OPINION:
President Biden’s Bureau of Alcohol, Tobacco, Firearms and Explosives is at it again. In its relentless campaign to prevent law-abiding Americans from owning guns, the rogue agency has repeatedly gone beyond the limits of the law. This week I will lead a coalition of Republican attorneys general suing to stop the ATF’s latest unlawful regulation.
The ATF’s latest regulation is arguably the worst of all. The recently established rule is an effort to do an end run around Congress and close the so-called gun show loophole without Congress having to pass a law. But the ATF regulation will go far beyond gun shows, stopping everyday Americans from buying, selling and trading firearms with one another. The new rule does this by redefining what it is to be engaged in the business of selling guns. The new definition is so broad that millions of Americans will be swept in without knowing it.
Law-abiding citizens who fail to get a federal firearms dealer license and conduct a background check when they sell or transfer a firearm for a “profit” (no matter how small) could face felony charges under the new regulation.
For as long as this country has existed, individual, law-abiding Americans have sold guns to family and friends. The ATF’s new regulation will make it extremely difficult to do so. Consider a few examples, some of which come from experience:
Let’s say an older friend of your family dies, and his widow asks if you’d like to buy one of his shotguns. She offers a price that seems reasonable, and you don’t want to haggle with a family friend who just lost her husband. It turns out that you paid a few dollars more than the current market value of that used gun. The widow has likely committed a felony because she sold a gun for profit without first obtaining a federal firearms dealer license and running a background check on you.
Or suppose you buy a handgun after reading reviews of it. But when you actually try it out and fire a box of ammunition through it, you decide that it’s not a good fit for you. Fortunately, your neighbor sees your gun and asks if she could buy it from you at the same price you just paid for it. Relieved, you sell it to her. Under the new ATF rule, however, you have committed a felony because you made a “profit” by selling a slightly used gun for the price of a new gun.
Or say you and a friend purchase new shotguns and go hunting together. After trying each other’s new shotguns, you decide to trade. The person who purchased the less expensive gun just made a profit, and now he has committed a felony in the ATF’s view.
Finally, suppose you have an agreement with your spouse that you can’t buy a new gun without selling one of your old ones. You do this once or twice, and now the ATF regards you as a gun dealer who is restocking his collection. Because you don’t have a dealer’s license, you’ve committed a felony.
In each of these cases, you are presumed to be a firearms dealer unless you can prove otherwise to the ATF.
If anyone thinks the ATF will look the other way when learning of these examples of gun transfers, think again. The ATF has a long history of draconian behavior where law-abiding gun owners are concerned, especially since Mr. Biden has taken office. The ATF is the last agency that should be trusted to be reasonable.
In the last three years, Mr. Biden’s ATF has revoked the licenses of an unprecedented number of gun stores across the country for what amount to paperwork errors. Eight of them are in my state of Kansas. What in the past would have resulted in a friendly phone call and updated paperwork now results in the ATF shutting down the store. Mr. Biden’s ATF calls it a zero-tolerance policy. Expect the same extreme approach when it comes to enforcing the new ATF rule.
The new rule is not only unreasonable, it’s illegal. The ATF can do only what Congress empowers it to do. And Congress has already defined what it means to be engaged in the business of selling guns. The ATF has no legal authority to change that definition.
The ATF rule is also unconstitutional. The Second Amendment protects the right to keep and bear arms, and that right has long included the ability of Americans to acquire and sell arms to one another. In order for the ATF’s new rule to pass constitutional muster, the ATF must show that a similar rule was in existence at the time of our country’s founding. There is no such historical analog.
The opposite is true. The uninhibited sales and trading of firearms between citizens in the American colonies were essential to creating an armed citizenry capable of defeating the British. Indeed, in 1774, King George III blocked the import of all guns and ammunition into the colonies. The Second Amendment was later drafted to ensure that Americans would never again face such obstacles to obtaining and keeping guns.
Kansas, joined by other Republican state attorneys general, is suing Mr. Biden’s ATF to prevent the new rule from going into effect. In doing so, we will defend Americans’ Second Amendment right to keep and bear arms.
We look forward to seeing the president’s lawyers in court.
• Kris W. Kobach is the Kansas attorney general. Before that, he was a professor of constitutional law at the University of Missouri-Kansas City School of Law.
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