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The Biden Administration’s latest move to expand background check requirements for private gun sales has sparked intense reactions from gun rights organizations.
The National Shooting Sports Foundation (NSSF) and the Second Amendment Foundation (SAF) have both stepped forward to denounce the rule, each raising concerns about the implications for gun owners and the potential overreach of executive power.
In the wake of this rule that is said to close putative gaps at gun shows and online sales, the NSSF has accused the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) of exceeding its regulatory mandate.
Mark Oliva, NSSF’s managing director of public affairs, maintains that crafting law is the prerogative of Congress, not the ATF, and that the new rule has stretched beyond what legislation allows.
Oliva told GunsAmerica via email:
Congress made a one-word change to the “engaged in the business” definition by removing the word “livelihood” the courts had effectively read out of the statute. The law still defines a firearm dealer as, “a person who devotes time, attention and labor to dealing in firearms as a regular course of trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms, but such term shall not include 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.”
ATF has no authority to “improve” on what Congress enacted or to create new crimes not enacted by Congress. An agency may not re-write statutory terms or fill in what the agency considers to be “gaps” or “loopholes” in the statute. The Gun Control Act (GCA) is a criminal statute, and ATF’s reading is not entitled to any deference. Given that the GCA is a criminal statute with the same meaning in a civil context, ATF may not create presumptions thereon for civil or administrative purposes.
Echoing this sentiment, the SAF has characterized the rule as yet another aggressive stride in what it calls “Biden’s war on guns.”
Alan M. Gottlieb, SAF’s founder and Executive Vice President, perceives the move as an attempt to bypass Congress in forming new laws, which he believes will not deter criminals but rather will inconvenience law-abiding citizens.
SEE ALSO: Biden Signs Bipartisan ‘Safer Communities Act’ with Help from These 15 GOP Senators
Adam Kraut, SAF’s Executive Director, voiced concerns about the ATF’s potential misuse of power.
“Even more troublesome,” explained Kraut in a press release obtained by GunsAmerica, “is the potential for abuse by Biden’s weaponized ATF against private citizens legally selling their personal firearms collections or family heirlooms.”
This perspective is supported by the Bureau of Justice Statistics research indicating that gun shows account for less than one percent of guns used by criminals.
The rule, set to take effect in 30 days, seems headed for a federal court challenge as these organizations mobilize.
The NSSF is closely scrutinizing the Final Rule, and discussions with Capitol Hill lawmakers suggest legislative counteractions may be on the horizon.
Curious about the details? Here is how the Biden administration is positioning it:
The final rule makes clear when a person needs to become a licensed dealer and run background checks, and gives the Department of Justice additional tools to crack down on individuals illegally selling guns without background checks. Specifically, the final rule:
- Lists the types of commercial activity indicating that a person must become a licensed dealer and run background checks, absent evidence showing they are in fact not engaged in the business of firearms dealing. For example, if a person is repetitively selling guns of the same or similar make and model within one year of their purchase, they are supposed to become a licensed dealer. If a person repetitively sells firearms within thirty days of purchasing those firearms, or selling firearms and tells potential buyers that they can acquire additional firearms for that buyer to purchase, the seller is supposed to become a licensed dealer.
- States that the gun show or online sale loopholes do not exist. If you are conducting business that in a brick-and-mortar store would require you to become a licensed dealer, you have to become a licensed dealer and run background checks. It does not matter whether you are dealing firearms at a gun show, online, in your home, in the trunk of a car, at a flea market, or anywhere else—you must obtain a license and run background checks results. Evidence that a person placed ads online or reserved a table at a gun show shows that the person is intending to profit from the sale.
- Prevents people from evading the licensing and background check requirements by claiming that they are just selling a few guns. The final rule clarifies that even a single firearm transaction may be sufficient to require a license, if there is other behavior to suggest commercial activity. For example, a person selling just one gun and then saying to others they are willing and able to purchase more firearms for resale may be required to obtain a license and run background checks.
- Prevents people from falsely claiming that guns are part of a personal collection in an attempt to evade the law. The statute explicitly states that making occasional sales of a firearm from a personal collection or liquidating collection does not require a federal firearms license or background checks. However, people have evaded the background check requirement by falsely claiming they are selling their personal collection. The final rule makes clear that a personal collection of firearms is limited to collections acquired for specific reasons like study; comparison; exhibition; or for a hobby, like hunting or sport shooting. A bona fide personal collection is not the same as business inventory.
- Closes the so-called firesale loophole. Gun dealers who have had their licenses revoked have sometimes then sold their former business inventory without running background checks. The final rule makes clear that a business inventory may not be transferred to a person’s personal collection after a license is revoked. Instead, a business could dispose of this inventory through another licensed seller who runs background checks.
The Biden administration says the new rule potentially impacts over 20,000 “unlicensed” firearms sellers, who, alongside the existing 80,000 licensed dealers in the U.S., will now be required to conduct background checks under the Bipartisan Safer Communities Act.
They estimate that up to 80,000 individuals could be affected by this change, though precise numbers are hard to determine due to “legal limitations on tracking firearms.”
What do you think of the new rule?
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First, this is not in Biden or any other president’s job description. He is commander and chief of the military. So have a coke and a smile and shut up.
Second, the ATF is a regulating agency. They don’t make laws to suit them.
Third, I haven’t been to a gun show where there weren’t background checks. If you take your chance and buy a gun in the parking lot, that’s on you.
Forth, Don’t we already have the gun laws and background checks. Why do we have to reinvent the wheel. Just enforce the laws.
When the ballot box becomes irredeemably corrupted, the ammo box becomes the only alternative.
Eff Joe Biden and the ATF!!!!
Biden is a puppet of the Obama regime and has no clue what he is doing. His intention is to sell out America and stay in power another 4 years. Otherwise he’ll end up in a old folks home
#FJB couldn’t pass a background check, we need to get this silly pedophile out of office and into a nursing home.
Someone accussed in writing of sexually molesting his own daughter as a young child, should NOT be making decisions background checks.