ATF Threatens to Label Millions of Americans “Gun Dealers” in Expansive New Regulation

Private gun trades could soon be criminalized under Biden. Gun owners, brace yourself.

President Joe Biden’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) is once again working to shake off congressional oversight by proposing a new rule that could potentially turn millions of law-abiding firearm owners into criminals—should they refuse to bend the knee.

In September 2023, the ATF, led by director Steven Dettelbach, announced a proposed rule (ATF2022R-17) that would update the definition of “engaged in the business” of firearm dealing. If enacted, the new rule will require everyday Americans to register for a dealer’s license if they profit off the sale of a firearm—even if it is a routine sale between collectors.

The rule oversteps the initial definition of “engaged in the business” established by Congress, which is only applied to “a dealer in firearms,” and places nearly 1.3 million Americans (by the ATF’s own reckoning) in the crosshairs for criminal charges for simply selling a shotgun to a friend.

The proposed rule is a strategic move to bolster the Bipartisan Safer Communities Act signed by Biden in 2022 and is the Biden Administration’s latest attempt to move closer to universal background checks without new legislation. Biden’s March 2023 executive order called for the executive branch to move towards universal background checks, despite Congress voting against universal background checks in 2013.

Biden’s executive order directed the President’s cabinet to:

increase the number of background checks by ensuring that all background checks required by law are conducted before firearm purchases, moving the U.S. as close to universal background checks as possible without additional legislation.

“The Biden ATF’s proposed rule . . . is just another attempt to demolish our Second Amendment rights, with the potential to unjustly criminalize everyday Americans for engaging in lawful firearm transactions,” NRA-ILA executive director Randy Kozuch told reporters. “If the Biden administration were truly committed to combating crime, they would focus on enforcing existing laws and reform their soft-on-crime policies, targeting actual criminals instead of law-abiding American gun owners,” he added.

Who is Affected?

While the definition of a gun dealer may change, the legal punishment for failing to register would remain the same. Numerous Americans could be subject to felony charges, firearm seizure, and denial of a license.

Though the rule claims to only focus on those who sell a “large number” of firearms, it also states that there isn’t a “minimum threshold” that would trigger the “engaged in the business” licensing requirement. In other words, the rule is meant to be as sweeping as possible.

The rule further sows confusion, as a firearm does not need to be sold for one to be assumed as someone who “engages in the business.”

From the text: “A person shall be presumed to be engaged in the business of dealing in firearms in civil and administrative proceedings, absent reliable evidence to the contrary, 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.”

Taking the Focus Off Real Criminals

With such vague language and a clear overstep of its own power, it almost seems the ATF is setting up law abiding Americans for failure. Yet in some respects this move has been in the works for decades.

In 1993, President Bill Clinton instructed the ATF to take “whatever steps necessary” to reduce the number of gun dealers since the agency could not keep up. At the time, there were 287,000 licensed firearms dealers. Thirteen years later, the ATF had managed to reduce the number of dealers to 51,462.

Even with that stunning 82 percent decrease, the ATF struggled to keep up with its own inspections, only managing to inspect 5 percent of all dealers that year. An ATF inspector general report in 2006 stated that it would take 22 years to properly inspect all dealers.

The proposed rule would not only pull ATF resources away from actual criminal investigations, but it’d also cost the agency millions of dollars to implement. Taxpayers would be paying to be investigated while real criminals run free.

If 51,000 dealers proved too many for the agency, what about 1.3 million potential new “dealers”?

According to the ATF’s own financial impact study, 25 percent of the estimated 1.3 million Americans engaged in gun trades turn a profit, adding at a minimum roughly 328,000 new “dealers” to ATF’s inspection list. The licensing fees would generate close to $111 million in revenue to the agency in the first year, then an additional $16 million per year to maintain a license—all of which is passed on to the consumer.

Yet to reap this artificial windfall the ATF would need to spend another $220 million per year inspecting and regulating these 328,000 “dealers,” according to the internal study. Nor does that analysis account for the personnel needed to accomplish the inspections, potentially ballooning costs by millions of dollars annually, paid for by the taxpayer.

“The Proposed Rule will divert ATF special agents from doing what they do best—apprehending armed criminals on the streets—to wasting time in gun shows or reading classified ads in newspapers and posing as purported gun buyers, in hopes of purchasing a couple of guns to make cases against unsuspecting, harmless members of the public,” the Firearm Industry Trade Association wrote in a letter the ATF.

Attorneys General Fight Back

Montana Attorney General Austin Knudsen led a coalition of 26 attorneys general in opposition of the proposed rule, saying the move is a “shocking and unconstitutional attack” on Americans’ Second Amendment rights.

“This proposed rule is a flagrant violation of every American’s rights guaranteed by the Second Amendment, ignoring the very concerns our founders had when they ratified it,” Knudsen said in the letter. “Rather than meaningfully addressing the rise in violent crime occurring around the country, the Biden administration is once again criminalizing law-abiding citizens. I will always fight federal overreach and attempts to erode Montanans’ gun rights.”

The National Rifle Association (NRA) applauded Knudsen and the coalition for “truly honoring their oath of office.”

A second coalition of state attorneys general, led by Kansas Attorney General Kris Kobach, have lobbied to withdraw the proposed rule, saying it violates the Second Amendment. Kobach argued that the rule must be revised to fall in line with the Supreme Court ruling in the New York State Rifle & Pistol Association, Inc. v. Bruen case.

The Bruen ruling declared that all firearm laws must be firmly rooted in the historical tradition of firearm regulation, further ruling that it is every Americans’ constitutional right to carry a firearm.

“The bureau’s definition of ‘sale for profit’ is itself arbitrary and capricious,” Kobach’s letter said. “For as long as this country has existed, individual law-abiding Americans have sold firearms to friends and family. Doing so would become extremely difficult if this regulation were to take effect.”

Kobach and the coalition of attorneys general will “do everything necessary to stop this from happening.”

The ATF Is Fully Weaponized

Biden’s ATF has continuously proved that they will not adhere to the Second Amendment and will bypass Congress on a whim.

Whether it’s the recent proposed language change, pistol brace rule, or the unnecessary crack down on gun dealers for clerical errors, the agency has proved that they target law abiding Americans for no reason but increasing control.

It is far past time for lawmakers to cut the agency’s budget and ensure the only function is apprehending actual hardened criminals. As long as the ATF is an executive branch pawn intended to exercise power outside of Congress, the American people are not safe.