Joe Biden
(AP Photo/Susan Walsh)
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The Biden administration is forcing the federal agency charged with overseeing the strictly-regulated firearm industry to tighten its vice grip on private gun owners, claiming if they privately sell guns and offer to sell more, they’re “engaged in the business.”

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 “zero-tolerance” 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 Laws and Creating 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 already 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 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, 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 disingenuously.

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 back 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.”

Let’s Focus on Actual 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 willfully 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. Gunsmithing 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 didn’t change the requirement that to be a “dealer,” a person must devote 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. The agency’s workload already appears strained enough.

The ATF already conducted 6,609 inspections of federal firearms licensees – starting on Oct. 1. That’s close to 2022’s total of 7,502 for the entire year. More sobering is that license revocations are already at 122. There were 92 for all of FY 2022.

For the actual regulated industry NSSF represents, the drain on ATF resources to implement this proposed rule will grind legitimate commerce to a halt. ATF will be unable to provide necessary customer service to the industry, like processing import permits, forms for making and transferring suppressors and classification determination on new products. The firearm industry will go from zero tolerance to zero lawful, Constitutionally-protected commerce – perhaps an ulterior motive behind the rule.

Ironically, during the Clinton administration, gun control groups, chiefly Handgun Control Inc. (now known as Brady United), complained bitterly that there were too many “kitchen table dealers” and that ATF didn’t have the resources to inspect and license them all. It seems the gun control lobby can’t make up their mind and have done a complete about face on this issue.

President Biden abuses the Constitution and executive authority by wielding ATF like a sledgehammer against law-abiding gun owners turning them into criminals overnight. He’s making and redefining law when Congress explicitly has chosen not to. The proposed rule is clearly an unconstitutional attack on lawful gun ownership.


Larry Keane is SVP for Government and Public Affairs, Assistant Secretary and General Counsel of the National Shooting Sports Foundation.

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  1. The process is the punishment.

    They intend to make the regulations pertaining to buying/selling/owning a gun so onerous that the average person won’t want to subject themselves to the hassle.

    Instead of repealing it, they’ll regulate the 2nd Amendment into irrelevance.

    • Welcome to California.

      When I was in my LGS recently, I saw a LEO buddy of mine there, in the process of purchasing his next personal gat. Mind you, he’s dual-sworn at both the County and Federal level, meaning he is even allowed to bypass TSA and take a loaded personal gun right onto a plane. So…he’s a trusted agent of the government, yes? No? Yes?

      In CA, LE credentials mean next to nothing, and he had to wait the standard 10 day “cooling off period” before taking possession of his new gun. Nevermind he already had a concealed one on his person as well as a Guv-issued select fire weapon in his vehicle parked outside. Because rules, amirite? The Dems in Sacramento certainly know how to apply common sense to everything…

      • Haz, tell your friend I said, “Welcome to my life.” And I’m in Florida. I keep looking for that carve out everyone is always talking about.

        • LEOSA is a thing but not as critical where you are. As to NFA only way to own them up here is with a badge and still going through the stamp process. So it’s a thing just not as much where you are except for being able to carry in gun free zones law enforcement can.

        • On one hand, yes…and I agree with your line of thinking. But I also think that anyone who possesses a “mother may I” permission slip shouldn’t have to go through additional hoops. Two years ago, I had to go through five(!) separate BGCs when a single master one should have sufficed.

          I’m an opponent of BGCs for gun purchases, CCW, etc, but if I’ve passed the Guv’s examination once, why another one at every turn just because it’s a different agency (or department with that same agency)?

        • They are coming after gunpowder, as well, with all kinds of mandatory *yearly individual* reporting requirements :

        • “…why another one at every turn just because it’s a different agency…”

          Because the rules are meant to harass you and everyone like you. This should, at this point, be obvious. It should also be obvious that this isn’t confined to “guns”, it’s endemic in pretty much everything .gov touches.

          You are meant to comply and pay tribute. That is your function according to .gov. Once you understand this most of what they do makes perfect sense.

          Every time you come across something like this, replace the individual in question with a “serf”, the enforcement agency with a Retinue and the enforcement agents with yeomen (or husbandmen depending on the area/time).

