The ATF final rule’s definition of “engaged in the business” of a firearms dealer amounts to 466 pages of responses to comments and the final rule itself. Over 252,000 of the 258,000 comments, or 98% in favor of the proposed rule, were identically worded form letters found online and recommended by (anti-gun) organizations. Only 5,140 were not form letters. Of the 99,000 comments against the rule, 80,000 or 81% were form letters. This means that 18,810 were not form letters. So more than three times as many opponents submitted concrete comments as those in favor.
The final rule is substantially the same as the proposed rule. See my previous post “‘He’s Trying Again!’ Merrick Garland proposes increasingly intrusive ATF regulations.” A number of points that I (and others) made in comments submitted in opposition to the proposed rule were taken seriously enough for the ATF to reject them at length.
A new element stands out. The Gun Control Act (GCA) excludes casual sales and purchases of a “personal collection” of firearms from the term “engaged in the business” of dealing in firearms. The proposed rule defines “personal collection” to include curios, memorabilia, and firearms used in recreational activities. In response to numerous comments criticizing the proposal not to include firearms used for self-defense, the final rule explicitly states that “the term [personal collection] needs to Not include firearms accumulated primarily for personal protection.” However, nothing in the statute excludes such firearms from being part of a personal collection.
By purporting to exclude the occasional purchase and sale of firearms acquired in self-defense from the “personal collection” category, the rule would make it more likely that the person would be subject to the licensing requirement. Yet that category was enshrined in the Firearm Owners’ Protection Act of 1986, which declared that the rights of citizens… to keep and bear arms under the Second Amendment to the United States Constitution… require additional legislation to correct existing gun statutes. firearms and enforcement policies. And the Supreme Court clarified DC vs. Heller that the Second Amendment protects “weapons ‘in common use at the time’ for lawful purposes such as self-defense.”
In defining a dealer as “engaged in the business”, the law states that “there is no minimum threshold for the number of firearms purchased or sold that triggers the licensing requirement” and that “even a single firearm transaction or an offer to engage in a transaction, when combined with other evidence… may require a license.” This seems rather vague given that engaging in firearms dealing without a license is a serious crime.
The rule aims to create a presumption in civil and administrative proceedings that you are carrying on the business if you “resell or repeatedly offer for resale firearms” within 30 days of purchase, or within one year of purchase if the firearms fire are “new, or like new in their original packaging” or “of the same make and model, or variations thereof.” These are activities that collectors typically engage in, sometimes rapidly scaling the collection upward with further collectible acquisitions and collecting variations of the same make and model. Nothing in the GCA imposes such time limits.
The rule also seeks to create a presumption in civil and administrative proceedings that “a person intends primarily to make a profit” if the person “publishes firearms for resale, including through the Internet” or repeatedly rents “a table or space at a gun shop.” entertainment” and the list of presumptions “are not exhaustive.” Again, these are activities in which collectors typically engage. And the statute excludes from this “overriding intent to profit” occasional sales aimed at enriching a collection personal.
The rule claims that the above rebuttable presumptions do not apply to criminal cases, but says otherwise by stating that they “may be helpful to courts in criminal cases, for example, when instructing juries regarding permissible inferences.” Jury instructions are based on statutory texts and judicial opinions, not on advocacy by the agency itself involved in prosecuting alleged violations.
Many comments argued that the rule violates the Second Amendment. While dictating in Heller did not question the validity of “laws imposing conditions and qualifications on the commercial sale of weapons,” the new rule – which is not a “law” – redefines the term “engaged in commercial activity” to include many private, non-commercial sales.
The ATF comment includes the following fundamental misunderstanding of Supreme Court precedent: “In response to commenters who asserted that the Department should not use the Heller two-step process, the Department recognizes this The bridge repealed the “two-step” framework of Helleras “one step too many”, and rejected the application of means-ends testing in the second phase.” But it was the lower courts that hindered HellerNot Heller, who invented the two-step framework. Based on the text and the story, Heller rejected means-ends scrutiny (for which Justice Breyer argued in his dissent), and NY State Rifle & Pistol Ass’n v. The bridge strengthened and expanded that refusal.
