Never trust the good graces of a federal bureaucrat.
That is the message at the heart of Mountain States Legal Foundation’s most recent regulatory comment, filed against a newly-proposed regulation by the Bureau of Alcohol, Tobacco, Firearms and Explosive (ATF). Specifically, the proposed regulation attempts to eliminate essentially all private transactions on guns.
In 2022, Congress passed the Bipartisan Safer Communities Act, a so-called compromise piece of legislation aimed at “doing something” about guns after the failed police response in Uvalde, Texas. Though the statute is flawed in many ways, one particularly vague aspect is whether someone is subject to heightened regulation due to their status as “engaged in the business” of selling firearms. Now, the ATF is trying to expand its own jurisdiction by broadly defining that phrase to sweep in a host of people who were not covered by prior regulations. In other words, they are attempting to expand who needs a federal firearms license (FFL).
Past Definition of Firearms Dealer
Since the 1980s, when Congress passed the Firearm Owners Protection Act, which was aimed at stopping the harassment of FFLs by the ATF, there has been no set understanding of what a firearms dealer is. But that vacuum just means the ATF and the courts stepped in. After a series of ad hoc applications, court rulings, and proceedings, the ATF initially used the following factors to determine whether an entity was a firearms dealer:
- Quantity and frequency of sales
- Location of the sales
- Conditions under which the sales occurred
- The seller’s behavior before, during, and after the sales
- Price charged for the weapons and the characteristics of the firearms sold
- Intent of the seller at the time of the sales
Though still vague, the factors were enough to give the ATF and American citizens a sense of who was and who wasn’t a genuine dealer, and thus who was and who wasn’t required to obtain a federal firearms license. The 2022 statute, though, has potentially upended this stability.
Profit Means What?
Previously, the definition of a firearms dealer was whether or not the sale of firearms was “the principal objective of livelihood and profit” of the seller. The new regulation, however, now defines a firearms dealer as persons who sell firearms “to predominantly earn a profit.” The changes add yet more confusion to an already complicated system. If this new “predominantly profit factor” is simply a seventh item to add to the currently existing list, then there is less to worry about. However, our expert attorneys are skeptical that that’s what is happening. And you never want to be in the position of trusting the government to define its own regulatory authority.
In the worst case scenario, the proposed regulation, if finalized by the ATF, would potentially lead to labelling millions of Americans as “firearms dealers” operating without a license—a felony under the current federal statutes.
“Let’s say I inherited some guns from my grandfather,” theorized Sean Nation, deputy general counsel at Mountain States. “Among them are classics like a Second World War M1 Garand. That’s a collectible, but not something I want to keep. So, I ask my friends around, a buddy says he wants to buy it, and I sell it to him.
“Did I just make a profit that the ATF uses to identify an FFL-required business? I don’t have a shop, I don’t do this regularly, but I did ‘market’ the gun, and now I do have a ‘profit.’ But I don’t have a license, so am I a felon now?”
National Registry Workaround
Although the ATF claims they are merely trying to update the regulations as mere administrative upkeep, we here at Mountain States don’t much trust bureaucrats who have tried numerous ways to limit your constitutional rights. Indeed, it has been a long-standing goal of gun-control diehards to create a colossal and unconstitutional national registry of every single exchange of anything revolving around guns. We’re not just talking about firearms dealing businesses. We’re talking about lending your hunting rifle to your son, selling a magazine to a neighbor, or even 3D-printing a new grip for your own gun.
If this profit-based new proposed regulation from the ATF goes into effect it would pressure average Americans to either pursue expensive federal firearms licenses and make their sales records available to government agents or abandon their mundane and peaceable transactions. In either context, the invasion of the ATF into the lives of American citizens is unacceptable.
We noted as much in our comment. And we also noted that if the regulation becomes final in the future MSLF’s Center to Keep & Bear Arms looks forward to evaluating a challenge to that new regulation.
For now, the ATF must review over 380,000 other comments (many of which are form-letters orchestrated by anti-gun groups), consider their input, and decide whether to issue a final review or abandon their nonsense. We’ll keep an eye out for you and let you know what happens next.
