The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has announced another “Final Rule” criminalizing a practice that has been legal since the nation’s founding. The new rule, entitled Definition of “Engaged in the Business” as a Dealer in Firearms,” will take effect on May 10, 2024. The Final Rule represents the current administration’s attempt to end private firearms sales in the United States.
In short, selling a gun to anyone other than a family member means you are “engaged in the business” of firearms sales and will be required to have a Federal Firearms License (FFL). Selling without a license can carry a penalty of five years in federal prison and a $250,000 fine. For selling a gun to your neighbor.
The “Gun Show Loophole” Propaganda
News reports frame the new rule as closing the so-called “gun show loophole.” The ‘gun show loophole” is a propaganda term created by gun controllers to scare the public despite the demonstrable fact that very few crime guns originate from gun shows. The term has always been a cover for efforts to outlaw private sales between individuals. You can read more about the “gun show loophole” myth here.
This propaganda was on full display on April 12, the day the ATF released the new rule, when I received a rather inflammatory email from my United States Senator. “After decades of trying,” the email says, “we’re closing the gun show loophole.” It then goes on to spout the gun control line and how he’s pushing for even more unconstitutional nonsense. As you might imagine, the email prompted a salty reply from your humble correspondent.
White House Propaganda
The White House also released a “fact sheet” regarding the new rule. It claims that “Unlicensed dealers who do not conduct background checks are also the largest source of firearms that are illegally trafficked into our communities.”
A link is provided to a 2019 Justice Department report supposedly validating that claim. Instead, the report addresses “black market guns,” which account for 43% of crime guns. Another 6% of criminals say they stole their guns, 10% say they bought them legally, and 11% were from straw purchases, which are already illegal. A high percentage of black market guns are undoubtedly stolen as well. So, at least 60% of crime guns are sourced illegally. Only 15% of criminals say they got their guns from a friend or relative. Oh, and only 0.8% of crime guns were purchased at gun shows. So much for the “loophole.”
Executive “Universal” Background Checks
You can read those results in one of two ways. First, “black market” implies criminal sales, which we all know will not be impacted by the new rule. I’m sure the criminals who sell to drug gangs will say, “Golly, there’s a new ATF rule saying that I need a license for this. You guys will have to wait until all that’s approved. Sorry, fellas.” We all know that won’t happen. ATF and the White House Office of Gun Violence Prevention, where this rule was likely conceived, know it too.
So, the only way this rule makes sense is to conclude that the most anti-gun administration in American history has decided that they don’t want private citizens selling guns without a federal background check. We’ve been hearing about so-called “universal” background checks for years. But Congress hasn’t enacted such a law because it’s only enforceable through a national firearms registry, which is illegal. There is evidence, however, that ATF maintains a de facto searchable registry, but that’s a story for another day.
Gun controllers have long misrepresented internet gun sales. Online retailers and websites like Gunbroker will only ship to an FFL, meaning the buyer still has to pass a background check to complete the transaction. The anti-gunners, however, want the public to believe that UPS will just deliver a gun to their door, no questions asked. But private sales are also arranged over the internet. I’ve done that myself, though it’s been a while. The rule wants to stop that practice, though it’s no different from any other private sale in the end.
This rule looks like an attempt to create “universal” background checks while blaming “rogue dealers” for criminal actions. Criminal actions that governments on every level refuse to address. Essentially, the administration has decided that selling a handgun to your friend or neighbor makes you a “rogue dealer,” and they’re going to shut you down, you hardened criminal you. Meanwhile, the black market rolls on, unscathed by rules. But as we said, the White House knows that.
“Engaged in the Business”
The rule redefines the definition of who is “engaged in the business” of selling firearms. It focuses on selling guns for profit, but the White House says that “the Final Rule clarifies that even a single firearm transaction may be sufficient to require a license.” That’s right. Just one transaction. But it gets better. The rule also says that actually selling the firearm may not be necessary to invoke its enforcement.
The rule states that “Even a single firearm transaction, or offer to engage in a transaction, when combined with other evidence, may be sufficient to require a license.” That’s right. Offer to sell your friend a hunting rifle, and you could go to federal prison. The rule is unclear on what constitutes “other evidence.” Yet the rule also states that persons “are not ‘engaged in the business’ [if] they make only occasional sales to enhance a personal collection or for a hobby, or if the firearms they sell are all or part of a personal collection.” That seems to contradict the previous statements. Not only is it vague, it’s also subjective. In fact, the entire 466-page rule, which I slogged through this weekend, is incredibly vague, with numerous qualifiers and theoretical situations. Lots of people will unknowingly get caught up in this thing.
How vague is the rule? Well, the whole thing revolves around Joe Biden’s March 2023 executive order directing Attorney General Merrick Garland to “clarify the definition of who is required to obtain a federal firearms license.” That evolved into defining who is “engaged in the business.” ATF takes 466 pages to define that simple term. Lawyers wrote the rule for other lawyers. It’s a mess of legalese, which I believe is deliberate, given the administration’s history. It’s designed to discourage and eventually eliminate private gun sales.
The ATF has, however, generously allowed auctioneers to continue their activities at estate sales and such. I have not, however, seen any reference to the actual property owners who engaged the auctioneer. Maybe they’ll need an FFL before trying to sell Grandpa’s gun collection.
Thank Your Senators
Biden claims the authority for his executive order came from the 2022 Bipartisan Safer Communities Act (BSCA), which was passed after the tragic Uvalde, Texas school murders. Fifteen supposedly pro-gun senators supported the law, guaranteeing its passage. Biden immediately took credit for the law, claiming it to be the “most significant gun safety legislation in thirty years.” That legislation has given us federal bribery for states to pass Red Flag laws and attempted federal defunding of school hunting and archery programs. Those came directly from the White House gun control office. Now, we have an Executive Branch effort to criminalize private firearms sales.
Now What?
Let the lawsuits begin. Like the other overreaching ATF rules under this administration, this rule clearly goes too far. Recent court cases have indicated a growing trend of reeling in executive agencies that overstep their legal authority. The simple fact is that these agencies do not have the power to enact federal law. Yet, this rule does exactly that. Violations can land someone in prison for up to five years and carry a $250,000 fine. Those are criminal penalties that only the Legislative Branch can impose.
ATF rules have been challenged recently by saying they violate the Administrative Procedures Act, which they have. But APA violations mean the agency can just go back and do it over, this time following the proper procedures. I’d like to see the Executive Branch’s authority to make such rules challenged directly. The administration, through the ATF, is clearly violating the Constitution’s Separation of Powers directives. The Executive has been accumulating power to itself for decades. It needs to stop. A feckless Congress that shies away from difficult issues is also to blame, but that’s another story. Just understand that Congress is happy to stand back and wring their hands without extending their collective necks on electorally divisive subjects.
So, once again, it’s up to us. Please consider supporting the organizations that fight for our Second Amendment rights. You know who they are by now. It will likely take a couple years to accomplish, but this is a bad rule. We need to make it go away.
