July 20, 2024

Major Issues with ATF’s New Unconstitutional “Engaged in the Business” Rule

The Biden Administration has fulfilled its promise to move America “as close to universal background checks as possible without additional legislation” with the latest unconstitutional ATF rule. The Definition of Engaged in the Business as a Dealer in Firearms rule would have disastrous consequences on the Second Amendment rights of American citizens across the nation, as well as putting people in jail for conducting private firearm transactions which are legal in 30 states.

Even a Single Firearms Sale or Offer to Sell a Firearm May Be a Federal Crime: Under the new rule, “[e]ven a single firearm transaction or offer to engage in a transaction, when combined with other evidence…may require a license:”[i]

The “evidence” to be combined with a single transaction can be as simple as a recently purchased firearm being sold within a month because of an emergency financial situation or accepting payment through a payment processor.[ii]

Any records showing the price of firearms, such as (1) a will, (2) insurance paperwork, or even (3) keeping receipts for tax purposes would also serve as evidence of criminal activity.[iii] These standards are a mockery of our judicial systems and not remotely close to any prudent burden of proof required by our courts.

Guilty Until Proven Innocent: Biden’s new rule would also reverse the conventional judicial process of innocent until proven guilty. ATF’s rule invents a set of situations in which they will automatically presume that a gun owner has committed a crime and is illegally either “engaged in the business” or has acted “predominantly to earn a profit.” If ATF discovers a gun owner has engaged in these presumptively unlawful actions, they will immediately treat the gun owner as guilty until the gun owner proves his or her innocence.

In its “benevolence,” ATF offers a limited number of rebuttals which a gun owner may raise in order to prove that they are innocent. Unfortunately, ATF will presume a gun owner guilty but they will not presume this conduct as automatically protected.

Finally, while ATF claims that these “rebuttable presumptions” as created by the rule are only for use in civil court, ATF also notes that they may be used as “permissive inferences” when instructing juries in criminal trials. Essentially, ATF wants to instruct juries that gun owners are presumptively guilty of illegally dealing in firearms in certain situations. For examples of completely lawful situations wherein a gun owner will find themselves presumptively guilty of violating ATF’s new rule, see our other fact sheet.

Tragically, the story of the late airport executive and gun owner Bryan Malinowski reveals exactly what will happen to gun owners who are presumed to be unlawfully dealing in firearms. Bryan was shot and killed by ATF agents during the execution of a mere search warrant to gather evidence on whether he had violated the law. The message to gun owners is clear: comply with Biden’s new rule or else.

[i] ATF 2022R-17F. Definition of “Engaged in the Business” as a Dealer in Firearms. Pg 458. Bureau of Alcohol, Tobacco, Firearms, and Explosives. 2024.

[ii] Gun Owners of America. The 5 Worst Parts of ATF’s New Rule. YouTube. May 3, 2024.

[iii] ATF 2022R-17F. Definition of “Engaged in the Business” as a Dealer in Firearms.  Pg 461. Bureau of Alcohol, Tobacco, Firearms, and Explosives. 2024.

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