Imagine this: you get an unexpected knock on your door. You are then subjected to an unwarranted and intrusive inspection of your home by federal agents, and you live with the threat of potential criminal prosecution from the government hanging over you. Why? Because your hobby is collecting firearms, and the Bureau of Alcohol Tobacco, Firearms and Explosives (ATF) deems it dangerous, under their regulatory authority.
Arguably, one of the longest-standing traditions in America is the private sale and purchase of firearms. But in 2024, the ATF under the Biden-Harris Administration has ended this tradition with a new “Final Rule,” which redefined what it meant to be “engaged in the business” as a firearms dealer. Now, whether you are a firearm hobbyist collecting unique or antique firearms or an individual selling a single firearm, the ATF considers you a “Dealer in Firearms,” and requires you to obtain a Federal Firearms License (FFL). Becoming an FFL is a rigorous two-month process that includes fees, forms, interviews and inspections, after which the ATF will decide whether to accept or deny your application.
Case Background
In 1938, Congress passed the Federal Firearms Act, requiring firearms dealers to have federal licenses. Congress clearly defined what it meant to “be engaged in the business” of dealing firearms— specifically excluding the occasional sale or purchase of firearms for personal collection or hobby. Congress limited its definition to those who repeatedly purchased and sold firearms as a business or for their livelihood. Even after the Gun Control Act of 1968, and later the Firearms Owners Protection Act, the definition of “engaged in the business” remained largely unchanged. That is, until the Bipartisan Safer Communities Act of 2022 (BSCA) slightly changed the definition of “dealer.” The BSCA replaced the phrase “with the principal objective of livelihood and profit” with the language “to predominantly earn a profit.” The only difference between the original definition and the BSCA’s was the omission of the word “livelihood.” The ATF used this slight change as justification to drastically expand its own authority and the definition of “engaged in the business.”
We would like to introduce you to Allen Black, a firearm enthusiast from Wichita, Kansas. Mr. Black loves collecting unique and antique firearms, often attending gun shows to add to his collection. Like any collector, he occasionally sells a few firearms at these gun shows. Now, meet Donald Maxey, a firearm collector who frequents gun shows to enhance his collection. Just like Mr. Black, Mr. Maxey buys and sells firearms a few times a year. But here’s the catch: Under the ATF’s new Final Rule, as individuals both Black and Maxey need FFL licenses and must adhere to federal firearms regulations written for businesses. This rule significantly impacts collectors like Black and Maxey, forcing them to navigate complex regulations and obtain licenses for their hobby.
Mr. Black and Mr. Maxey are both members of the Chisholm Trail Antique Gun Association, which Mountain States also represents. Chisholm Trail is a non-profit founded in 1957 in Wichita, Kansas. Their mission is to preserve the craftsmanship and history surrounding the arms of our forefathers so that future generations can enjoy and experience them. They serve the interests of collectors and shooters of antique and antique-replica firearms. Chisolm Trail sponsors and puts on a biannual gun show and relies on the proceeds from that gun show to fund its activities. Chisholm Trail is not currently an FFL, but under the ATF’s new regulations, it must become one to continue its gun shows. The fees involved in applying for and maintaining an FFL would take most of the revenue the Association makes on the shows, leaving it little to use for its operations, not to mention the regulatory burdens of being an FFL.
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In May of 2024, in a monumental legal effort, Mountain States Legal Foundation joined forces with the Attorneys General of 21 states to sue the ATF and the DOJ because:
- The rule is a completely unreasonable burden on an individual’s right to keep and bear arms with no analog in history to justify the ATF’s actions. (see NYSRPA v. Bruen for more on this)
- The ATF, an executive branch agency, has yet again unilaterally expanded its own power far past what Congress authorized in law. And as we are all taught in our high school Civics class: Congress writes the law, the Executive Branch may only enforce what Congress has written.
What’s At Stake?
The ATF’s new definition of a “firearms dealer” goes far beyond what Congress wrote or intended in the BSCA. In fact, it is in direct defiance of Congress. It appears to include anyone who sells or transfers firearms, even if it is just a one-time transaction. Practically speaking, this means that whether the sale is a one-time sale of a gun from father to son for $1, or Beretta selling millions of guns a year, the ATF has expanded its authority to regulate all sellers. If our hypothetical father doesn’t have an FFL or fails to do a background check on his son, he could face civil fines and even criminal prosecution.
