When an administration spends a month touting an upcoming executive order written to impact a civil right that’s specifically protected by the U.S. Bill of Rights, but then, with no big fanfare, quietly has the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) post legalese to the Federal Register for a 90-day comment period (which, in this case, ends Dec. 7), it is time to look at the details.
This newly proposed rule from the ATF goes well beyond its statutory authority to fabricate “presumptions” of when an individual needs be a federal firearm licensee (FFL). These presumptions include common, lawful behavior like renting a table at a collector show or swap meet. The government even acknowledges the unlawfulness of the proposed rule by claiming that the presumptions will not be used in criminal cases.
The Biden administration, with this rule, wants to force just about anyone who might trade or sell a gun to a friend, family member or someone else to either apply for an FFL or never be able to transfer or trade a firearm.
This latest attempt to get in the way of citizens who’ve always had the right to gift, buy or sell a gun to a nonprohibited person began with the passage of the Bipartisan Safer Communities Act (BSCA), legislation that the NRA warned would likely be abused. Specifically, the BSCA amended the definition of “engaged in the business." That definition controls when a person engages in sufficient commercial activity involving firearms to need an FFL.
Previously, an individual only needed an FFL when engaged in “a course of trade or business” to buy and sell firearms with the “principal objective” of “livelihood and profit.” The BSCA, however, removed the “livelihood” element so that seeking profit alone could be construed to force anyone who sells a firearm for more than they initially paid for it to obtain an FFL or go to an FFL to have a background check completed.
The BSCA further defined “to predominantly earn a profit” to mean “that the intent underlying the sale or disposition of firearms is predominantly one of obtaining pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection.”
However, the BSCA did not eliminate the existing protections for 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.” A gun owner who fits within these exceptions is not required to obtain an FFL.
Despite these clear protections remaining in statute, the proposed rule creates a number of "presumptions" for being "engaged in the business" that are clearly intended to deter gun owners from engaging in lawful firearm transactions.
These “presumptions” include common conduct from law-abiding gun owners, such as when someone “advertises or posts firearms for sale, including on any website,” when a person includes the factory packaging with “like new” firearms in a sale, when a person keeps detailed records regarding their firearm sales, and more.
None of these “presumptions” appear anywhere in the federal statute, and each, like the BSCA, is readymade to be abused in the name of governmental overreach. Beyond this, the new rule does not give the ATF the authority to set a limit on the number of firearms transactions a person can engage in before needing to be an FFL, but the rule also goes on to describe how even a single transaction could trigger the need to be licensed, despite the requirement that a person engage in “repetitive purchase and resale” first.
“The government doesn’t even believe these made-up presumptions are lawful,” reported the NRA Institute for Legislative Action (ILA). “The proposed rule itself notes that ‘[t]he rebuttable presumptions  shall not apply to any criminal case, although they may be useful to courts in criminal cases, for example, when instructing juries regarding permissible inferences.’”
The Biden administration and the ATF seemingly know that this rule is unlawful, but this proposed rule is a push to require more Americans to become licensed dealers against the backdrop of this administration’s “zero-tolerance” policies in which the ATF has been shuttering licensed dealers at unprecedented rates.
In reality, the ATF does not have the resources to handle such a massive increase in FFLs. Instead, this is another attempt to forcefully sway internet service providers, gun shows, technology platforms and more into abandoning any involvement with private firearms sales or risk running afoul of the ATF.
“This latest action by the Biden administration is yet another step in their campaign to attack law-abiding gun owners. The Bipartisan ‘Safer Communities’ Act’s passage is now a pretext to require government permission before exercising a constitutional right. It’s a stark reminder to legislators: give gun controllers any legislative tool, no matter how benign, and they’ll use it to shred the Second Amendment. The Biden administration will clearly use all the tools at their disposal to interfere with our freedoms while doing nothing to stop the violent criminals responsible for America’s recent crime surge,” said NRA-ILA Executive Director Randy Kozuch.
During the build-up to this move, mainstream-media outlets heralded the Biden administration for unilaterally outlawing traditional gun shows or individuals selling firearms via a classified ad or an online form. The administration itself claimed this action moved “as close to ‘universal’ background checks as possible within existing law.”
This most-recent action from the Biden administration finishes with a declaration for Congress to take further action in pursuit of Biden’s anti-Second Amendment wish list. At the same time, more than 60 congressional Democrats wrote a letter to Biden urging him to leverage “the full power of the executive branch” in pursuit of this anti-freedom agenda.
To comment on the proposed rule changes, log on to regulations.gov and search for the docket number ATF 2022R-17.