September 01, 2023
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Crediting last year’s poorly-thought-out Bipartisan Safer Communities Act (BSCA), the U.S. Department of Justice on Thursday announced its highly anticipated new proposed rule that seems to leave enough up to ATF interpretation that just about any American selling a firearm could be considered a “gun dealer.”
In announcing the new rule, Steve Dettelbach, head of the Bureau of Alcohol, Tobacco, Firearms and Explosives, blamed those Americans lawfully selling firearms in private sales—something that has been legal since before our nation was founded—for the necessity of yet another gross overreach by the Biden Administration.
“An increasing number of individuals engaged in the business of selling firearms for profit have chosen not to register as federal firearms licensees, as required by law,” Dettelbach said. “This new proposed rule would clarify the circumstances in which a person is ‘engaged in the business’ of dealing in firearms, and thus required to obtain a license and follow the laws Congress has established for firearms dealers.”
Taken to its furthest extent, it seems that the 108-page rule leaves just enough up for ATF interpretation—likely not an accident—that it could cover just about anyone selling any firearm anywhere in the nation. The rule lists four pages of circumstances by which a person would be considered to be “engaged in the business,” the first of which simply is, “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.”
The proposed rule then states: “Any one or a combination of the circumstances above gives rise to a presumption in civil and administrative proceedings that the person is engaged in the business of dealing in firearms and must be licensed under the GCA.”
Incredibly, that aforementioned circumstance is further explained later in the rule to make it clear that it will be illegal to even offer for sale a firearm without a license.
“The first presumption stated above … does not require that a firearm actually to be sold by a person,” the rule states.
Not leaving anything to chance, the rule next declares that other activities can also be used to determine if someone is “engaged in the business,” but doesn’t go to the trouble to say what those actions might be.
“The activities set forth in these rebuttable presumptions are not exhaustive of the conduct that may show that, or be considered in determining whether, a person is engaged in the business of dealing in firearms,” the rule states.
Of course, it would have been easy for ATF to simply specify that anyone who sells more than “x” number of guns in a year, or in a month, would be considered to be “engaged in the business.” But that would have been far too easy to understand and certainly not taken 108 pages to explain.
“The Department has considered, but not proposed in the NPRM, an alternative that would have set a minimum numerical threshold of firearms sold by a person within a certain period of time,” the rule states. “That approach has not been proposed for several reasons. First, while selling large numbers of firearms or engaging or offering to engage in frequent transactions may be highly indicative of business activity, neither the courts nor the Department has recognized a set minimum number of firearms purchased or resold that triggers the licensing requirement.”
In truth, that approach, while still likely unconstitutional, would have been much too easy for gun owners to understand, making it more difficult for ATF to entrap those trying to sell a few guns and stay legal in a net of legalese gibberish later on. Pro-freedom groups, including Gun Owners of America, were quick to lash out at the ATF and Justice Department over the proposed new rule.
“First, they said five guns, but now, anyone who sells a single firearm in a given year and makes even a penny of profit will be subject to dealer requirements, including a background check,” GOA senior vice president, said in a statement following the announcement. “People need to realize this is just the next step in the anti-gunners’ longform playbook to enact backdoor universal registration of firearms, and eventually, to confiscate all firearms. They will not stop until that day.”
Of course, representatives of various gun-ban groups were pleased that President Joe Biden and his lapdog agencies continued their push to quash the Second Amendment rights of lawful American gun owners.
“Clarifying the definition of ‘engaged in the business’ of selling firearms has been needed for decades,” Kim Brown, director of the gun-ban group Brady, said. “A clear definition will ensure that individuals selling firearms for profit will have to conduct background checks, getting us closer to universal background checks.”
In the end, the fact that the Biden Administration took 108 pages to define who is “engaged in the business” of selling firearms highlights just how inept this administration is. And it’s likely average American gun owners will be prosecuted and persecuted under the poorly written proposal. The proposed rule will now be open for public comment for 90 days.
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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