The ATF’s proposed rule expanding who is “engaged in the business” of selling firearms is being lauded by anti-gun groups like Giffords, which says the rule “moves us closer to universal background checks than we’ve ever been,” while the National Shooting Sports Foundation is panning the new proposal as yet another example of executive branch overreach by the Biden administration.
BSCA did not change fact to qualify as a dealer a person must devote 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. The sweeps too far @NSSF @ATFHQ https://t.co/Q7F762Rhw2
— Larry Keane (@lkeane) August 31, 2023
Under the proposed rule, anyone that so much as attempts to sell a privately owned firearm for a profit could be deemed by the ATF to be an unlicensed firearms dealer, even if the sale doesn’t take place or no profit is gained. At the same time, the agency maintains gun owners won’t be deemed “engaged in the business” of selling firearms if they make only “occasional sales to enhance a personal collection, or for a hobby, or if the firearms they sell are all or part of a personal collection.”
While the ATF declined to define “occasional sales”, it has attempted to define the term “personal collection”, and I couldn’t help but laugh and roll my eyes when I saw it.
Personal collection, personal collection of firearms, or personal firearms collection.
(a) Personal firearms that a person accumulates for study, comparison, exhibition, or for a hobby (e.g., noncommercial, recreational activities for personal enjoyment, such as hunting, or skeet, target, or competition shooting). The term shall not include any firearm purchased for the purpose of resale or made with the predominant intent to earn a profit.
Notice anything missing from the reasons why someone would accumulate personal firearms? Yep, the ATF has ignored the single biggest reason why people purchase a gun: self-defense.
Now, I don’t think the absence of self-defense as a reason why someone accumulates firearms is going to have a substantive impact on how the proposed rule would be enforced, but it’s still worth mentioning, if only because it demonstrates the unwillingness of the Biden administration to admit that most people purchase firearms because they want to protect themselves or others from harm. The Second Amendment protects the right to engage in recreational activities with a firearm, as well as collecting vintage and valuable pieces, but it’s not fundamentally premised on the right to hunt or target shoot. Instead, at the heart of the right to keep and bear arms is the right to armed self-defense.
This exclusion is hardly the worst part of the ATF’s proposed rule. As Keane pointed out, nothing in the Bipartisan Safer Communities Act changed the existing determination that “a person must devote 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” in order to be “engaged in the business” of dealing in firearms. Under the ATF’s proposal, if I wanted to sell one of my rifles to my neighbor for $100 more than I paid for it, that alone would be enough for the agency to declare that I needed to possess a Federal Firearms License, and under the proposed rule I would be considered guilty from the outset unless I could provide evidence to the contrary.
As Keane told one person on X who asked if the NSSF would be filing suit over the proposed rule at the appropriate time, “there will be a line at the courthouse to file.” The ATF has already been smacked down by the federal courts over its administrative ban on bump stocks, re-defining incomplete frames and receivers as “firearms,” and declaring that pistol stabilizing braces turn common handguns into short-barreled rifles, and the agency’s latest proposal is just as abusive of agency power as the rest of their recent rules. Litigation is premature until the proposed rule has been finalized and is set to take effect, but the lawsuits are coming, and I don’t think the proposed rule is going to fare well once the courts get involved.