Recently, the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) announced proposed changes to the rules that determine whether a person is "engaged in the business" of selling firearms. On Wednesday, the Firearms Policy Coalition released its comments on the proposed changes.

“In present form the Proposed Rule fails to account for the clear charge of Congress and, instead, greatly expands ATF’s regulatory reach—while bearing criminal implications,” argues the comments. “More, the Proposed Rule unlawfully mandates different interpretations in civil and criminal case, foolishly imposes restrictions on personal arms possessed at an FFL’s location, fails to consider important sources, unconstitutionally prohibits anonymous comments, and fails to include a federalism summary impact statement. As a result, ATF must either abandon the current rulemaking or, at minimum, undergo significant revision of the Proposed Rule and allow for additional public review and comment.”

FPC's comments in their entirety can be seen here. The comments state in part:

In 2022, Congress enacted the Bipartisan Safer Communities Act (“BSCA”), Pub. L. 117-159, 136 Stat. 1313, which amended one portion of the (Gun Control Act of 1968) GCA’s definition of “engaged in the business,” in relevant part, as follows:
The term “engaged in the business” means—
. . .
(C) as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit to predominantly earn a profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms[.]

This is the current state of the law that authorizes the BATFE to write regulations, and it seems pretty clear; "shall not include a person who makes occasional sales, exchanges or purchases" clearly means any hobbyist, like many gun collectors and aficionados — like me, for example, although my favored pieces are almost all pre-WW2 and so my Type 03 "Curio & Relics" FFL applies; this is not true for all hobby buyers.

FPC goes on to comment:

Among other issues, the Proposed Rule fails to provide any bright-line rules for individuals to ascertain whether they are actually “engaged in the business” and instead claims that ATF will conduct a “fact-specific inquiry” under which “even a single firearm transaction” may suffice. 88 Fed. Reg. at 62,021 (to be codified at 27 C.F.R. § 478.11). This is not a rule, nor is it knowable to the average, reasonable person. And yet, this Proposed Rule suggests alterations to federal regulation that will bear the full force of criminal law. More, the Proposed Rule leaves complete and total discretion in the hands of ATF. When even a single sale can qualify a person as “engaged in the business,” ATF is clearly empowered to both “say what the law is” and to enforce said law.

As we see here, the BATFE's proposed rule change is ambiguous. Instead of laying out discrete guidelines for hobbyists and collectors to follow, the agency appears to be giving themselves wide latitude to carry out fishing expeditions against any gun owner for any reason; this is unacceptable. How would the BATFE define "predominantly earn a profit?" I've bought and sold many, many guns in the half-century or so I've been shooting and collecting, and I've never lost money on a gun; they tend to appreciate, especially the older guns I like to mess around with. But how do I establish that my purpose is not to "predominantly earn a profit?"

Does this not seem like a violation of the presumption of innocence?

Since the beginning, the Biden administration, which oversees the BATFE as part of the executive branch, has been decidedly unfriendly towards law-abiding gun owners. Their policy positions show they are profoundly ignorant of the design and nature of firearms themselves, and they aren't alone in that; Democrat politicians at the state level are likewise attempting to make up for their criminal justice failures by blaming legal gun owners. It's not surprising, then, that the BATFE seeks to implement such an unconscionable change in the rules that will accomplish little more than potentially making criminals of the law-abiding.

This is not a new thing. As far back as the Clinton administration, the BATF (as it was at that time) was cracking down on small, independent dealers. I would know — I was one at the time, having been a Type 01 Federal Firearms Licensee from about 1982 to 1995 when the BATF banned dealers without an "established storefront." That rule was relaxed some during the George W. Bush years, but every Democrat administration since has sought to crack down on small independent dealers, regardless of how law-abiding they were, regardless of how scrupulously they followed the rules. Again, I would know — I was very careful to cross every T and dot every I and was shut down anyway.

It remains to be seen what will come of the proposed rule and whether the FPC's comments will result in any changes. But as long as a Democrat sits at the Resolute Desk, there is reason for concern among law-abiding gun owners and Second Amendment advocates.