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  • HOLLAND MCKINNIE

ATF Rule Could Make Single Gun Sale A Felony


Joe Biden’s Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has issued new regulations that significantly tighten the requirements on who must register as a Federal Firearms Licensee (FFL). Second Amendment advocates argue the rule is an unconstitutional move to attack private gun sales and ramp up federal oversight of firearms transactions.


Historically, the definition of being “engaged in the business” of gun dealing required the intent to make a livelihood from gun sales, a standard that is now broadened to include any profit-seeking activity. This vague criteria of the rule is likely to set a trap for law-abiding citizens who could find themselves classified as a “dealer” by an unaccountable federal agent and thereby subjected to the byzantine rules and paperwork that FFL holders face every day.  Unwary private sellers could be charged with a felony for a singly gun sale to a neighbor.


The potential implications of these changes are profound. Selling a firearm shortly after its purchase or in its original packaging now triggers a presumption of being engaged in the business of dealing guns. The Biden ATF claims the rules are authorized by a congressional amendment passed in 2022, although the language of the rule appears to stretch far beyond what Congress intended.


The Second Amendment Foundation has condemned the move as a tactic to “terrorize law-abiding gun owners. National Shooting Sports Foundation public affairs director Mark Oliva told reporters, “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.”


The rule is set to take effect within 30 days of its announcement, and discussions about its legality and constitutionality are already leading to promises of legal challenges. Alan Gottlieb of the Second Amendment Foundation has already predicted the new regulations will face immediate scrutiny in federal courts. In addition to lacking congressional authority, the regulations appear to clearly contradict the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association Inc. v. Bruen.


Gottlieb added: “The president is claiming this will keep guns out of the hands of felons, and he knows better. If history has taught us anything, it would be that criminals do not obtain the guns they use through legitimate channels and that gun control laws have never prevented criminals from obtaining a firearm. All this rule will accomplish is to place yet another burden on honest citizens wanting to exercise their Second Amendment rights.”




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