Biden Administration Ratchets Down Another Notch v. Second Amendment

The Biden-Harris administration—according to a statement from the White House—has taken what it claims to be “another life-saving step” to keep guns out of “dangerous hands,” this time by proposing a new “rule” to essentially shut down gun shows and make it more difficult for gun owners to buy or sell their personal firearms.

This came a day after the federal Bureau of Alcohol, Tobacco, Firearms and Explosives announced the following:

“On August 30, 2023, the Attorney General signed ATF’s notice of proposed rulemaking (NPRM) 2022R-17, ‘Definition of ‘Engaged in the Business’ as a Dealer in Firearms,’ which proposes to amend ATF’s regulations to implement the provisions of the Bipartisan Safer Communities Act (BSCA), enacted on June 25, 2022.

“The NPRM proposes to incorporate the BSCA’s definition ‘predominantly earn a profit,’ creating a stand-alone definition of ‘terrorism,’ and amending the definitions of ‘principal objective of livelihood and profit’ and ‘engaged in the business’ to ensure each conforms with the BSCA’s statutory changes and can be relied upon by the public.”

Gun owners can shake their heads and scratch their chins, wondering if the Biden-Harris administration and the ATF under Steve Dettelbach want to consider private sellers and buyers as “terrorists.”

There are two sets of bullet points, one from the White House and the other from ATF. Here’s the White House version:

“The proposed rule, if finalized, would clarify that an individual would be presumed to be “engaged in the business” of dealing in firearms—and therefore be required to become a licensed firearms dealer and run background checks—if they meet certain conditions. For example, under the proposed rule, a person would be presumed to be required to become a licensed dealer and run background checks if they meet one or more of the following criteria:

• Offer for sale any number of firearms and also represents to potential buyers that they are willing and able to purchase and sell them additional firearms;
• Repetitively offer for sale firearms within 30 days after they were purchased;
• Repetitively offer for sale firearms that are like new in their original packaging;
• Repetitively offer for sale multiple firearms of the same make and model; or
• As a formerly federally-licensed firearms dealer, sell firearms that were in the business inventory and not transferred to a personal collection at least a year before the sale, addressing the so-called “fire sale loophole.”

“The proposed rule,” says the White House, “would also clarify that, for civil or administrative actions, an individual would be presumed to have the intent to ‘predominantly earn a profit’—one of the elements of engaging in the business of dealing firearms—if the person engages in activities such as:

• Creating a website or making business cards to advertise or market a firearms business;
• Maintaining records to document and track profits and losses from firearms purchases or sales; or
• Purchasing business insurance or renting space at a gun show.

“The proposed rule,” the Biden-Harris administration says, “would make clear that there is no ‘gun show loophole’ or ‘internet loophole’ in federal law. Dealers who engage in the business of selling guns are required to obtain a license and run background checks no matter where they engage in the business of buying and selling firearms. That include at gun shows and over the Internet.”

While it is an arguable point some people attend gun shows regularly to buy and sell firearms—and therefore might be considered “engaged in the business,” one would have to look closely at the White House criteria to determine whether he/she does, or does not, fit the description.

But then comes the list of bullet points in the ATF announcement:

“Furthermore,” the ATF says, “the NPRM specifically proposes to clarify when a person is ‘engaged in the business’ as a dealer in firearms at wholesale or retail by:

• Clarifying the definition of ‘dealer’ and defining the terms ‘purchase’ and ‘sale’ as they apply to dealers;
• Clarifying when a person would not be engaged in the business of dealing in firearms as an auctioneer, or when purchasing firearms for, and selling firearms from, a personal collection;
• Setting forth conduct that is presumed to constitute ‘engaging in the business’ of dealing in firearms, and presumed to demonstrate the intent to ‘predominantly earn a profit’ from the sale or disposition of firearms, absent reliable evidence to the contrary;
• Clarifying that the intent to ‘predominantly earn a profit’ does not require the person to have received pecuniary gain and that intent does not have to be shown when a person purchases or sells a firearm for criminal or terrorism purposes;
• Adding a single definition for the term ‘personal collection, personal collection of firearms, or personal firearms collection” and adding a definition for the term “responsible person’;
• Addressing how former licensees, and responsible persons acting on behalf of former licensees, may lawfully liquidate business inventory upon revocation or other termination of their license; and
• Clarifying that licensees must follow the verification and recordkeeping procedures in 27 CFR 94 and Subpart H, rather than using an ATF Form 4473 when firearms are transferred to other licensees, including transfers by a licensed sole proprietor to that person’s personal collection.”

Once the proposed rule, all 108 pages of it, is published in the Federal Register, a 90-day period for public comment will be open. Here are the two ways people may submit comment:

• Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments. 
• Mail: Helen Koppe, Mail Stop 6N-518, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Ave. NE, Washington DC 20226; ATTN: ATF 2022R-17

So, sometime between now and the end of this year, the Biden-Harris administration will have likely set another brick in place on the wall the president has been determined to build between the people and the Second Amendment.

With 2024 just over the horizon—and with it the beginning of the campaign for the presidency, every seat in the U.S. House of Representatives and many seats in the U.S. Senate—one might think a major gun control effort might be held off. Nothing brings gun owners to the polls like an attack on their rights, but perhaps Democrats don’t think they need to worry this time around.

ATF – Engaged in the Business as a Dealer in Firearms by AmmoLand Shooting Sports News on Scribd

About Dave Workman

Dave Workman is a senior editor at TheGunMag.com and Liberty Park Press, author of multiple books on the Right to Keep & Bear Arms, and formerly an NRA-certified firearms instructor.