ATF aiming at private sales of firearms?

Remember a few months ago when Joe Biden said he’s reached the limits of his executive authority when it comes to new gun control measures? I’m not sure that President Mumbles himself recalls making that statement, but he did say it. As we predicted, however, that statement didn’t last too long. On today’s Bearing Arms’ Cam & Co I’m joined by Ammoland’s John Crump, who has the rough outlines of a new ATF order that’s apparently being worked on behind closed doors; this one aimed at curtailing most private sales of firearms.


President Joe Biden plans to announce that he is directing the ATF to close what Everytown calls the “private sales loophole” and the “digital loophole.” The “private sales loophole” is when an individual sells a firearm for profit but does not possess a Federal Firearm License (FFL).

Biden will call on the ATF to develop a new rule requiring anyone who makes a profit by selling firearms to possess an FFL. Guns tend to increase in value over time. A gun purchased in 1980 will likely sell for more money today than its original value.

The so-called “digital loophole” includes marketplaces like Armslist, where private individuals can list their firearms for sale. The Biden administration wants to see these marketplaces shut down, but it is unclear exactly how that lofty goal will be accomplished. Websites like Armslist do not sell firearms.

How easily the rule could be enforced is probably less of a concern for the gun control groups and their allies in the White House than putting the rule in place, at least to start.

Why is the ATF drafting this new rule now? As Crump reports, it all has to do with the Bipartisan Safer Communities Act. We’ve already seen Biden and Education Secretary Miguel Cardona use language within BSCA to deprive schools with archery and hunting ed programs of valuable federal grant dollars, and now another provision of the BSCA appears to be the linchpin of the draft ATF order on gun sales.


The BSCA was a massive gun control bill that passed Congress with the support of some Republicans. The bill changed the definition of a “gun seller.” The BSCA altered the wording of Section 921(a) of Title 18, United States Code. The BSCA altered the definition of someone “engaged in the business” of selling guns from “with the principal objective of livelihood and profit” to the ambiguous statement of “to predominantly earn a profit.” Now the Biden Administration is exploiting that change through the upcoming rule. From the text of the BSCA:

(22) The term `to predominantly earn a profit’ means 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: Provided, That proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism.

Many gun rights groups tried to warn Republicans such as Senator John Cornyn, chief architect of the BSCA, that the Biden administration would exploit the anti-gun law, but these pleas were ignored.

The main force pushing for the new rule is Everytown for Gun Safety. The Bloomberg-backed group sees the new requirements for sellers to obtain an FFL to get closer to universal background checks (UBC). President Biden and other Democrat politicians have taken millions of dollars from the group and will need the organization’s war chest for the upcoming elections.


As Crump notes, the ATF is currently drafting the proposed rule, and we don’t know what all of the details will look like when the draft is ready for public inspection. Crump says the Biden administration is aiming to release the proposed rule later this year with an eye towards putting it into effect next fall, but we don’t have any specifics as to when the text will be published for all to peruse.

If, as Crump suspects, the rule is written as broadly as gun control groups like Everytown want, then someone selling just one or two firearms could be charged with violating Section 921(a) of Title 18. And while the proposed rule may prompt some gun owners to get their FFL license, don’t forget that Everytown and others are complaining that there are too many FFLs already and specifically arguing that “[r]esidential license holderssome in private homes, do not need to notify neighbors or place signage indicating that they can sell or manufacture guns in their homes.” Wanna bet that Everytown is already lobbying for new regulations to go along with FFL licenses, particularly for those not operating traditional brick-and-mortar gun shops?

Be sure to check out the entire conversation with John Crump in the video window below, and stay tuned for more info in the weeks ahead. The ATF’s recent rules have already come under fire from the judiciary, and if this proposal is ultimately enacted it will face a similar court fight, but Congress can and should step in to head the ATF off at the pass. The BSCA language that’s being used to strip school districts of federal funds is drawing bipartisan opposition and may even lead to a bill changing the offending provision, and if lawmakers are gonna go back and revise one part of the BSCA they can do the same for the new definition of a “gun seller.” Repealing BSCA in its entirety would be an even more appropriate remedy, but for that to happen we’re going to need to take back the Senate and the White House in 2024 and deny the gun grabbers they so desperately crave in Washington, D.C.


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