ATF’s Closing Rule Definition of “Engaged in the Business” as a Supplier in Firearms quantities to 466 pages of responses to feedback and the ultimate rule itself. Over 252,000 of the 258,000 feedback or 98% in favor of the proposed rule have been kind letters with similar textual content discovered on-line and really useful by (anti-gun) organizations. Solely 5,140 weren’t kind letters. Of the 99,000 feedback against the rule, 80,000 or 81% have been kind letters. That implies that 18,810 weren’t kind letters. So greater than 3 times the numbers of opponents filed feedback with precise substance as did these in favor.
The ultimate rule is considerably the identical because the proposed rule. See my earlier submit “‘He’s at it again!’ Merrick Garland proposes ever-more intrusive ATF regulations.” Plenty of factors that I (and others) made in feedback filed in opposition to the proposed rule have been taken severely sufficient for ATF to reject at size.
One new merchandise stands out. The Gun Management Act (GCA) excludes occasional gross sales and purchases of a “personal collection” of firearms from the time period “engaged in the business” of dealing in firearms. The proposed rule outlined “personal collection” to incorporate curios and relics and firearms utilized in leisure actions. In response to quite a few feedback criticizing the proposal for not together with firearms used for self-defense, the ultimate rule explicitly states that “the term [personal collection] shall not include firearms accumulated primarily for personal protection.” But nothing within the statute excludes such firearms from being a part of a private assortment.
By purporting to exclude the occasional shopping for and promoting of firearms acquired for self-defense from the “personal collection” class, the rule would render the individual extra more likely to be topic to the licensing requirement. But that class was enacted by the Firearm Homeowners’ Safety Act of 1986, which declared that the rights of residents … to maintain and bear arms beneath the second modification to the USA Structure … require extra laws to appropriate current firearms statutes and enforcement insurance policies.” And the Supreme Court stated in D.C. v. Heller that the Second Amendment protects “arms ‘in widespread use on the time’ for lawful functions like self-defense.”
In defining “engaged within the enterprise” as a dealer, the rule states that “there isn’t a minimal threshold variety of firearms bought or offered that triggers the licensing requirement,” and that “even a single firearm transaction or provide to have interaction in a transaction, when mixed with different proof … could require a license.” Sounds pretty vague given that engaging in business of dealing in firearms without a license is a serious felony.
The rule purports to create a presumption in civil and administrative proceedings that one is engaged in the business if one “repetitively resells or presents for resale firearms” within 30 days after purchase, or within a year after purchase if the firearms are “new, or like new of their unique packaging” or “the identical make and mannequin, or variants thereof.” These are activities in which collectors typically engage – sometimes quickly moving the collection up the ladder with more collectible acquisitions and collecting variations of the same make and model. Nothing in the GCA imposes such time limits.
The rule also purports to create a presumption in civil and administrative proceedings that “an individual has intent to predominantly earn a revenue” if the person “posts firearms for resale, together with by means of the Web” or repetitively rents “a desk or area at a gun present,” and the list of presumptions “usually are not exhaustive.” Again, these are activities in which collectors typically engage. And the statute excludes from such “predominant intent to earn a revenue” occasional sales to enhance a personal collection.
The rule claims that the above rebuttable presumptions do not apply in criminal cases, but says the opposite by stating that “they might be helpful to courts in prison circumstances, for instance, when instructing juries concerning permissible inferences.” Jury instructions are based on statutory text and judicial opinions, not advocacy by the very agency involved in prosecuting alleged violations.
Many comments argued that the rule violates the Second Amendment. While dictum in Heller did not question the validity of “legal guidelines imposing circumstances and {qualifications} on the industrial sale of arms,” the new rule – which is not a “legislation” – redefines “engaged within the enterprise” to include many private, non-commercial sales.
ATF’s commentary includes the following fundamental misunderstanding of Supreme Court precedent: “In response to commenters stating that the Division mustn’t use the Heller two-step course of, the Division acknowledges that Bruen abrogated the ‘two-step’ framework of Heller, as ‘one step too many,’ and rejected the appliance of means-end scrutiny on the second step.” But it was lower courts that obstructed Heller, not Heller, that invented the two-step framework. Relying on text and history, Heller rejected means-ends scrutiny (for which Justice Breyer argued in his dissent), and N.Y. State Rifle & Pistol Ass’n v. Bruen reinforced and expanded on that rejection.