Additionally, every FFL is required to allow “compliance inspections,” which are warrantless searches of the place of business by the ATF. But our hypothetical father conducts his “business” at home. So, by following the ATFs new rule, he must grant the ATF permission to search his home without a warrant and with no notice.
So much for the 4th Amendment!
Congress granted the ATF permission to perform no-notice, no-warrant searches of businesses to ensure FFLs meet all federal firearms regulations and track firearm sales properly. Congress never intended the same authority to be applied to individuals and their homes.
If this rule is allowed to stand, Americans will be subjected to the whims of the ATF whenever it decides to redefine terms and expand its authority. The ATF has assumed Congress’s power by expanding the definition of a “firearms dealer” beyond what Congress intended, all while violating the Second Amendment. Individuals like Allen Black and Donald Maxey will face the tremendous burden of being forced to become FFLs, and to comply with all federal firearm regulations, just to sell a few guns a year. Organizations such as Chisholm Trail, that create a fun and educational community for their members, will have to endure the fees and regulatory burdens of being an FFL just to run their organization.
No peaceable American citizen should have to live with the fear of the ATF entering their home at any time simply because they decided to sell a single firearm, or because they are a collector. The ATF needs to operate within the bounds of the separation of powers and cannot just decide to give themselves more power.
Case Timeline
- May 1, 2024: Mountain States, along with 21 other states, files a lawsuit in the Eastern District of Arkansas against Merrick Garland and the ATF, challenging the ATF’s Final Rule regarding “engaged in the business.”
- May 6, 2024: Mountain States files a Motion for Preliminary Injunction to stop the implementation of the Final Rule.
- May 17, 2024: A hearing on the Plaintiff’s Motion for Preliminary Injunction is held in federal court in Little Rock, Arkansas.
- May 23, 2024: After dismissing the State of Arkansas from the case, the federal judge in the Eastern District of Arkansas issues an order transferring the case to the District of Kansas. The case will now proceed in federal court in Kansas, not Arkansas.
- July 1, 2024: A second Preliminary Injunction hearing is held in federal district court in Kansas City, Kansas.
- July 10, 2024: District court judge denies the Plaintiff’ Motion for Preliminary Injunction.
- July 19, 2024: Plaintiffs appeal the district court’s denial of the Preliminary Injunction to the 10th Circuit. That same day, Plaintiffs also file a Motion for Injunction Pending Appeal in district court.
- July 22, 2024: District court denies Plaintiffs’ Motion for Injunction Pending Appeal.
- July 24, 2024: Plaintiffs/Appellants file a Motion for Injunction Pending Appeal at the 10th Circuit.
- July 29, 2024: Defendants file a Motion to Dismiss for Lack of Jurisdiction in the district court.
- September 19, 2024: Plaintiffs/Appellants file their Opening Brief at the 10th Circuit.
- October 28, 2024: The 10th Circuit denies Plaintiffs’ Motion for Injunction Pending Appeal.
- February 7,2025: President Trump issues Executive Order No. 14206 (Protecting Second Amendment Rights) directing the Attorney General to review all “[r]ules promulgated by the Department of Justice, by [ATF], from January 2021 through January 2025, pertaining to firearms and/or federal firearms licensees.”
- February 18, 2025: Defendants file a Motion to Remove Case from the Oral Argument Calendar and Place in Abeyance (temporarily suspend proceedings) at the 10th Circuit to ensure sufficient time for the DOJ and ATF to conduct the required review of Biden era rules.
- February 20, 2025: The 10th Circuit grants Defendants’ motion to temporarily suspend the appellate proceedings (the abeyance remains in place as of the present date).
- February 20, 2025: Defendants file a Motion to Stay the case in the district court to ensure sufficient time for the DOJ and ATF to conduct the required review of Biden era rules.
- February 28, 2025: The district court grants stay of case (the stay remains in place as of the present date).
