HELENA – Montana Attorney General Austin Knudsen led a coalition of 26 attorneys general in opposition to the Biden administration’s shocking and unconstitutional attack on American’s right to keep and bear arms that could criminalize law-abiding citizens for selling a single firearm for profit unless the seller obtains a federal license.
The attorneys general submitted a formal comment letter Thursday to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regarding its proposed rulemaking, “Definition of ‘Engaged in the Business’ as a Dealer in Firearms.” The proposed rule is unconstitutional, violating the Second Amendment by making any individual who sells a firearm without a federal license liable to civil, administrative, or even criminal penalties.
“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,” Attorney General Knudsen said. “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 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.
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 recent 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 a 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.
“In America, it should be legal for a family member to sell a firearm to another family member without risk of prosecution. But the exception is flawed,” the letter states. “Reading the exception, one can conclude that if a family member sells another family member a firearm for as little as one dollar more than the original purchase price, that seller could be open to civil, administrative, or criminal liability. That absurdity risks hurting innocent people and chilling law-abiding behavior.”
Rather than focusing on its job to arrest, investigate, and aid in prosecuting violent criminals using firearms to terrorize communities across the nation, the ATF is using the proposed rule to criminalize law-abiding Americans.
“If the Bureau was serious about combatting violent crime, it would focus on enforcing the laws that are already on the books to hold violent criminals accountable for their actions. That would be the type of work that could save lives.,” the attorneys general wrote.
Attorneys general from Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming joined the letter led by Attorney General Knudsen, Kansas Attorney General Kris Kobach, and Iowa Attorney General Brenna Bird. Additionally, the Arizona legislature joined the letter.
Click here to read the letter.
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