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New Details Leaked on Biden Administration’s Upcoming Background Check Power Grab

Monday, August 14, 2023

New Details Leaked on Biden Administration’s Upcoming Background Check Power Grab

Last week, we reported on the Biden Administration’s treacherous move to defund scholastic archery, hunting, and marksmanship programs under an obscure provision of the Orwellian Bipartisan Safer Communities Act (BSCA). The BSCA has proven to be the gift that keeps on giving for extreme and persecutory gun control, to the mortification of some of its more moderate supporters who thought they were voting for provisions aimed at reducing crime and increasing access to mental healthcare. Now, details are emerging of Biden’s latest plans to leverage the sprawling, sinister act in his continued pursuit of civilian disarmament. This time the target is eliminating the age-old practice of noncommercial, private firearm sales.

Biden has not been coy about his ambitions to push existing law as far as possible (and likely past the breaking point) toward “universal” firearm background checks. We have already reported on an executive order he released in March, the first item of which was “moving the U.S. as close to universal background checks as possible without additional legislation.” But Biden did have legislative help from the BSCA in this effort, which amended a critical legal term concerning who is considered “engaged in the business” of firearm sales, and therefore required to become a federal firearm licensee (FFL) and run background checks on all retail transfers.

Previously, an individual only needed an FFL 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.This change broadened the FFL requirement, but a “course” of “repetitive” buying and reselling of firearms is still necessary. Nevertheless, it has remained unclear where the lines are to be drawn.

Now, the New York Times is reporting that Biden will move ahead with implementing a longtime goal of the anti-gun movement: setting a numerical threshold of sales that will establish when an individual needs an FFL. That article states:

The regulations will set a threshold number of transactions that would define a dealer; gun-control groups hope to see it at five sales a year or lower. The rules will be backed up by a renewed push to prosecute businesses that refuse to register, by accessing bank records, storage unit leases and other expenses associated with running an off-the-books gun business.

Indeed, gun control groups had pushed for this same move under the Obama/Biden administration. But even Obama’s army of anti-gun lawyers could not come up with a way around statutory language and judicial interpretations that pre-empted this approach. If the New York Times’s report is true, Biden is clearly hoping activist courts will hang their hats on the changes made by the BSCA to ratify the fiction that Congress used that act to authorize a numerical threshold for who is required to obtain an FFL.

Of course, the BSCA says nothing of the sort. “Livelihood” may not be the same thing as “profit,” but the structure that has always required a case-by-case determination based on the facts of each situation remains in place.  Also remaining in place are longstanding qualifications in the law that allow for “occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby” or for the sale of “all or part of [a] personal collection of firearms.”

Yet the Biden Administration has already shown a distinct willingness to ignore limitations on its authority in other ambitious gun-control rulemakings, a number of which remain mired in ping-ponging judicial proceedings that have substantiated plaintiffs’ allegations of overreach. This rule will almost certainly be no different.

Biden’s gun control schemes, however, reach well beyond agency enforcement and court proceedings. Collaborators in the technology and financial sectors stand ready to help the administration implement its policies with corresponding censorship, de-platforming, and de-banking. Armslist, which was featured at length in the Times report as a supposed private sales boogieman, lost its YouTube account within days of the article’s publication. And popular payment processing, website design, auction sites, social media, and business support software companies or online platforms have already banned even legal firearm sales from their business models. Absent explicit evidence of collusion, these “coincidental” confluences of private sector “business decisions” with administration enforcement policies will be difficult to reach through the judicial process.

The NRA of course opposed the BSCA and warned the public and its moderate supporters 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.” This warning, unfortunately, has been borne out again and again, and the upcoming background check rulemaking could be the most dramatic example yet.

Stay tuned for further developments, and rest assured that the NRA will use all available measures to continue to counteract the Biden administration’s abuse of the BSCA and other provisions of federal law.

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NRA Files Lawsuit Challenging Maryland’s Glock Ban

Wednesday, May 27, 2026

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Talking Turkey: Spanberger Admits Legislation Bans Firearms “Frequently Used” for Lawful Purpose

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Tuesday, May 26, 2026

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New York:  Gov. Kathy Hochul and Democrat Majorities Use The Budget to Adopt Gun Ban

Saturday, May 23, 2026

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On Thursday, May 21, the New York Senate and Assembly used the State Budget as a vehicle to not only finance state government but also to pass a handful of their other policy priorities. 

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Wednesday, May 27, 2026

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On Wednesday, May 27, Gov. Kathy Hochul signed S.9005C, which “enacts into law major components” of the state’s public protection and general government budget.

New ATF Director Tells Congress Agency Committed to Rebuilding Trust with the Industry, Federal Firearms Licensees, Lawful Gun Owners

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Tuesday, May 26, 2026

New ATF Director Tells Congress Agency Committed to Rebuilding Trust with the Industry, Federal Firearms Licensees, Lawful Gun Owners

America’s Second Amendment community had some insights into the outlook of the newly confirmed ATF Director Robert Cekada, when he recently testified before the House Oversight Committee’s Subcommittee on Federal Law Enforcement. 

Bloomberg’s Concealed Carry Policy Guide Built on Bureaucracy, Not Public Safety

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Tuesday, May 26, 2026

Bloomberg’s Concealed Carry Policy Guide Built on Bureaucracy, Not Public Safety

Anti-gun extremist Michael Bloomberg thankfully commands fewer headlines these days. But policy efforts like the latest “Public Carry Permitting Model Policy Guide”  from the Johns Hopkins School of Public Health’s Center for Gun Violence Solutions still ...

Virginia: Spanberger Signs Unconstitutional Gun Bills into Law

Thursday, April 23, 2026

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Today, April 23rd, Governor Spanberger Signed HB1525 and SB727/HB1524 into law. 

NRA-ILA Applauds House Passage of Veterans Protection Bill

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Thursday, May 21, 2026

NRA-ILA Applauds House Passage of Veterans Protection Bill

Today, the U.S. House of Representatives passed H.R. 1041, the Veterans 2nd Amendment Protection Act. This bill, sponsored by Chairman Mike Bost (R-IL-12) would reverse a controversial and deeply troubling policy that stripped veterans of ...

Cert Petition Filed in NRA-Supported Challenge to Maryland’s “Sensitive Places” Carry Restrictions

Wednesday, May 20, 2026

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A petition for a writ of certiorari has been filed in the NRA-supported case, Kipke v. Moore, seeking Supreme Court review of Maryland’s sweeping carry restrictions enacted under the Gun Safety Act of 2023.

Connecticut: Governor Lamont Chooses Political Theatrics Over Constitutional Rights with Pistol Ban

Tuesday, May 26, 2026

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Today Governor Lamont signed away more 2nd Amendment rights of law-abiding Connecticut residents by signing H5043 - A bill he himself requested that bans future manufacture, sale, and importation of many commonly owned handguns in ...

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.