Judge partially blocks ATF rule that requires all gun sellers to obtain a dealer’s license

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Another federal court finds that an unelected, rogue bureaucracy has gone outside of its constitutional role in a blatant attempt to rewrite federal law.

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A district judge has partially blocked a new rule by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that would require anyone who sells a gun to become a licensed seller with ATF and conduct background checks.

This took place even as members of Congress are seeking to pass a resolution that would stop the new rule from going into effect.

Under the Gun Control Act of 1968, which ATF has the authority to enforce, it is illegal for a non-licensed firearms dealer to sell firearms. A dealer must apply to ATF and, if approved as a dealer, must conduct background checks on potential buyers. Operating without a license can result in a penalty of five years in prison and a $250,000 fine.

The Firearms Owners’ Protection Act of 1986, however, specified that a person “engaged in the business” was defined as “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”

That definition was altered slightly in the Bipartisan Safer Communities Act (BSCA), signed by President Joe Biden in 2022. The new law changed the requirement to be considered a dealer from their selling firearms as their “principal objective of livelihood” to being a means to “predominantly earn a profit.” However, the BSCA retained exclusions for “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.”

In contradiction to the text of the law, the ATF on April 19 promulgated a final rule that requires any person that even offers to engage in a single transaction involving a firearm to obtain a license.

The new rule was challenged in court by the states of Texas, Louisiana, Mississippi, and Utah; a number of gun organizations; and an individual citizen.

The suit was brought in Texas, and on Sunday, the day before the rule was slated to go into effect, District Judge Matthew Kacsmaryk issued a temporary injunction ruling that the plaintiffs were substantially likely to succeed on the merits of the case.

Kacsmaryk found that the new rule likely violates the Administrative Procedures Act (APA), which requires that government agencies must have explicit congressional authority for their actions. He also wrote that the rule clearly violates the BSCA, which ATF used as its justification for the rule.

While the rule says that even a single offer to sell a firearm may be enough to require a license, the BSCA says that only a person who “devotes time, attention, and labor 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” needs a license.

Kacsmaryk pointed out that the BSCA explicitly excludes “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.”

He also argued that the ATF rule says no actual profit is required for a person to be considered a dealer, while the BSCA implies that proof of profit is not required only in criminal cases or terrorism.

Kacsmaryk ruled that it was unnecessary at this time to analyze the plaintiff’s other claims because the ATF rule blatantly violated the APA.

The injunction only applies to Texas, the gun organizations, and the individual as the judge ruled that Louisiana, Utah, and Mississippi did not have standing to join the lawsuit in Texas.

Meanwhile 45 Congressional Republicans have proposed a resolution to overturn the rule.

Sen. John Cornyn, R-Texas, leads the resolution with Sen. Thom Tillis, R-N.C.

Cornyn issued a press release, saying,

“This rule is proof that the Biden administration is a dishonest broker, and Congress must hold it accountable for its actions in favor of its gun-grabbing liberal base over the Constitutional rights of law-abiding Americans. We will fight this lawless rule tooth and nail to ensure the God-given right to keep and bear arms is preserved and this flagrant distortion of congressional intent of our landmark mental health and school safety law is struck down.”

Time and again, federal agencies overstep their congressionally granted authority and then cynically wait and see if the courts will strike down their actions. This new rule very obviously violates the BSCA.

Sadly, depending on which court district they live under and how quickly they act, many Americans could face the wrath of the federal government “for conduct deemed lawful just yesterday,” as Kacsmaryk wrote.

While the ATF rule is, in fact, a restriction of Second Amendment freedoms and a disrespect for the law, the larger point is the ongoing rogue nature of federal agencies. The American people are not to be governed by unelected, unaccountable bureaucrats.

Hopefully, this rule will be further blocked as lawsuits proceed, sending a message to federal agencies that they must respect the Constitution. Unfortunately, whether federal agencies will actually get the message is another question altogether.

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