ATF FFL Definition Expansion Isn’t Just Unconstitutional. It’s Unfeasible

Opinion By Larry Keane

Executive Orders Rule Regulation Red Tape

The Biden administration is forcing the federal agency charged with overseeing the strictly-regulated firearm industry to tighten a vice grip on private gun owners, claiming if they privately sell guns and offer to sell more, they’re “engaged in the business.”

This is just the latest salvo from President Joe Biden, who declared from the debate stage in 2019 that the firearm industry is “the enemy.”

Now, as the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is snuffing out firearm retailers at a record pace due to an unrelenting attack of historically-high firearm license revocations under the guise of its “zero-tolerance” policy, the administration has unilaterally proposed an expansion of the definition of who is required to obtain a dealer’s license and therefore run a National Instant Criminal Background Check System (NICS) verification to transfer a firearm.

Recall failing to obtain a dealer’s license when required by law is a crime.

This latest gambit does more than exceed the ATF’s statutory authority. It’s an unfeasible requirement. There is no way ATF could keep up with another 328,000 federal firearm licensees.

President Joe Biden continues to barrel around Congress to generate unconstitutional laws when Congress stands against him trampling on citizens’ rights. That’s after conceding he’s powerless to do anything without Congressional action.

Unilaterally Making Law and Criminals

U.S. Attorney General Merrick Garland announced the proposed rule that would redefine who qualifies as “engaged in the business” and would require a federal firearms license (FFL) and run a NICS background check when selling or transferring a gun, as well as to maintain all the required records and paperwork. This is a thinly veiled attempt to create a universal background check scheme – which even the Department of Justice (DOJ) has admitted would necessitate a federal firearm registry to work. That’s forbidden by federal law.

The irony is Congress clarified the “engaged in the business” definition in the Bipartisan Safer Communities Act (BSCA). Congress made a one-word change to the “engaged in the business” definition by removing the word “livelihood” the courts had effectively read out of the statute. The law still defines a firearm dealer as “a person who devotes time, attention and labor to dealing in firearms as a regular course of trade or business 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.”

There wasn’t a need for the administration to publish 108 pages to clarify a definition that was just updated unless the administration is attempting to snatch away Second Amendment rights from Congress and “The People.”

Yet, the Biden administration is overreaching, claiming they have orders from Congress when they clearly don’t.

“This proposed rule implements Congress’s mandate to expand the definition of who must obtain a license and conduct a background check before selling firearms,” AG Garland said.

The proposed rule, subject to public comment and final approval, would require any individual selling firearms online or at gun shows to be licensed and run background checks before completing the transaction, according to Fox News. The Associated Press reported that ATF estimates the proposed rule sweeps up as many as 328,000 private citizens.

Congressional Brushback

In a move not unique to this administration, the Biden administration’s legal contortions of the BSCA have gone over like a lead balloon. The proposal strains under its own weight, and Congress is brushing back the administration.

“This language is tailored towards individuals regularly selling guns to strangers with the predominant motive of making money through a side business, like the person who sold the Midland shooter his weapon, and it is drafted in such a way that prosecutors will need to prove specific intent on the part of the unlicensed seller,” said officials at U.S. Sen. John Cornyn’s (R-Texas) office. “The Biden admin should expect for this rule to be struck down because it is unconstitutional.”

Sen. Joni Ernst’s (R-Iowa) staff said any efforts to move beyond the previous boundaries for licensing would go against Congress’s intent.

“President Biden is twisting the law to fit his liberal gun-grabbing agenda,” the senator’s staff told media. “His administration’s latest attack on lawful gun owners clearly oversteps both the intent and the text of the law, at the expense of the average gun seller. Senator Ernst has repeatedly defended FFL holders and will continue to stand up against the Biden administration’s attack on Second Amendment rights.”

Focus on Criminals

The unilateral expansion of the firearm dealer definition is unconstitutional and a violation of the Administrative Procedures Act (APA) that will be struck down by the courts. It is also a misallocation of valuable resources and time that should be devoted to going after criminals who willfully break the law. ATF enforcement efforts shouldn’t be used to track down a firearm hobbyist who sells an occasional firearm or an uncle who gifts a cherished hunting rifle to his niece. Gunsmithing and building firearms at home, of course, have been common hobbyist activities since before the country was founded.

Expanding the dealer definition means ATF would now be charged with monitoring and requiring registration of up to 328,000 Americans it now deems as “firearm dealers” even though they only make occasional firearm sales, exchanges, or purchases for the enhancement of a personal collection or a hobby, or who sells all or part of a personal firearm collection. Congress did not change the requirement that to be a “dealer,” a person must devote time, attention, and labor to dealing in firearms as a regular course of trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms. The agency’s workload already appears strained enough. The ATF already conducted 6,609 inspections of federal firearms licensees – starting on Oct. 1. That’s close to 2022’s total of 7,502 for the entire year. More sobering is that license revocations are already at 122. There were 92 for all of FY 2022.

For the actual regulated industry NSSF represents, the drain on ATF resources to implement this proposed rule will grind legitimate commerce to a halt. ATF will be unable to provide necessary customer service to the industry, like processing import permits, forms for making and transferring suppressors and classification determination on new products. The firearm industry will go from zero tolerance to zero lawful, Constitutionally-protected commerce – perhaps an ulterior motive behind the rule.

Ironically, during the Clinton administration gun control groups, chiefly Handgun Control Inc. (now renamed Brady United), complained bitterly that there were too many “kitchen table dealers” and that ATF did not have the resources to inspect and license them all. It seems the gun control lobby can’t make up their mind and have done a complete about face on this issue.

President Biden abuses the Constitution and executive authority by wielding ATF like a sledgehammer against law-abiding gun owners, turning them into criminals overnight. He’s making and redefining law when Congress explicitly has chosen not to. The proposed rule is clearly an unconstitutional attack on lawful gun ownership.

About The National Shooting Sports Foundation

NSSF is the trade association for the firearm industry. Its mission is to promote, protect and preserve hunting and shooting sports. Formed in 1961, NSSF has a membership of thousands of manufacturers, distributors, firearm retailers, shooting ranges, sportsmen’s organizations, and publishers nationwide. For more information, visit

National Shooting Sports Foundation