President Joe Biden has unveiled a plan aimed at broadening federal regulations on the sale of used firearms. The Justice Department submitted a new blueprint today to define more clearly who must secure a federal firearms license for legal secondary market transactions. This new framework would redefine who is required to obtain a federal firearms license to sell guns legally. This license mandates that a dealer run background checks on buyers, among other things.

The proposal represents the latest effort by the Biden Administration to strengthen gun control via administrative rules. With the exception of the Bipartisan Safer Communities Act, Biden has not had Congressional support for his gun control agenda. So the President has sought to enact changes through federal rulemaking by the Department of Justice (DOJ) and the Bureau of Alcohol Tobacco and Firearms (ATF).

The White House outlined that under the suggested guidelines, individuals would be expected to obtain a federal license and conduct background checks if they meet one or more of several conditions. These include frequently selling firearms shortly after purchasing them, offering guns in near-new condition, selling multiple units of the same gun model, or selling business inventory as a previously federally-licensed dealer without transferring it to a personal collection for at least one year, effectively targeting the so-called fire sale loophole. The proposed rules would establish criteria around the frequency and type of gun sales by unlicensed sellers, along with the condition of the firearms.   Here’s what we’ve been able to decipher from the proposed rule.

• Frequency of Sales: Unlicensed sellers will have limitations on how frequently they can offer guns for sale.
• Condition of Firearm: The rule would mandate the condition a firearm has to be in for the seller to be required to get a license.
• Penalties: Violating these regulations could lead to severe fines and imprisonment.

The White House outlines criteria that would automatically make someone presumed to require a federal firearms license. These include:

1. Offering any number of firearms for sale while signaling the ability to sell additional firearms.
2. Frequently offering for sale firearms bought within the last 30 days.
3. Selling firearms that are ‘like new’ and in their original packaging.
4. Selling multiple firearms of the same make and model.
5. As a former federally-licensed firearms dealer, selling firearms that were in business inventory and not transferred to a personal collection at least a year before the sale.

The Administration is targeting anyone that appears to be marketing firearms for sale.  This includes:

• Creating a website or making business cards to advertise or market a firearms business;
• Maintaining records to document and track profits and losses from firearms purchases or sales; or
• Purchasing business insurance or renting space at a gun show.

This new administrative rule seeks to take advantage of a change in last year’s Bipartisan Safer Communities Act. The Act altered the criteria for those considered to be “engaged in the business” of dealing firearms, making it easier to require federal licensing. Attorney General Merrick Garland stated that the new rule is designed to enact the Congressional intent to broaden background checks, which aim to prevent firearms from reaching dangerous hands.

“This proposed rule implements Congress’s mandate to expand the definition of who must obtain a license and conduct a background check before selling firearms.”

That seems to be a stretch.  If true, why didn’t Congress just change the language in the Bipartisan Safer Communities Act?  As of this afternoon, the rule had not been published in the Federal Register for public comment.

Should the proposal be successfully implemented, it could substantially increase the number of people needing a federal license to sell used firearms. However, it stops short of mandating federal licensing for every individual selling a used gun.

The ATF (part of the Department of Justice) released the text of the proposed rule, which is subject to 90 days of public comment.  We will update this story with a link when public comments are open.

** UPDATE ** The National Shooting Sports Foundation (NSSF) has weighed in.  Bearing Arms spoke with Mark Oliva, Managing Director Of Public Affairs who shared this, “NSSF is closely examining the proposal from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Based on a cursory review, this proposal presents significant concerns. It appears that this proposed rule would exceed the statutory definition passed by Congress in the Bipartisan Safer Communities Act (BSCA). It would also sweep in ordinary citizens to now require them to obtain a federal firearms license. That’s not what the statute provided, or Congress intended. The proposal was drafted without input from NSSF, the trade association representing the firearm industry. NSSF will study the proposal and provide comments to the Federal Register at the appropriate time.”