The ATF proposal is ATF2022R-17, also known as “Definition of ‘Engaged in the Business’ as a Dealer in Firearms.” If enacted, it will rely heavily on the so-called Bipartisan Safer Communities Act (BSCA) signed into law by President Joe Biden in 2022.
Further, the new policy would apply the BSCA meaning of gaining a profit from a firearm transaction. No longer would just cash be considered, but also if the weapon is exchanged for a service or personal property.
So, exactly who would now require a federal firearms license (FFL)?
The proposed rule reads, “Rather than establishing a minimum threshold number of firearms, purchased or sold, this rule proposes to clarify that, absent reliable evidence to the contrary, a person will be presumed to be engaged in the business if dealing firearms when the person:
- 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;
- Spends more money or its equivalent on purchases of firearms for the purpose of resale than the person’s reported taxable gross income during the applicable period of time;
- Repetitively purchases for the purpose of resale, or sells or offers for sale firearms —
(A) Through straw or sham businesses, or individual straw purchasers or sellers.
…
- Repetitively sells or offers for sale firearms —
- within 30 days after they were purchased;
- that are new, or like new in their original packaging; or
- that are of the same or similar kind (i.e. make/manufacturer, model, caliber/gauge, and action) and type (i.e. the classification of a firearm as a rifle, shotgun, revolver, pistol, frame, receiver, machinegun, silencer, destructive device or other firearm);”
NRA-ILA Executive Director Randy Kozuch criticized the proposal as “just another attempt to demolish our Second Amendment rights, with the potential to unjustly criminalize everyday Americans for engaging in lawful firearm transactions.”
Kozuch hardly stopped there in his statement to Fox News Digital. “This rule blatantly disregards the recent NRA-backed Bruen ruling on the Second Amendment. It also creates serious confusion among lawful gun owners who buy and sell firearms legally for various purposes, from collecting to self-defense.”
The gun rights advocate challenged Washington to turn its attention toward measures that would make a meaningful impact in fighting crime. For example, the focus could be on enforcing existing statutes and altering policies to target criminals.
This, Kozuch declared, would be far more effective than targeting law-abiding citizens.
The ATF published its proposal on Aug. 7, 2023, and left it open for a 90-day comment period. That ended Dec. 7.
The controversial offering drew over 330,000 responses. Many cited the obvious confusion the new rule would create among competitive shooters and gun collectors. Hobbyists frequently purchase and sell firearms, so will they be required to obtain an FFL?
The day the public comment period expired, Montana Attorney General Austin Knudsen and 25 other state AGs sent a harsh letter to the ATF condemning the proposal.
“The proposed rule is unconstitutional, violating the Second Amendment by making any individual who sells a firearm without a federal license liable to civil, administrative or even criminal penalties,” Knudsen asserted in a press release.
The letter to the ATF noted that it should be legal in the U.S. for an individual to sell a weapon to another family member without the possibility of prosecution.
A family exception is built into the proposed ATF rule, but Knudsen and his 25 co-signers said it is fundamentally flawed. “Reading the exception, one can conclude that if a family member sells another family member a firearm for as little as one dollar more than the original purchase price, that seller could be open to civil, administrative or criminal liability.”
