Biden Administration's Gun Rule: Symbolic, Not Substantive
When Less Than 1% of Criminals Acquire Their Firearms From "Gun Shows" What Can We Expect From the Rule?
Yesterday, the Biden administration signaled an attempt to tackle the so-called "gun show loophole," through a new ATF rule. This announcement predictably ignited the usual partisan uproar accompanied by the kind of superficial legal and policy analysis that breezes past newsroom editors on stories about the right to keep and bear arms.
Unaddressed in any of the news stories is the actual scope of the rule, the practicality of enforcing the rule, and the tangible outcomes that can realistically be anticipated. These factors often go unexamined as politicians capitalize on the public relations benefits of "doing something."
So what is the rule, and what does it purport to do?
Issue:
The Biden administration, via the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), has put forth a rule intended to close the so-called "gun show loophole." The purported goal of this initiative is to clarify the definition of who is "engaged in the business" of selling firearms, necessitating a federal firearms license, which would require all sales to undergo mandatory background checks.
Rule of Law:
Under the new rule, the definition of who is considered "engaged in the business" of selling firearms would be expanded.
Under current U.S. federal law1, a Federal Firearms License (FFL) is required for individuals or businesses that engage in the manufacturing, importing, or dealing of firearms and ammunition. Specifically, the law requires the following:
Dealers in Firearms: This includes any person engaged in the business of selling firearms at wholesale or retail. It requires that the sale of firearms be a regular activity with the principal objective of livelihood and profit through repetitive purchase and resale.
Manufacturers of Firearms: This covers those engaged in the business of manufacturing firearms for sale or distribution. The definition also extends to those who are involved in the manufacturing process.
Importers of Firearms: This includes anyone engaged in the business of importing firearms and ammunition into the United States from other countries.
"[E]ngaged in the business" implies that the activities are not merely occasional transactions or for personal collections. Individuals who occasionally sell firearms from personal collections or as a hobby typically do not need to register as FFLs, unless their activities can be interpreted as engaging in the business under federal guidelines.
Analysis:
The rule, formulated under the 2022 Bipartisan Safer Communities Act, aims to ensure that individuals who frequently sell firearms at gun shows, online, or from their homes with the intent to earn a profit are conducting necessary background checks. This is a significant shift aimed at increasing accountability among gun sellers who peacefully engage in legitimate private commerce, and will almost certainly face a legal challenge.
Note that this rule does not apply universally to all firearm sales. It specifically targets those selling firearms as a regular business activity, not individuals making occasional sales or exchanges from personal collections without a profit motive.
Expanded Scope of Regulation: The rule would categorically include individuals who sell firearms regularly at venues like gun shows and online platforms, even if these sales are not their primary business. The stated intention is to mitigate the risk of firearms being sold without due diligence on the buyer's eligibility. This expansion could significantly impact sellers who have operated without needing to conduct background checks, believing they were not covered under the previous "engaged in the business" definition.
The necessity of this rule is questionable. The individuals targeted by this new rule are arguably already encompassed by existing regulations—if applied rigorously. The ATF's current guidelines do cover individuals who frequently sell firearms with an intent to profit; hence, the new rule may be seen as an effort to emphasize enforcement rather than create new categories of sellers. This could suggest that the issue lies more with enforcement and interpretation than the insufficiency of current law itself.
Impact on Casual Sellers: The rule may inadvertently affect casual sellers who do not see themselves as being in the firearms business. Individuals who sell a few weapons annually, potentially at a loss or without a direct profit motive, might find themselves subject to stringent regulatory requirements intended for more commercial operations. This could lead to legal challenges or demands for clearer guidelines on what constitutes "regular" and "profit-driven" selling activities.
Challenges in Implementation: Enforcing this rule could pose significant challenges. Defining and identifying who qualifies as "regularly" selling firearms for profit requires careful consideration and robust monitoring mechanisms.
Questioning Efficacy: The discourse around the new rule fails to analyze the behavior of those who are already circumventing federal requirements. If certain individuals are currently managing to avoid the stipulations of existing firearm regulations—either through loopholes, lax enforcement, or deliberate evasion—it stands to reason that simply redefining the terms under which sellers are classified may not effectively change their practices. These sellers will continue to find new ways to evade these regulations, undermining the rule's intended impact. Without addressing the root causes of non-compliance and improving enforcement mechanisms, the rule will not achieve its goal of significantly reducing unregulated firearm sales, but will have a very real impact on the peaceable people who have been, and will continue to do, the right thing.
The Bureau of Justice Statistics (BJS) Prisoner Survey indicates that a mere 0.8% of inmates incarcerated for firearm offenses acquired their guns at gun shows. This statistic suggests that while gun shows have often been demonized as a source for criminals to get guns without background checks, they are a statistically irrelevant source of firearms used in crimes.
Next steps:
The procedural steps for enacting a rule like the one proposed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to close the "gun show loophole" involve several stages in the rulemaking process under the Administrative Procedure Act (APA)2. Here are the general steps:
Notice of Proposed Rulemaking (NPRM): The agency publishes a notice in the Federal Register announcing the proposed rule. This notice includes details about the rule, its purpose, and the legal authority for its implementation. It also invites public comments.
Public Comment Period: After the NPRM is issued, there is a period during which the public, including individuals, businesses, and organizations, can submit comments on the proposed rule. This period typically lasts 30-60 days but can be longer or shorter depending on the rule's complexity and the urgency of the issue.
Review of Comments: Once the comment period ends, the ATF would review all submissions to consider concerns, suggestions, and evidence presented by the public. This process can take several months depending on the volume and complexity of the comments received.
Final Rule Issuance: After reviewing comments and making necessary revisions, the ATF would publish a final rule in the Federal Register. This publication includes a response to the public comments and an explanation of any changes made from the proposed rule.
Effective Date: The final rule typically has an effective date, which is the day when the rule becomes enforceable. This date is usually at least 30 days after the rule's publication to allow affected parties time to comply.
Possible Legal Challenges: After a final rule is issued, it may face legal challenges in court. Stakeholders who believe the rule adversely affects them or that the agency exceeded its authority may file lawsuits seeking to overturn the rule.
Recap:
The ATF's rule to redefine the criteria for who is engaged in the business of selling firearms and to expand background checks marks a significant, and potentially legally improper, regulatory shift aimed at closing loopholes in gun sales monitoring. While intended to enhance public safety, the rule raises questions about the effectiveness of current laws and the potential for overreach.
Federal Firearms License (FFL) Requirements: Under current U.S. federal law, specifically under the Gun Control Act of 1968 (GCA), individuals and businesses must obtain a Federal Firearms License (FFL) if they engage in the business of selling firearms. This includes those who manufacture, import, or deal in firearms as a regular course of trade or business with the principal objective of livelihood and profit through repetitive purchases and resales of firearms. Specifically, Title 18, Section 923(a) of the United States Code details the licensing requirements for persons engaged in such activities. This requirement does not generally apply to individuals making occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection, or those who do not rely on such activities as a primary source of income.
Rulemaking Process Under the Administrative Procedure Act (APA): The Administrative Procedure Act (APA) establishes the standard procedure for federal agencies in the United States to create and enact regulations. Under the APA, agencies must follow a formal process of rulemaking, which includes several key steps: issuing a Notice of Proposed Rulemaking (NPRM), providing the public with an opportunity to comment on the proposed rules, considering public feedback, and then issuing a final rule. The APA aims to ensure transparency and public participation in the regulatory process, allowing stakeholders to have input on the rules that may affect them. This process is codified under Title 5 of the United States Code, Section 553.