In support of its expansion of the licensing requirement, ATF’s response seeks to find historical analogues under Bruen in the wrong places. In 1794, Congress restricted the export of arms and matériel in order to enhance the arming of America at a time when war with Great Britain threatened. The colonies restricted arms trade with Indians to reduce the threat from hostile tribes. Massachusetts enacted a gun proving law. Various laws concerning gunpowder were enacted to ensure a safe, reliable supply. None of these laws parallels the “how” and the “why” of the rule’s radical expansion of the licensing requirement.
ATF’s commentary fails to rebut the comments that the agency lacks delegated authority to promulgate the rule. In enacting the Gun Control Act in 1968, Congress rejected a provision that would have made it a crime to violate a regulation. Instead, all GCA offenses are defined in terms of violations of “this chapter,” i.e., chapter 44 of 18 U.S.C., the criminal code. The Firearm Owners’ Protection Act of 1986 reduced ATF’s regulatory authority by changing the original phrase “such guidelines and rules as he [the Secretary] deems fairly mandatory” to “solely such guidelines and rules as are mandatory.” Finally, the delegation by Congress to ATF to promulgate explicit, limited regulations negates the power to adopt expansive, general regulations under the rule expressio unius est exclusio alterius.
The commentary also fails to rebut comments citing Supreme Court precedents such as Thompson/Center Arms v. U.S. holding that both criminal and noncriminal applications of a statute must be interpreted consistently and, if ambiguity exists, interpreted against the government in accord with the rule of lenity.
Finally, on some issues ATF is plainly erroneous but sticks to its error nonetheless. For instance, the GCA prohibits an FFL from transferring a firearm in interstate commerce to a non-FFL, but exempts “returning a firearm or alternative firearm of the identical variety and kind to an individual from whom it was obtained.” 18 U.S.C. § 922(a)(2)(A). ATF adds the limitation that it may be returned only “for the only real goal of restore or customizing,” which it justifies because the phrase “has lengthy been discovered within the rules.” Never admit a mistake, especially if it is longstanding.
“As extra individuals change into licensed beneath this rule, these licensees will conduct extra background checks,” as the commentary correctly states. Indeed, that is its purpose. Since Congress rejected universal background checks, the Biden Administration decided to do the same by regulation.
This rule on “engaged within the enterprise” is the third major set of new regulations set forth by Attorney General Garland, following those on “frames-or-receivers” and “pistol braces.” They were preceded by the Trump Administration’s “bump-stock” rule, which is the subject of Cargill v. Garland, which was argued in the Supreme Court this term. We’ll see whether the Court sets limits on what has become a constant pushing of the envelope of regulatory overreach by the executive branch.
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As I posted last week, the Commissioner of the Washington Supreme Court scheduled a hearing on April 17 regarding the stay he issued against the injunction against enforcement of the state’s magazine ban that was ruled unconstitutional by the Superior Court for Cowlitz County in State of Washington v. Gator’s Custom Guns. At the hearing, the Commissioner responded to criticism for his issuance of the stay without having time to study the court’s 55-page ruling and the state’s 32-page motion to stay. He stated that he received the papers on April 8 at 4:14 pm and issued the stay at 4:58 pm. He didn’t need more time to review the papers because he had done “a whole lot of analysis” beforehand and made himself into an expert on the issue; he “anticipated all of the arguments the Legal professional Basic would make” and had “boiler plate templates” for the stay order.
Most of the “listening to” consisted of the Commissioner’s musings. A 12-gauge shotgun or a revolver would be good enough for self-defense. A semiautomatic works fine with 5 or 10 rounds. Judge Benitez’s decision in Duncan v. Bonta holding California’s magazine ban violative of the Second Amendment was based on experts who were “snake oil” salesmen. The arms that pioneers had when Washington was settled were “mind-bogglingly” totally different than now. The Commissioner anticipates a choice subsequent week on whether or not the keep shall be made everlasting. Do not maintain your breath ready for it to be lifted.