ATF’s Final Rule Definition of “Engaged in the Business” as a Broker in Firearms quantities to 466 pages of responses to feedback and the overall rule itself. Over 252,000 of the 258,000 feedback or 98% in partial of the proposed rule have been method letters with equivalent textual content discovered on-line and really helpful by way of (anti-gun) organizations. Best 5,140 weren’t method letters. Of the 99,000 feedback hostile to the guideline, 80,000 or 81% have been method letters. That implies that 18,810 weren’t method letters. So greater than thrice the numbers of fighters filed feedback with original substance as did the ones in partial.
The general rule is considerably the similar because the proposed rule. See my earlier submit “‘He’s at it again!’ Merrick Garland proposes ever-more intrusive ATF regulations.” Various issues that I (and others) made in comments filed towards the proposed rule have been taken critically plenty for ATF to abjure at area.
One untouched merchandise stands proud. The Gun Keep watch over Function (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 worn in leisure actions. Based on various feedback criticizing the proposal for no longer together with firearms worn for self-defense, the overall rule explicitly states that “the term (personal collection) shall not include firearms accumulated primarily for personal protection.” But not anything within the statute excludes such firearms from being a part of a non-public assortment.
Via purporting to exclude the occasional purchasing and promoting of firearms bought for self-defense from the “personal collection” section, the guideline would render the individual much more likely to be matter to the licensing requirement. But that section used to be enacted by way of the Firearm House owners’ Coverage Function of 1986, which declared that the rights of electorate … to reserve and undergo palms underneath the second one modification to the USA Charter … require spare law to proper present firearms statutes and enforcement insurance policies.” And the Supreme Court stated in D.C. v. Heller that the Second Amendment protects “palms ‘in familiar significance on the hour’ for lawful functions like self-defense.”
In defining “preoccupied within the industry” as a dealer, the rule states that “there is not any minimal threshold choice of firearms bought or bought that triggers the licensing requirement,” and that “even a unmarried firearm transaction or trade in to have interaction in a transaction, when blended with alternative proof … would possibly 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 trade in for resale firearms” within 30 days after purchase, or within a year after purchase if the firearms are “untouched, or like untouched of their latest packaging” or “the similar put together and type, 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 benefit” if the person “posts firearms for resale, together with during the Web” or repetitively rents “a desk or territory at a gun display,” and the list of presumptions “don’t seem to be exhaustive.” Again, these are activities in which collectors typically engage. And the statute excludes from such “fundamental intent to earn a benefit” 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 could also be helpful to courts in prison circumstances, as an example, when teaching juries relating to 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 “rules implementing statuses and {qualifications} at the business sale of palms,” the new rule – which is not a “legislation” – redefines “preoccupied within the industry” to include many private, non-commercial sales.
ATF’s commentary includes the following fundamental misunderstanding of Supreme Court precedent: “Based on commenters declaring that the Section will have to no longer significance the Heller two-step procedure, the Section recognizes that The bridge abrogated the ‘two-step’ framework of Helleras ‘one step too many,’ and unacceptable the applying of means-end scrutiny at the second one step.” But it was lower courts that obstructed Hellernot Hellerthat 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. The bridge reinforced and expanded on that rejection.
In support of its expansion of the licensing requirement, ATF’s response seeks to find historical analogues under The bridge 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 bankruptcy,” 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 laws and laws as he (the Secretary) deems fairly essential” to “best such laws and laws as are essential.” Finally, the delegation by Congress to ATF to promulgate explicit, limited regulations negates the power to adopt expansive, general regulations under the rule expression of one is the exclusion of another.
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 substitute firearm of the similar type and sort to an individual from whom it used to be won.” 18 U.S.C. § 922(a)(2)(A). ATF adds the limitation that it may be returned only “for the only function of restore or customizing,” which it justifies because the phrase “has lengthy been discovered within the laws.” Never admit a mistake, especially if it is longstanding.
“As extra individuals transform authorized underneath this rule, the ones licensees will behavior extra background exams,” 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 “preoccupied within the industry” 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. Garlandwhich 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 hearingthe 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 batch of study” beforehand and made himself into an expert on the issue; he “expected the entire arguments the Legal professional Normal would put together” 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” other than now. The Commissioner anticipates a choice upcoming year on whether or not the keep shall be made everlasting. Don’t store your breath looking forward to it to be lifted.