          Do this and it mostly makes perfect sense.

          I mean, CA looks set to impose an 11% guns and ammo tax at this point. Apply the same way of thinking. “You owe more grain, serf. MOAR!”

  2. Biden couldn’t care less if it’s ‘unworkable’, as long as he thinks it will help him get re-elected. If it does, then it worked. That’s all this is about, nothing more.

    • The gubermint et all is going after ALL “underground” economy/legitimate businesses. Our antique business is targeted as never before. As a result they get LESS $ as cash sales become the overwhelming rule. How’s the war on drugs going??? How many folks report every penny of income? The same ones who exceed speed limit’s🙄?!?

      • Ah , so that explains the 84,000 IRS agents.
        America is controlled by a foreign country because this certainly isnt the America my father knew.

  3. Brick & mortar gun stores were only too happy in the 90’s to use the ATF as their personal goon squad when it was cracking down on those despised “non-stocking” kitchen table FFLs. NSSF didn’t make a peep about it.

    • “Nov 7th, 2023”

      I wonder if Mr. LKB is planning on attending the arguments…

  4. Like the g_stapo in WW2, which made 80% of its arrests based on detailed testimonies of informing friends and neighbors, they intend to play the long game on this one and rely on clueless “law and order” fudds and milquetoast “I support the 2nd, but…” types to report on people conducting private sales. Why have agents strolling around gun shows nationwide making a scene in public, when they could just post anonymous tip flyers all over and let the accusations and evidence flow to them.

    If you have any Fudds in your life, now is a PERFECT time to sit them down and explain why the 2A isn’t about hunting.

  5. So in other words, if you’re ever making a private sale, and the buyer asks about whether you might want to sell anything else, the answer is “NO.” Lean in close to make sure the wire picks it up.

    I wouldn’t put it past the ATF to set up a front website along the lines of GunBroker. Then at some point when you post a firearm for sale, you’ll get one of those automated pop-up surveys. “Would you be interested in using to sell future firearm acquisitions?” Answer “yes” and you’re an unlicensed dealer.

  6. As I have said before, we need to metaphorically burn the executive branch to the ground so that we clean out all the weeds and enemies of the American people and the Constitution. Only then can we start anew without having executive branch agencies acting in a totalitarian state!! Congress needs to drag the necessary people at the DOJ, the FBI AND the President’s staff that advised and assisted/directed the ATF to enacted this direct affront to the 2nd Amendment and the laws established by Congress in order to put their lame excuses on the record for further use; legal or otherwise.

  7. The O’Biden administration cannot pass gun control in Congress, so they will shut down and seize all FFL’s, and all stores that sell guns (and ammunition),and arrest and shoot anyone else they think sell guns. There, problem solved, no more guns, just like brain dead Gabby Gifford has been advocating for. They knew there was more than one way to skin a cat, found a way, and are running full speed ahead with no one stopping them.

  8. Space Lord Mutha Fucka….
    “Hello, my name is Joe Biden and I took an oath to protect and defend the Constitution. Yeah I lied so what are you, the citizens of America, going to do about it? Remember boys and girls, I’ve got Armies and Agencies and I control your finances and lively hoods, what your children are told to think, and how you are forced to obey.
    We are legion, I Am theBiden.
    Close the door turn out the light
    No they wont becoming home tonight

    • Nice, possum, Monster Magnet and Zeppelin in one awesomely twisted FJB’ism. Thanks for the chuckle.

  9. Call them whatever you want. The bottom line is these are government workers. Who believe they can do whatever they want to do.
    They all should be fired.

    Whenever I hear a conservative or a libertarian say the government should be smaller. I want to throw up.
    Not of them have said fire these government workers in mass. Only Ramaswamy has said this.

  10. BSCA only passed because Republicans in Congress backstabbed their own constituents and voted for it. Once again, no consequences, nobody kicked off committees, nobody primary challenged, nobody thrown out of office.

    We are our own worst enemies.

  11. I recall that the ATF complained it could only do audits of the existing FFLS once every five years or so due to a lack of manpower. How are they going to handle it when those numbers go through the roof?

