In the legal world there is a Latin term in terrorem. The term is used to describe actions designed to intimidate or terrorize someone into a certain course of conduct, often in cases where the actual legal ability or willingness to demand that course of conduct are dubious. In short, rule through fear rather than legitimacy or the law.
In terrorem is an apt descriptor for the Biden administration’s notice of proposed rulemaking misinterpreting the statutory definition of “engaged in the business” of dealing firearms. The draft rule appears designed to give the public the misimpression that private individuals are no longer permitted to sell personal firearms without obtaining a Federal Firearms License (FFL or gun dealer license) or conducting the transaction through an FFL. Further, the way Biden’s Department of Justice constructed the draft rule suggests that the administration understands the limits of their authority but would still like to mislead the public into foregoing what should be lawful Second Amendment conduct.
First, the proposed rule must be understood in context.
The “engaged in the business” rule is designed to circumvent the U.S. Congress to criminalize, or give the appearance of criminalizing, the private transfer of firearms. Since the Gun Control Act of 1968, those engaged in the business of dealing firearms have been required to get an FFL and retain certain firearm transaction data. Further, pursuant to the 1993 Brady Act, FFLs are required to conduct background checks on prospective purchasers. Gun owners selling their personal firearm collection are not “engaged in the business” of dealing firearms and may privately sell their firearms without government interference.
For decades, anti-gun activists and politicians have sought to require more or all private firearm transfers to require a background check. Despite erroneous claims about the purported popularity of so-called “universal” background checks, the American people have repeatedly rejected efforts to criminalize private firearm transfers through their elected representatives.
Stymied by democracy, anti-gun forces turned their attention perverting the statutory definition of “engaged in the business.” Their goal is to have their allies in the bureaucracy misinterpret the term so broadly as to sweep most or all private firearm transfers under federal oversight.
In 2022 these efforts were given assistance with the ill-named Bipartisan Safer Communities Act. That gun control omnibus made a small textual change to the statutory definition of “engaged in the business.” The legislation removed language requiring an individual’s behavior be “with the principal objective of livelihood and profit,” changing it to require the conduct be “to predominantly earn a profit.”
The altered “engaged in the business” definition maintains language making clear that a “course” of “repetitive” buying and reselling of firearms is required to meet the definition of “engaged in the business.” Moreover, the definition still makes clear that the “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.”
NRA warned lawmakers at the time the BSCA was being debated that the Biden administration would use this small change as an opening to pervert the statute. These policymakers’ refusal to understand this threat was even more disappointing given Biden’s repeated weaponization of the executive branch against his political enemies and flagrant misinterpretations of federal law, as determined by the U.S. Supreme Court.
The portion of the proposed rule that has garnered the most attention concerns DOJ’s attempt to elaborate upon the “predominantly earn a profit” language. DOJ concocted several scenarios that the government claims will give rise to a rebuttable presumption that a person is seeking to “predominantly earn a profit.”
These include common law-abiding gun owner conduct, such as,
- “advertises or posts firearms for sale, including on any website”
- “Purchases, rents, or otherwise secures or sets aside permanent or temporary physical space to display or store firearms they offer for sale, including part or all of a business premises, table or space at a gun show, or display case;”
To read some of the coverage around the new rulemaking might give a person the impression that Biden administration unilaterally outlawed traditional gun shows or an individual selling a personal firearm via a classified ad or online forum. For instance, the Wall Street Journal reported, “Gun-Show Sellers Must Do Background Checks on Buyers, Biden Administration Proposes.” CBS News claimed, “sellers at gun shows and flea markets and who sell through the mail are required to obtain specific approvals and run background checks before selling guns.” The Washington Post reported, “According to the proposed rules, anyone who sells a firearm through mail order or at flea markets, gun shows and online must register online and conduct the necessary background checks.” Those latter two quotes are so similar, a reasonable person might wonder if they were cribbed from the same White House briefing document.
Coverage like this has disturbed law-abiding gun owners. Which may be the point.
However, a closer examination of the rule shows that DOJ has little faith in its own interpretation of the law. The rule makes clear that the Department only claims these presumptions are viable in civil and administrative proceedings and that they “shall not apply to any criminal case.” In other words, DOJ will try to use these presumptions in already dubious executive agency proceedings but won’t try to take these bogus presumptions into an actual courtroom. A cynic could be forgiven for thinking the entire exercise was designed to terrorize law-abiding gun owners out of engaging in what should be lawful conduct, while avoiding judicial scrutiny.
The classified ad and gun show presumptions are even more absurd in historical context. As noted, the American people through their elected representatives have repeatedly rejected efforts to criminalize private firearm transfers. Moreover, the Congress has explicitly rejected limitations on private firearm transfers pursuant to classified ads and gun shows.
President Joe Biden should know this. In late 2012, President Barack Obama tasked then-Vice President Biden with shepherding gun control legislation through Congress. The chief result of this effort was the Manchin-Toomey amendment. That legislation would have placed a background check requirement on firearm transfers that take place pursuant “to an advertisement, posting, display” or at a gun show. Congress rejected the Manchin-Toomey proposal.
So, if Congress ever intends to ban private firearm transfers pursuant to ads and gun shows, it has demonstrated that it knows how to do it. Given this clear legislative history, it’s no wonder DOJ doesn’t want to test its inventive statutory interpretation in the criminal courts.
Of course, whether DOJ’s implausible rulemaking stands up to legitimate scrutiny may be beside the point. Chilling Second Amendment conduct in terrorem could be enough for these anti-freedom zealots.