Are Cornyn's Objections to ATF Rule on Gun Sales Too Little, Too Late?

AP Photo/Carolyn Kaster

A spokesman for Texas Senator John Cornyn has decribed the ATF's new rule re-defining who is "engaged in the business" of dealing firearms as "lawless and unconstitutional", and says the senator, along with fellow Republican Sen. Thom Tillis of North Carolina, plan on introducing a Congressional Review Act resolution to block the new regulations from taking effect. 

Unfortunately for gun owners, the odds of the resolution getting majority support in both the House and Senate is pretty slim. And unfortunately for Cornyn and Tillis, no matter how much they object to the new rule now, they helped to craft the legislation that the ATF is using as its vehicle to rewrite the rules on private gun sales. 

“The Bipartisan Safer Communities Act enhanced background checks and closed loopholes, including by redefining when a person is ‘engaged in the business’ of dealing in firearms," Deputy Attorney General Lisa Monaco touted while announcing the new rule. And who were the primary Republican architects of the BSCA? Cornyn and Tillis, who were both insistent that the new law posed no threat to lawful gun owners. 

“I am proud of my work to advance commonsense, bipartisan legislation that improves mental health care, strengthens school safety, and saves lives while protecting the Second Amendment rights of law-abiding North Carolinians,” said Senator Tillis. “I am grateful for the work of my colleagues Senators Cornyn, Murphy, and Sinema to find common ground and produce solutions, and I look forward to seeing the Bipartisan Safer Communities Act signed into law soon.”

In his statement of support after BSCA was signed into law, Cornyn touted the bill's "clarification of the definition of Federally Licensed Firearms Dealer", which he said "cracks down on criminals who illegally evade licensing requirements." Instead, the bill's so-called clarification, which defines a gun dealer as someone "who devotes 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", is now being interpreted by the ATF to encompass someone who might only offer a single firearm for sale. In fact, the sale doesn't even need to be completed for the agency to determine that the gun owner is actually a dealer who should have an FFL. 

The ATF's definition of "predominantly earns a profit" is equally problematic. 

A person shall be presumed to have the intent to predominantly earn a profit from the sale or disposition of firearms in civil and administrative proceedings, absent reliable evidence to the contrary, when the person—(i) Advertises, markets, or otherwise promotes a firearms business (e.g.,advertises or posts firearms for sale, including on any website, establishes awebsite for offering their firearms for sale, makes available business cards, or tagsfirearms with sales prices), regardless of whether the person incurs expenses or only promotes the business informally; (ii) Purchases, rents, or otherwise secures or sets aside permanent ortemporary physical space to display or store firearms they offer for sale, including part or all of a business premises, table or space at a gun show, or display case; (iii) Makes or maintains records, in any form, to document, track, orcalculate profits and losses from firearms purchases and sales;

As the National Shooting Sports Foundation noted in their public letter of opposition to the proposed rule, that definition leaves out some very important language found in the federal statute: “a regular course of trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms.” 

If the statute speaks of repeatedly buying and reselling firearms but the ATF says merely offering a single gun for sale qualifies, there's a huge disconnect. And to Cornyn's credit, this isn't the first time that he's objected to the ATF's proposal. Last year he and Tillis sent a letter to the agency when the proposed rule was first announced, warning that the ATF was overstepping its authority.

Section 12002 made only a very tailored change to the language of the Gun Control Act with regard to “engaged in the business.” It modified the definition of “engaged in the business . . . as applied to a dealer in firearms” by striking the phrase “with the principal objective of livelihood and profit,” and replacing it with “to predominantly earn a profit.” We left the majority of the statute intact. As amended, the statute now defines a person engaged in the business as a dealer in firearms as: 

a person who devotes 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, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his collection of firearms

This was an incremental update. We merely struck the “livelihood” language from the statute. This was done to prevent someone who should register as a firearms dealer from evading licensing requirements because he or she had another job that supported his livelihood. In otherwords, we wanted to clarify that if a person has a job and also operates a firearms business, he or she must still register as a firearms dealer.

Cornyn and Tillis may have thought they were operating in good faith when the accepted that "incremental update", but why on earth would they have expected the Biden administration to do the same? By the time the BSCA was signed into law in June, 2022 the ATF had already announced its rule re-defining "frames and receivers" to include items that could become frames and receivers with some work; once again bypassing Congress and attempting to enact a new law under the guise of a regulation. Republicans who supported BSCA should have at least been aware of the abuses of authority that were already underway in Biden's ATF and treated any change to the definition of who is "engaged in the business" with caution and skepticism. 

I wish Cornyn, Tillis, and their colleagues the best in trying to undo the ATF's new rule via the Congressional Review Act, but it would be good of him to acknowledge that a big part of the reason they're doing this now is their work to craft and enact the Bipartisan Safer Communities Act two years ago. There were a lot of Second Amendment supporters who were warning of the hidden dangers in BSCA at the time, but they were brushed off by Cornyn, who labeled them confused or misinformed about the bill. As it turns out, gun owners had good reason to be concerned, and though a politician admitting error is a rare occasion, Cornyn should own up to his mistake as well as trying to undo the damage.