Last Thursday, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) announced a new proposed rule on the “Definition of ‘Engaged in the Business’ as a Dealer in Firearms.” --the definition that controls when individuals engage in sufficient commerce in firearms so as to need to be licensed under federal law as a Federal Firearms Licensee (“FFL”). Under the proposed rule, Biden’s ATF would go well beyond statutory authority to fabricate presumptions of when an individual needs be an FFL, and the rule itself acknowledges its unlawfulness.
Biden's ATF is using the Bipartisan Safer Communities Act (“BSCA”) that was signed into law in 2022 as the impetus for the proposed rule. For background, the BSCA amended the definition of “Engaged in the Business” to read:
“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,” (18 U.S.C 921(a)21)
and 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.” (18 U.S.C. 921(a)(22).
ATF’s recently proposed rule now aims to create several presumptions when a person is “engaged in the business,” despite the abovementioned definition that contains no such presumptions.
The law is clear that 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” is not “engaged in the business.” Despite these clear allowances, the proposed rule contains a presumption regarding renting a table at a gun show, collector show, or other swap meet. This conduct is clearly protected under federal statute if the person is only making “occasional sales, exchanges, or purchases” or if the person is using the table to sell all or part of a collection of firearms.
The presumptions go even further, and some would deter what many would consider responsible behavior when selling a firearm. There are presumptions of being “engaged in the business” where a person includes the factory packaging with “like new” firearms or where a person keeps detailed records regarding their firearm sales.
Of course, “factory packaging” could include the instruction manual, the included factory lock, and the case (which is likely suitable for safely transporting or storing the firearm). All of these items could be helpful to a new buyer (especially if the buyer is a first time gun owner), but the proposed rule would effectively punish including these items with a firearm.
And, treating detailed records regarding sales as evidence of a person being “engaged in business” just incentivizes sellers to keep no records at all. Apparently, the government is fine with making firearm tracing all that more difficult.
Remarkably, the government doesn’t even believe these made-up presumptions are lawful. 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.” One might wonder why a new proposed definition of a term that is used in federal criminal statutes cannot be used in criminal cases. The answer is likely that the government knows their own position is unlawful and they do not believe the regulation has any chance of surviving the application of the rule of lenity in a criminal case, where the accused is given the benefit of the doubt when a statutory term is ambiguous.
Beyond the tacit admission of the unlawfulness of the rule, the government does get one thing right. They correctly admit that the statute does not give them the authority to set a limit on the number of firearm transactions that a person can engage in before needing to be licensed. However, in true government form, after making this admission, the rule goes on to describe how even a single transaction could trigger the need to be licensed. So much for the statutory requirement that a person engage in “repetitive purchase and resale” before needing a license.
The Biden Administration claims that these changes can help move federal law towards so-called “universal background checks,” but that is potentially a trap for law-abiding gun owners. Transferring a firearm through a licensed dealer to run a background check does nothing to help a seller if they meet the government’s new expanded definition of “engaged in the business.” In fact, doing so could provide more evidence to the ATF to use against a seller that they claim is dealing in firearms without an FFL.
Moreover, it’s important to note that this proposed rule and push to require more people become licensed dealers is occurring under the backdrop of the Biden Administration’s “zero tolerance” policy, where the ATF is shutting down licensed dealers at an unprecedented pace. The irony that Biden wants to require as many individuals as possible become licensed dealers, while at the same time making it as difficult as possible be an FFL.
The proposed rule has not yet been posted in the federal register. Once it has there will be a 90 day period for interested persons to comment on the rule. Please check back to www.nraila.org for advice on where and how you can comment and help stop the Biden Administration’s most recent attack on law-abiding gun owners.