    Oh never mind. Every inspection will result in a revocation, and the numbers will come down to a manageable level within a few years.

    • I don’t think the point is to add more dealers. The point is regulating/limiting sales and more teeth to go after private to private sales. They probably would make it pretty hard to get approved as a new kitchen table dealer, I don’t think they really want you doing that.

      I imagine they would try to identify a few people doing a couple of face to face transfers and pay them a visit or send a letter to scare them off selling. Plus any high visibility cases like someone sold to a murderer then they can bear down hard on the seller.

  12. quote——–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.———quote

    The above statement is only partially correct. What the Biden Administration is doing is cracking down on people who are making a living selling guns at gun shows and selling guns with zero paperwork. Some States and or Big Cities require that every gun sold at a gun show or even a flea market must go through a licensed dealer before being sold. Therefore everyone selling their guns at a show whether it be several or a hundred firearms could send their customers to an F.F.L. Dealer at the gun show to be vetted before the purchase. So, no the ATF would not have to issued millions of new F.F.L. Licenses. Private sales would work the same way but be unenforceable.

    Of course this is nothing new. Back in the day or several decades ago I remember the ATF cracked down and was arresting people at gun shows for dealing without a license but when asked in court what constituted a dealer and how many guns you could sell before being required to get a license the ATF refused to say. It seems as though history is again repeating itself.

    The other problem is how can you even enforce a limit on how many guns one could sell without a license. How could the ATF prove how many guns you sold unless they had an agent watching you 24 hours around the clock or spying on you at a gun show. Someone walking around with a gun for sale could sell a couple of guns at one show, leave and then go to another show and sell a couple more at another show or even stop off at a flea market. In other words the idea of limiting the amount of guns one could sell is more difficult to enforce than one might imagine. It only works at a fixed location such as a gun show and then only if the person selling is unlucky enough to be picked out and spied upon.

    Let’s face facts only a Federal Universal Background Check Law coupled with Registration will work the way the government and the overwhelming majority of American People want it to work and that is keeping guns out of the hands of people who should not have them such as criminals, lunatics and Trumpite Stormtrooper Insurrectionists, many who now are in prison.

  13. “It’s an unfeasible requirement. There is no way ATF could keep up with another 328,000 federal firearm licensees.”

    Duh. That’s the point. No license = arrest.

  14. Do not speak to these clowns period…Tell the goodbye… if they threaten you with charges assert your rights and tell the GFY!

  15. People are missing out on some significant and unintended consequences to this.
    This directive will increase the number of people who the ATF MUST give a FFL to. And FFL grants you rights that the “little people” don’t have.

    Currently if a person wants to get a FFL they have to prove to the ATF that they genuinely intend to maintain a business that engages in commerce in firearms.

    This includes typically the creation of a business plan, inventory management system, zoning compliance etc.

    With this threshold you could simply show that you sell a few new guns every year, but don’t really make a business of it and you end up with an FFL.

    Now here are some of the benefits.
    1) exemptions from some of the more onerous laws in anti-gun states. This includes the ability to purchase and build otherwise illegal versions of modern sporting rifles and the ability to possess new standard capacity magazines.

    2) the ability to cheaply and LEGALLY manufacture machine guns for business use. Do you want to build yourself a 100% LEGAL select fire M4 for $800?? An 07 FFL for $50/year gets you that ability. A companion SOT for $500/yr gets you the ability to make or transfer as many NFA items as you would like in a year. But even without a SOT you can make or transfer, you just need to pay $200 per item.

    Think of it as a $500 all you can eat buffet vs a $200 a la carte menu.
    Also, even if you have a FFL to sell your new guns, you can still sell your used guns personally, this means no background checks. Generally speaking if a FFL who has the license in their name would like to move a gun into their personal collection they are allowed to “book it out” and then its theirs. They must hold it for at least a year before selling it. If they want to sell it in less than a year, they need to book it back in and then sell it through the dealer/manufacturer license.

    The bottom line is that being required to get a FFLis not a good thing. HOWEVER for many gun owners, the OPPORTUNITY to get a FFL would be a very good thing.

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