In support of expanding licensing requirements, the ATF’s response seeks to find historical analogs below The bridge in the wrong places. In 1794, Congress restricted the export of arms and materials to enhance America’s armaments at a time when war with Great Britain threatened. The colonies limited arms trade with the Indians to reduce the threat from hostile tribes. Massachusetts has enacted a gun testing law. Various gunpowder laws were enacted to ensure a safe and reliable supply. None of these laws match the “how” and “why” of the rule’s radical expansion of licensing requirements.
The ATF comment fails to rebut comments that the agency does not have delegated authority to promulgate the rule. In enacting the Gun Control Act in 1968, Congress rejected a provision that would have made it a crime to violate a regulation. Instead, all GCA offenses are defined in terms of violations of “this chapter,” i.e., Chapter 44 of 18 USC, the Penal Code. The Firearm Owners’ Protection Act of 1986 reduced the ATF’s rulemaking authority by changing the original phrase “the rules and regulations made thereunder” [the Secretary] deems reasonably necessary” to “only such rules and regulations as are necessary.” Finally, Congress’s delegation to the ATF to promulgate explicit and limited regulations denies the power to adopt general and expansive regulations under the rule the expression of one is the exclusion of another.
The commentary also fails to refute comments citing Supreme Court precedents such as Thompson/Center Arms vs. United States holding that both criminal and noncriminal applications of a law should be interpreted consistently and, if ambiguity exists, interpreted against the government in accordance with the rule of leniency.
Finally, on some issues the ATF is clearly wrong, but still stands by its mistake. For example, the GCA prohibits an FFL from transferring a firearm in interstate commerce to a non-FFL, but exempts “the return of a firearm or replacement firearm of the same type and type to a person from whom it was received.” 18 USC § 922(a)(2)(A). The ATF adds the limitation that it can only be returned “for the sole purpose of repair or customization,” which justifies why the phrase “has long been in the regulations.” Never admit a mistake, especially if it is a long-standing one.
“As more and more people become licensed under this rule, such licensees will conduct more background checks,” as the comment correctly states. Indeed, this is its purpose. Since Congress rejected universal background checks, the Biden administration decided to do the same via regulation.
This “engaged in business” rule is the third major set of new rules established by Attorney General Garland, following those on “frames or receivers” and “handgun braces.” They were preceded by the Trump administration’s “bump-stock” rule, of which it is the subject Cargill vs. Garland, as the Supreme Court has supported in this legislature. We will see if the Court will set limits to what has become a constant exceeding of regulatory limits by the executive power.
* * *
As I posted last week, the Commissioner of the Washington Supreme Court has scheduled a hearing for April 17 on the stay he issued of the injunction against enforcement of the state’s magazine ban that was ruled unconstitutional by the Cowlitz County Superior Court in Washington State vs. Gator’s Custom Guns. During the hearing, the commissioner responded to criticism that he granted the stay without taking time to study the court’s 55-page ruling and the state’s 32-page stay motion. He states that he received the documents on April 8 at 4.14 pm and that he issued the formal notice at 4.58 pm. He did not need additional time to review the documents because he had done “a lot of research” beforehand and had become an expert on the matter; he “anticipated all the arguments the attorney general would make” and had “boilerplate models” for the suspension order.
Most of the “hearing” consisted of the Commissioner’s reflections. A 12 gauge shotgun or revolver would be sufficient for self-defense. A semi-auto works well with 5 or 10 shots. Judge Benitez’s decision Duncan vs. Bonta believing that California’s magazine ban violated the Second Amendment was based on experts who were “snake oil” salesmen. The weapons that the pioneers had when Washington was colonized were “incredibly” different from those today. The commissioner expects a decision will be made next week whether the suspension will be made permanent. Don’t hold your breath waiting for it to be lifted.