A Frustrating Anniversary and a Looming Deadline

Wednesday marked the one-year anniversary of oral arguments in Bianchi v. Brown; a challenge the state of Maryland’s ban on so-called assault weapons that was accepted by the Supreme Court but sent back down to the Fourth Circuit for a do-over shortly after SCOTUS released the Bruen decision. On today’s Bearing Arms Cam & Co, Firearms Policy Coalition’s general counsel and vice president of legal Cody J. Wisniewski reassured me that I wasn’t the only one hoping that the three-judge panel who heard the oral arguments would give gun owners an anniversary present by releasing their decision on the ban on Wednesday, but cautioned that too much shouldn’t be read into the long wait for answers. 


“You could throw a million theories at why the circuit court is taking so long. You know, sometimes you get a decision from a circuit court within three months, which in terms of litigation is light-speed. It is pretty uncommon that you get over a year, but there was a point in time in the past, however, when the Ninth Circuit’s average time to a decision was 18 months, so it’s not uncommon to happen in this space, and you could draw conclusions either way.”

While Wisniewski is waiting for that decision, he’s also turned his attention to today’s deadline for public comment on the ATF’s newest proposed rule; this one aimed at gun owners who might want to sell a part of their private collection. As the National Shooting Sports Foundation explains, the rule seeks to redefine who is “engaged in the business” of dealing firearms, and would require “nearly any individual selling more than one firearm to obtain a federal firearms license (FFL) and move the United States toward universal background checks, which was rejected by Congress.”

Wisniewski agrees with that description, telling Bearing Arms that what the ATF is doing is trying to make that definition of who’s engaged in the business so broad that it would capture nearly every transaction in the United States, or at least make people believe that any person-to-person sale could subject them to federal felony charges and the potential of a prison sentence. 


“One of the exemplars given by the ATF in the proposed rule is that if you sell a firearm and during that sale convey that you may want to sell another, or you may want to buy a firearm, then you’re probably engaged in the business,” Wisniewski explained. 

The ATF’s rule is vague and unspecific that you don’t even have to complete a sale to potentially be considered “engaged in the business”, nor do you have to derive a profit from the sale of a single firearm. The rule also shifts the burden of proof from the accuser to the accused. If the ATF says you’re “engaged in the business” without an FFL, it’s up to you to prove otherwise. And there are no clear, bright lines for gun owners to follow; something Wisniewski says is by design.

That’s what we’re seeing now from the ATF. We saw it at the end of the Trump administration [with the bump stock ban], we’re seeing it in the Biden administration. They’re taking the congressional law and trying to stretch it as far as humanly possible, give themselves as much authority as humanly possible, and scare people. It puts people in this place where they can’t know whether their firearm is a pistol or an SBR, they can’t know whether the lower receiver that they have is a lower or not. And now they can’t know if they engage in a private sale if they’re actually ‘engaged in the business’ without a license or not. And all of these things bear criminal penalties. We’re talking felony charges. We’re talking ten years in prison. This isn’t a misdemeanor or a speeding ticket. They’re playing with people’s rights, they’re playing with people’s lives, and they’re trying to scare people into just not engaging in any of this activity at all.


The FPC will be submitting a public comment of its own, but Wisniewski says the group is also prepared to sue over the proposed rule if and when it goes into effect… as they’ve already done (with a great deal of success) with the ATF’s rules on bump stocks, pistol stabilizing braces, and unfinished frames and receivers. 

Check out the entire conversation with Cody Wisniewski in the video window below, and if you want to join FPC’s grassroots army of Second Amendment activists who are supporting the legal efforts to claw back the rights we’ve lost and protect the ones we still have, you can do so here

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