September 12, 2023
While the U.S. Justice Department’s new rule redefining who is “engaged in the business” of selling firearms is almost certainly unconstitutional and is an overstep by bureaucrats who seemingly don’t care about the legislative process, some provisions in the rule unrelated to the Second Amendment might be even more problematic. As we told you a few days after the rule was announced, it leaves just enough up for ATF interpretation that it could cover just about anyone selling any firearm anywhere.
In fact, the first circumstance listed by which a person would be considered to be “engaged in the business” simply states, “sells or offers for sale firearms, and also represents to potential buyers or otherwise demonstrates a willingness and ability to purchase and sell additional firearms.” Defining that statement further, the rule states: “The first presumption stated above … does not require that a firearm actually be sold by a person.” (Emphasis added.) Things get even messier when you dig down a little further in the expansive piece of gibberish. The explanation of the rule, provided by the DOJ, repeatedly mentions the phrases “for the purpose of resale” and “with the predominant intent to earn a profit.” To attorney Johanna Reeves of Reeves and Dola, LLP., such criteria could create major problems.
“This might actually be bigger than the Second Amendment because it may go to the heart of the federal government proposing to control individuals based on activity that hasn't happened yet because of this speculative idea of ‘for the purpose of resale,’” Reeves said in an exclusive interview with Firearms News. “Who is going to decide if there's a purpose for resale or not? It's going to be the government, of course. It’s entirely speculative. The government has to get inside someone’s head.
“How can you have a dealer before they sell anything?”
Because of such vagueness, Reeves believes that this rule, like the Biden Administration’s Final Rule on frames and receivers, is another example of the government simply going too far.
“Looking at the actual regulation language—not all the puffery in the explanation section—I’d say it’s a gross overreach by the Biden Administration,” Reeves said. “When you’re looking at something like intent, that starts getting very troublesome because it’s the government that is interpreting intent.
“How do you prove a negative? Say, ‘No, I did not have an intent to resale?’ ‘Prove it.’”
Interestingly, the lengthy rule—108 pages long in the PDF posted on the ATF website—is mostly explanations of the rule that at first glance seem to be published to create further confusion and uncertainty by anyone wishing to sell a firearm.
“It absolutely flummoxes me why a federal agency should have to take up so much space to justify something that they claim is validated under the law,” Reeves said. “Why do you have to work so hard to justify it?”
Of course, as Reeves explained, there is a good reason for all the justification, since it’s likely many pro-gun groups were already planning litigation before the rule was ever formally announced.
“The first lawsuit will be filed on day 91,” Reeves said, referring to the first day after the 90-day comment period. “The explanation is important because it gives you insight into what the agency is thinking. They know lawsuits will be filed on the proposed rulemaking. That’s always why they write this the way they do—DOJ trying to lay the groundwork for the courtroom.”
Aside from the “intent angle,” some pro-gun groups are convinced the new rule is a violation of the Second Amendment and the Administrative Procedures Act. And Gun Owners of America (GOA) is not only opposed to the rule but calling on Congress to defund it.
“It’s just as egregious as we’ve come to expect from a rogue executive branch that flat out hates gun owners and the Constitution,” Erich Pratt, GOA senior vice president, said in an alert to members. “Congress can’t sit idly by while rogue ATF bureaucrats usurp their legislative power. That’s why we need you to call on them to defund this rule during the appropriations process and use the Congressional Review Act to repeal it as soon as possible.”
About the Author
Freelance writer and editor Mark Chesnut is the owner/editorial director at Red Setter Communications LLC. An avid hunter, shooter and political observer, he has been covering Second Amendment issues and politics on a near-daily basis for nearly 25 years.
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