A Kansas judge and 21 state attorneys general have filed a federal lawsuit challenging the Biden administration’s “Final Rule” that changes the definition of “engaged in the business” as a firearms dealer.
The rule is scheduled to take effect this month.
The lawsuit was filed May 1 in U.S. District Court for the Eastern District of Arkansas, Delta Division. Phillip Journey, acting as a private citizen and not in any official capacity, told Ammoland News via telephone he is the lead individual plaintiff in the case.
Signing onto the complaint are the attorneys general of Alabama, Alaska, Arkansas, Kansas, Iowa, Idaho, Indiana, Georgia, Kentucky, Montana, Missouri, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Virginia, West Virginia and Wyoming, all Republicans. In addition to Journey, other individuals in the lawsuit are identified as Allen Black and Donald Maxey and they are joined by the Chisholm Trail Antique Gun Association.
Named as defendants are the U.S. Justice Department, Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Attorney General Merrick B. Garland, and ATF Director Steven Dettelbach, in their official capacities.
The lawsuit asks the court, among other things, to declare the “Final Rule” to be in violation of the Administrative Procedures Act because it was not promulgated “in accordance with the law” and is “arbitrary and capricious and is of no force and effect.”
According to an ATF announcement last month, the Final Rule “clarifies 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,” “sale,” and “something of value” as they apply to dealers;
- adding definitions for the term “personal collection (or personal collection of firearms, or personal firearms collection),” and for “responsible person”;
- 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, in civil and administrative proceedings;
- 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;
- clarifying the circumstances when a person would not be presumed to engaged in the business of dealing in firearms, including as an auctioneer, or when purchasing firearms for, and selling firearms from, a personal collection;
- addressing the procedures former licensees, and responsible persons acting on behalf of such licensees, must follow when they 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 478.94 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.”
According to Journey, the new rule essentially “makes us all FFLs if we sell one gun and make one dollar” in profit.
He said the definition is so vague “I don’t see how it can stand.”
The 54-page complaint alleges that the 1986 Firearm Owners Protection Act (FOPA) “narrowed the definition of ‘dealer’ by defining ‘engaged in the business’ as ‘a person who devotes time, attention and labor to dealing in firearms as a regular course of trade or business with the principle objective of livelihood and profit through the repetitive purchase and resale of firearms.”
However, the complaint notes, FOPA “expressly excluded ‘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.”
The complaint further recalls that Congress two years ago passed a narrow amendment to the 1968 Gun Control Act which amended the definition of “dealer” in two ways.
“First, it replaced ‘with the principal objective of livelihood and profit’ with ‘to predominantly earn a profit.”
“Second, it defined ‘to predominantly earn a profit’ as an ‘intent underlying the sale or disposition of firearms [that] is primarily one of obtaining pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection.”
The only difference between the FOPA definition of intent and the definition included in Joe Biden’s Bipartisan safer Communities Act of 2022 was the BSCA’s omission of “livelihood” in the wording, the complaint says.
However, the complaint alleges, “from that tiny seed, the Biden administration and defendant Dettelbach sought to smuggle in the backdoor what Congress had long-refused tro allow in the front door: near universal background checks, with the criminal edges so fuzzy that few individuals would risk private sales of firearms.”
Ammoland reached out to Montana Attorney General Austin Knudsen, who has been involved in several cooperative actions by state attorneys general in defense of Second Amendment rights. Via email, he responded: “This is another attempt by the Biden administration to criminalize law-abiding Montanans for exercising their right to keep and bear arms. I will continue to stand up for our Second Amendment rights and fight the federal overreach coming out of Washington.”
Journey, a veteran gun rights advocate in private life, formerly served in the Kansas Senate, and on the NRA Board of Directors. He asserted, “What they’re trying to do is expand the instant check process to (include) anyone at a gun show.” He is concerned that the Final Rule will allow the government “to selectively prosecute anyone they want.”
The lawsuit asks the court to postpone the effective date of the Final Rule pending judicial review, and, among other things, that this rule “violates rights protected by the Second Amendment and is of no force and effect.” Plaintiffs are also seeking an injunction prohibiting enforcement of the Final Rule.
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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.
Imprison the Infringers. This tyranny will stop.
Thank you for this! Now, we really need to bug our congressmen to defund the ATF. They get cocker every day in their rule making, early morning raids, harassing our FFL dealers, and knock and talks. These chicken shits love to make law abiding citizens miserable yet do very little rounding up gangbangers with their Glock switches. Why in the hell do we put up with it!?!
Just think if we didn’t have representatives that stand up against the tyranny that democrat administrations in the past and our current administration committed to the destruction of our 2nd amendment end result would be. I am amazed that we are having fights to protect our rights that we shouldn’t have. None of these new rule/law changes should be taking place and the ones of the past shouldn’t have either. All the laws on the books and none of them made the USA safer. Why? The laws against the criminals didn’t work because they didn’t enforce them so they changed… Read more »
Annually, people use guns defensively to stop crime and defend themselves between a million and 3 million times per year. Consistently. Alternatively, thugs, druggies and angry people murder with guns about 11,000 times per year. And people use them for suicide about 30,000 times per year. The overwhelming use of guns is for good, to defend… but think how those numbers would flip if only the human garbage (crooks and gov employees) had guns!!!!
I think about that all the time and that is why I am so concerned about the government trying to steal our guns. One look at Germany is enough for me. My mom moved here from there and I heard allot of true accounts of what happened when my mom was 13 years of age.
They say in life there are winners and losers but in war everyone suffers a loss.
I’ve always been under the impression that Congress are the only ones that can make laws? Did I miss something some where? The problem as I see it is Republicans got no balls, otherwise ruling by Executive order would have been put down 3 years ago. I’m afraid this country is done, and if that is so what do we have to lose? I’ve heard that it’s Communism, Nazism, Islam, but I here to tell you it’s the New World Order. Bush senior spoke of it during his debate with Clinton, and Peirol. They have their people in positions, and… Read more »
The Legislative Branch (Congress) was formed to enact laws. The Judicial Branch (Supreme Court and lower courts) was formed to interpret laws as to their conformity with the Constitution. The Executive Branch (President) was formed to enforce compliance. No bureau, department, office or organization has any authority to make rules or laws other than the Legislative Branch. BATFE is overstepping every possible limit and should now be viewed as an illegal entity. It should be defunded and dissolved.
time to start building gallows about 100 at a time lots of rope
FBATFE rejects applications for FFL’s for not having a retail storefront (outside the home) and revokes them for not selling enough, yet wants to also say you can’t sell without a license, which they won’t grant? Eff them and the horse they rode in on, we will keep living life as we have, and ignoring their unconstitutional bs.
unless there are local zoning ordinance restrictions, homebased ffl’s are still being permitted.
Suit needs to plead for a pinky pull promise not to Little Rock anyone thought to be in violation…….