Nearly a year ago, President Joe Biden issued an executive order aimed at "increasing the number of background checks conducted before firearm sales, moving the U.S. as close to universal background checks as possible without additional legislation." According to the watchdog group Empower Oversight, which cites two unnamed "whistleblowers" at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the agency is working on regulations that would go all the way, purporting to require background checks for all private gun sales. It is hard to see how the ATF can do that "without additional legislation."
Under current federal law, background checks are required only for sales by federally licensed dealers. A rule that the ATF proposed last September would expand the definition of "dealer" to encompass some but not all occasional gun sellers. But even that controversial proposal does not go as far as the plan described by Empower America's sources, who say "the ATF has drafted a 1,300-page document in support of a rule that would effectively ban private sales of firearms from one citizen to another by requiring background checks for every sale."
Federal law defines a gun dealer as someone who is "engaged in the business of selling firearms," which until 2022 was defined as "devot[ing] time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms." The 2022 Bipartisan Safer Communities Act (BSCA) excised "with the principal objective of livelihood and profit" and replaced it with "to predominantly earn a profit."
As the Congressional Research Service explains, that change was "intended to require persons who buy and resell firearms repetitively for profit to be licensed federally as gun dealers, even if they do not do so with 'the principal objective of livelihood.'" According to the amendment's supporters, "there was confusion" about whether the definition of dealers as people "engaged in the business of selling firearms" covered "individuals who bought and resold firearms repetitively for profit, but possibly not as the principal source of their livelihood." The statutory definition still explicitly excludes "a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms."
The proposed rule that the ATF published in the Federal Register on September 8 addresses what it means to be "'engaged in the business' as a dealer in firearms." Previous proposals considered by the Obama administration and pitched by Vice President Kamala Harris when she ran against Biden in the 2020 presidential primaries would have deemed someone a "dealer" if he sold more than a specified number of firearms in a year. But "rather than establishing a minimum threshold number of firearms purchased or sold," the ATF says, "this rule proposes to clarify that, absent reliable evidence to the contrary, a person will be presumed to be engaged in the business of dealing in firearms" if he meets any of several criteria.
Someone would be presumptively considered a dealer, for example, if he "sells or offers for sale firearms, and also represents to potential buyers or otherwise demonstrates a willingness and ability to purchase and sell additional firearms." Likewise if he "spends more money or its equivalent on purchases of firearms for the purpose of resale than the person's reported taxable gross [income] during the applicable period of time." Or if he "repetitively sells or offers for sale firearms" within 30 days after buying them, repetitively sells guns that are "new" or "like new" in the original packaging, or repetitively sells guns of "the same or similar kind" and "type."
Some of these categories, especially the last one, could conflict with the statutory exclusion of collectors and hobbyists. And the ATF adds that "the activities set forth in these rebuttable presumptions are not exhaustive of the conduct that may show that, or be considered in determining whether, a person is engaged in the business of dealing in firearms." It says "a person would not be presumed to be engaged in the business requiring a license as a dealer when the person transfers firearms only as bona fide gifts, or occasionally sells firearms only to obtain more valuable, desirable, or useful firearms for their personal collection or hobby, unless their conduct also demonstrates a predominant intent to earn a profit."
That "predominant intent to earn a profit" criterion, which is supposed to conform with the change made by the BSCA, potentially extends the definition of "dealer" to encompass the collectors and hobbyists that Congress explicitly sought to protect. In essence, says Independence Institute gun policy expert David Kopel, the ATF is "purporting to require anyone who sells a firearm for a profit, ever," to obtain a dealer's license.
The plan that Empower Oversight describes would go even further. If it would in fact cover "every sale," it would not matter whether the seller made money, let alone whether that was his "predominant intent." That "seems like something that is legally impossible," Kopel says.
It seems legally impossible because the only way to expand the federal background check requirement "without additional legislation" is by treating more sellers as dealers and requiring them to obtain licenses. The ATF claims the BSCA gave it the authority to do that. But that law plainly did not give it the authority to simply decree that anyone who buys a gun has to pass a background check.
States that notionally mandate "universal background checks" do so through laws that require private sellers to complete transactions via federally licensed dealers. Research suggests those requirements are widely flouted by gun owners who either are unaware of the law or object to the cost and inconvenience that compliance entails. In any event, this option is not available to the ATF "without additional legislation."
Empower Oversight's description of the ATF's reported plan only adds to the puzzle. It refers to "a 1,300-page document in support of a rule that would effectively ban private sales of firearms from one citizen to another by requiring background checks for every sale." The ATF's entire rule elucidating its proposed definition of "engaged in the business," including the agency's legal rationale, is just 31 pages. What could the ATF possibly have to say on this subject that would take 1,300 pages, and how could a document of any length get around the statutory exemption for collectors and hobbyists? If the ATF is planning to "effectively ban private sales," that could be accomplished only by requiring those collectors and hobbyists to be licensed as dealers, which flagrantly contradicts the treatment mandated by Congress.
Empower Oversight says "the document's drafting is reportedly being overseen" by ATF Senior Policy Counsel Eric Epstein. On Wednesday, the group's president, Tristan Leavitt, sent Attorney General Merrick Garland and ATF Director Steven Dettelbach a Freedom of Information Act request for relevant records, including emails to or from Epstein; communications among the ATF, the Justice Department, and the White House regarding Biden's executive order; and communications about "regulating or banning the sale of firearms between private individuals."
In his letter to Garland and Dettelbach, Leavitt notes the statutory and constitutional issues such a plan would raise. "Such an expansive rule that treats all private citizens the same as federal firearms licensees would circumvent the separation of powers in the Constitution, which grants 'all legislative Powers' to Congress while requiring that the President 'take Care that the Laws be faithfully executed,'" he says. "To the extent such a rule prevents the private sale of firearms, it would also clearly violate the Second Amendment to the United States Constitution, which declares that 'the right of the people to keep and bear Arms, shall not be infringed.'"
Biden has not been shy about trying to rewrite the law in pursuit of his gun control agenda, as illustrated by ATF rules dealing with pistol braces and "ghost guns," which take a page from the Trump administration's unilateral ban on bump stocks. But treating all gun sellers "the same as federal firearms licensees" would not only require an implausible reading of a supposedly ambiguous statute. It would fly in the face of clearly expressed congressional intent.
"Like Biden's student debt bailout plan, such a sweeping rule seems almost certain to be struck down in the courts," Leavitt says on X (formerly Twitter). "It's thus hard to view it as anything other than a cynical [play] to energize his base in a presidential election year."
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