The Biden administration is reportedly treading the difficult path of advancing a proposal that a background check be conducted each time there is a sale of a firearm—a move that is swelling furor and concern from so many stakeholders. According to a watchdog group, Empower Oversight, the Alcohol, Tobacco, Firearms, and Explosives Bureau is actively working on a voluminous 1,300-page document in support of a rule that would effectively ban private firearm transactions without background checks.
That goes back, really, to President Joe Biden’s executive order nearly a year ago, which called on the Bureau of Alcohol, Tobacco, and Firearms to find a way to use rule-making to increase the number of background checks conducted before firearm sales. Empower Oversight, citing two unnamed whistleblowers within the ATF, claimed the agency would sweep in more of the estimated 6 million gun sales not currently subjected to background checks under federal law, and that the regulation would expand checks to cover intrastate transactions as well. “These are going to be the most expansive background check requirements in Department history, and a massive shift away from the normal understandings about how interstate commerce may allow ATF to regulate firearms,” Emp.
In the current state of law, it is defined as an individual “engaged in the business of selling firearms,” a term narrowed by the Bipartisan Safer Communities Act of 2022 to include those who principally do business to make a profit on, essentially, repeated firearm sales. Among the proposed implementations of the ATF is the rule published in the Federal Register on September 8, 2011, interpreting who and who is not “engaged in the business” of dealing firearms.
The factors suggested that might indicate a person is a dealer read like a walking tour of overreach: person sells firearms with an intent to profit from buying and selling firearms, person buys firearms to sell for a profit and reports taxable gross income of such sales for less than the cost of the guns, person repetitively sells firearms shortly after person acquires them. The suggested standards might well overreach because they cut directly into the exception for collectors and hobbyists that the statute provided.
David Kopel, an expert on gun policy at the Independence Institute, highlights that the ATF’s reading could require anyone who sells a firearm for a profit to have a dealer’s license. Again, this is likely something that, without relatively dramatic changes to federal law, could be hard to justify on the existing statutes. Empower Oversight’s president, Tristan Leavitt, has told the Department of Justice that he is deeply concerned that such a regulation would increase constitutional and statutory problems, cause a separation of powers conflict, and be in conflict with the Second Amendment.
Peter J. Forcelli is a retired deputy assistant director of the ATF. At most, he concedes that background checks could have some “good attached” if done for each private sale, but admits these would be very difficult to enforce in reality. He points out that violent criminals are often committing criminal acts with illegally obtained guns, and there should be as much effort placed on prosecuting criminals as there is on putting a bigger burden on law-abiding citizens.
The ATF has asked inquiries to the answers on the BSCA, which in turn updated the meaning of engaging in the business of dealing in firearms. The agency posits that unlicensed dealing impairs accordance with public safety measures required of federal firearm licensees.
Empower Oversight has filed a formal request for all records and communications related to the proposed rule, either explicitly created or including the White House and ATF Senior Policy Counsel Eric Epstein. The group cautions that enforcement of a broad regulation of this sort would put at risk ATF field agents and could lead to conflicts that echo Ruby Ridge and Waco.
The debate rages on, focused on how the potential rule will negatively impact the sale of privately owned firearms, as well as the general implication for Second Amendment rights.