HELENA – Montana Attorney General Austin Knudsen led a coalition of 21 attorneys general in filing a lawsuit against the Biden administration’s unconstitutional attack on American’s right to keep and bear arms which threatens to criminalize law-abiding citizens for selling a single firearm for profit unless the seller obtains a federal license.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rule, “Definition of ‘Engaged in the Business’ as a Dealer in Firearms,” violates the Second Amendment by making any individual who sells a firearm, even to a family member, without a federal license liable to civil, administrative, or even criminal penalties.
“This is another attempt by the Biden administration to criminalize law-abiding Montanans for exercising their right to keep and bear arms,” Attorney General Knudsen said. “I will continue to stand up for our Second Amendment rights and fight the federal overreach coming out of Washington.”
The rule defines “dealer” as anyone who “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.” It also expands the definition of earning a profit to be determined by something other than money to include personal property, a service, another medium of exchange, or valuable consideration and would not even require a firearm to be sold, just an offer would engage in a transaction.
“Until now, those who repetitively purchased and sold firearms as a regular course of business had to become a licensee… This rule would put innocent firearm sales between law-abiding friends and family members within reach of federal regulation,” the lawsuit states. “Such innocent sales between friends and family would constitute a felony if the seller did not in fact obtain a federal firearms license and perform a background check.”
The Biden administration made no attempt to comply with the Second Amendment in the rule. While longstanding regulations of large commercial enterprises that sell firearms might be consistent with the Second Amendment, that is not what this rule does as it seeks to require a license of every individual who sells a firearm for anything the ATF sees as a profit.
The Supreme Court of the United States made it clear in their ruling on New York State Rifle & Pistole Ass’n Inc. v. Bruen that if the Second Amendment “covers an individual’s conduct,” any burden on that conduct is presumptively unconstitutional and only showing historical tradition, which the Biden administration cannot show in this case, can overcome that presumption.
Additionally, many courts have held the ability to buy a firearm is encompassed in the right to keep a firearm, which is guaranteed to Americans in the Second Amendment. Therefore, the ability to sell a firearm, which also necessarily implicates the right to buy one, to someone else is also protected by the Second Amendment.
Not only is the rule unconstitutional, but it is also arbitrary and capricious and is unlawful under the Administrative Procedures Act (APA). While the ATF claims the rule builds on the Gun Control Act of 1968, it violates the GCA’s “letter and spirit” as it “renders anyone that the Department identifies to be selling a firearm for profit a firearms dealer.” And while there are a few exceptions (like sales of firearms to family members), they can still lead to absurd implications.
Attorneys general from Alabama, Alaska, Arkansas, Georgia, Indiana, Idaho, Missouri, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Virginia, West Virginia, and Wyoming also joined the lawsuit co-led by Kansas and Iowa.
Click here to read the lawsuit.
Attorney General Knudsen led a coalition of attorneys general in sending formal comments to the Biden administration opposing the rule changes in December.
