in other words, regulation by intimidation.

There is already a push for proposed federal legislation to disallow the rule; however, the current makeup of Congress makes its passage extremely difficult. 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. Indeed, from the administration’s point of view, litigating the rule at taxpayer’s expense merely allows it to extend the political capital of the campaign with its anti-gun supporters by demonstrating the administration’s aggressiveness and commitment to gun control.

NRA-ILA will keep you apprised of all legislative and legal challenges to this egregious rule as they develop. Please stay tuned.