Cekada Explains ATF's Appeal of 'Engaged in the Business' Rule Decision

Of the many sins of the Biden administration era — including the fact that Biden couldn't actually run a pencil sharpener, much less a country — was the "engaged in the business of" rule. The way it was worded opened up a lot of possibilities, none of them were good. It was nebulous enough that many people might decide they needed to go through an FFL holder to conduct what should be a private sale.

Which was the point.

Now, the kinder, friendlier ATF is somehow defending the law. Unlike in the past, though, this ATF director is willing to tell the gun world why he's doing it.

Desiring to understand the specifics about the “keep what works” philosophy, we sought comment from the ATF director, who referenced the new May 6 proposed rule entitled “Revising Regulations Defining ‘Engaged in the Business’ as a Dealer in Firearms.” Although the comment period ended on August 4, Director Cekada stated that “ATF is reviewing public comments before determining the final rule’s content.”

Indeed, the new rule acknowledges issues with the original, stating, “On further review, ATF agrees that the EIB rule is replete with procedural and substantive problems.”

Director Cekada’s comments to News2A mirrored that sentiment:

Our proposal removes the Biden administration’s added presumptions and regulatory overreach, replacing them with the definition Congress enacted. The government should carry the burden of proving that someone is unlawfully engaged in the business.

The provisions we proposed keeping provide practical clarity: definitions of “purchase” and “sale,” guidance for licensees winding down their businesses, and codifying the longstanding guidance for auctioneers who assist with estate sales. These provisions help people understand their obligations and conduct lawful business.

...

Clarifying other changes in the new rule, Cekada went on to add:

We also scrutinized the provisions we proposed retaining and proposed changes where the prior administration went too far. For example, we proposed removing restrictions that effectively treated former business inventory as permanently commercial, even when a former licensee later makes an occasional private sale. We also proposed removing the exclusion of firearms held for personal protection from the definition of a personal collection.

In the most optimistic outcome, the ATF could have decided not to challenge the decision, but it is arguing that the district court’s reading prevents the agency from policing unlicensed dealers. On the other hand, there is no history or tradition in our nation dating to the founding era requiring government-approved licensing to sell a firearm.

That's a fair point, and it's something that might well work against the ATF.

However, I suspect that we'll get a court ruling somewhere along the way clarifying that yes, the ATF can enforce the law against unlicensed dealers, but that the framework of "engaged in the business" must revert to how Congress defined it, not how the Biden administration defined it.

I'd like to see it go otherwise, but I doubt it.

Cekada is more pro-gun than any ATF director I've ever seen, but he's still a product of the ATF. He might not want to interfere with law-abiding citizens doing law-abiding things, but he's not necessarily going to do something that might justify cutting the ATF's budget. Not enforcing the current law would probably result in that. After all, if they can't prosecute unlicensed dealers, then they don't need as much personnel to accomplish the crimes they can enforce.

I'm not saying I agree with it, only that it makes a certain degree of sense from Cekada's perspective.

If this is continuing up the judicial chain, though, we may well find that my prediction is overly pessimistic and that ultimately, it'll be the court's decision, not Cekada's.

This is one of those "wait and see" moments that I'm eager to watch.

Editor’s Note: The radical Left will stop at nothing to enact their extreme gun control agenda and strip us of our Second Amendment rights.

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