At issue is the ATF’s attempt to classify private sellers of firearms as “dealers” and as such subject to requirements to obtain a federal license. A seller in a simple and legal transaction would be forced to conduct a criminal background check.
This would apply to commerce at gun shows and even private sales.
But U.S. District Judge Matthew Kacsmaryk issued a temporary restraining order (TRO) that halted the action against members of several Second Amendment advocacy organizations. This meant that the rule would not be implemented in Texas or for gun rights groups including Gun Owners of America.
But it was not good news for gun owners in Louisiana, Mississippi and Utah. Though they joined Texas in suing the ATF, Kacsmaryk determined that these three states had no standing in the Lone Star State and thus were not beneficiaries of the TRO.
For the rest of the country, the Final Rule took effect on Monday.
Texas Attorney General Ken Paxton released a statement celebrating the decision. “I am relieved that we were able to secure a restraining order that will prevent this illegal rule from taking effect.”
He added that the federal government does not have the authority to “unilaterally overturn Americans’ constitutional rights and nullify the Second Amendment.”
As the plaintiffs in Texas v. ATF argued before the court, the judge determined that there is a high likelihood that the ATF Final Rule ran afoul of the Administrative Procedures Act.
This law is in place to prevent unelected bureaucrats from arbitrarily creating statutes that should instead be left for Congress to accept or reject.
Kacsmaryk wrote, “Plaintiffs understandably fear that these presumptions will trigger civil or criminal penalties for conduct deemed lawful just yesterday. And as this Court’s analysis makes clear, Defendants’ Final Rule is almost certainly violative of — at the least — the [Administrative Procedures Act]. As such, both the balance of equities and the public interest weigh in favor of allowing orderly judicial review of the Rule before anyone shuts down their businesses or sends them to jail.”
The passage of a controversial gun control bill in 2022 included a seemingly innocuous but significant change in wording of federal regulations. Gone was the stipulation that a gun dealer was someone whose “livelihood” depended on these transactions.
Now, they simply must receive a profit from selling a firearm to be required to register as a Federal Firearm Licensee (FFL).
With this in mind, Kacsmaryk criticized the government’s placing of the burden of proof of “profit” on the seller rather than regulators as “highly problematic.”
And if there was ever any doubt as to the ultimate goal of this new rule, President Joe Biden cleared up that confusion. First, he claimed that it would keep weapons out of the hands of bad actors and save lives.
Then the president added, “Congress needs to finish the job and pass universal background checks legislation now.”
Who does this new rule affect? According to the ATF’s own estimates, as many as 25,000 Americans have been selling firearms who are now considered criminal suspects if they continue their practices. Though it purported to target those who “predominantly earn a profit,” the troubling rule is so vague that it could apply to a single weapon sale.
And the penalties are stiff. A violation of the new ATF rule could result in up to five years in federal prison and a $250,000 fine.
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