Gun Trade World - November 2023

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ATF FFL DEFINITION EXPANSION ISN’T JUST UNCONSTITUTIONAL – IT’S UNFEASIBLE The Biden administration is forcing the federal agency charged with overseeing the strictly regulated firearm industry to tighten a vice grip on private gun owners, claiming if they privately sell guns and offer to sell more, they’re “engaged in the business.” By Larry Keane This is just the latest salvo from President Joe Biden, who declared from the debate stage in 2019 that the firearm industry is “the enemy.” Now, as the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is snuffing out firearm retailers at a record pace due to an unrelenting attack of historically high firearm license revocations under the guise of its “zerotolerance” policy, the administration has unilaterally proposed an expansion of the definition of who is required to obtain a dealer’s license and therefore run a National Instant Criminal Background Check System (NICS) verification to transfer a firearm. Recall, failing to obtain a dealer’s license when required by law is a crime. This latest gambit does more than exceed the ATF’s statutory authority. It’s an unfeasible requirement. There is no way ATF could keep up with another 328,000 federal firearm licensees. President Joe Biden continues to barrel around Congress to generate unconstitutional laws when Congress stands against him trampling on citizens’ rights. That’s after conceding he’s powerless to do anything without Congressional action. Unilaterally Making Law and Criminals U.S. Attorney General Merrick Garland announced the proposed rule that would redefine who qualifies as “engaged in the business” and would require a federal firearms license (FFL) and run a NICS background check when selling or transferring a gun, as well as to maintain all the required records and paperwork. This is a thinly-veiled attempt to create a universal background check scheme – which even the Department of Justice (DOJ) has admitted would necessitate a federal firearm registry to work. That’s forbidden by federal law. The irony is, Congress clarified the “engaged in the business” definition in the Bipartisan Safer Communities Act (BSCA). Congress made a one-word change to the “engaged in the business” definition by removing the word “livelihood” the courts had effectively read out of the statute. The law still defines a firearm dealer as, “a person who devotes time, attention and labour to dealing in firearms as a regular course of trade or business to predominantly earn 34 www.guntradeworld.com
ack the administration. “This language is tailored towards individuals regularly selling guns to strangers with the predominant motive of making money through a side business, like the person who sold the Midland shooter his weapon, and it is drafted in such a way that prosecutors will need to prove specific intent on the part of the unlicensed seller,” said officials at U.S. Sen. John Cornyn’s (R-Texas) office. “The Biden admin should expect for this rule to be struck down because it is unconstitutional.” Sen. Joni Ernst’s (R-Iowa) staff said any efforts to move beyond the previous boundaries for licensing would go against Congress’s intent. “President Biden is twisting the law to fit his liberal gun-grabbing agenda,” the senator’s staff told media. “His administration’s latest attack on lawful gun owners clearly oversteps both the intent and the text of the law, at the expense of the average gun seller. Senator Ernst has repeatedly defended FFL holders and will continue to stand up against the Biden administration’s attack on Second Amendment rights.” nssf 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 personal collection of firearms.” There wasn’t a need for the administration to publish 108 pages to clarify a definition that was just updated unless the administration is attempting to snatch away Second Amendment rights from Congress and “The People.” Yet, the Biden administration is overreaching, claiming they have orders from Congress when they clearly don’t. “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,” AG Garland said. The proposed rule, subject to public comment and final approval, would require any individual selling firearms online or at gun shows to be licensed and run background checks before completing the transaction, according to Fox News. The Associated Press reported that ATF estimates the proposed rule sweeps up as many as 328,000 private citizens. Congressional Brushback In a move not unique to this administration, the Biden administration’s legal contortions of the BSCA have gone over like a lead balloon. The proposal strains under its own weight and Congress is brushing Focus on Criminals The unilateral expansion of the firearm dealer definition is unconstitutional and a violation of the Administrative Procedures Act (APA) that will be struck down by the courts. It is also a misallocation of valuable resources and time that should be devoted to going after criminals who wilfully break the law. ATF enforcement efforts shouldn’t be used to track down a firearm hobbyist who sells an occasional firearm or an uncle who gifts a cherished hunting rifle to his niece. <strong>Gun</strong>smithing and building firearms at home, of course, have been common hobbyist activities since before the country was founded. Expanding the dealer definition means ATF would now be charged with monitoring and requiring registration of up to 328,000 Americans it now deems as “firearm dealers” even though they only make occasional firearm sales, exchanges or purchases for the enhancement of a personal collection or a hobby, or who sells all or part of a personal firearm collection. Congress did not change the requirement that to be a “dealer,” a person must devote time, attention, and labour 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. www.nssf.org www.guntradeworld.com 35
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Gun Trade World - November 2023

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