Case Challenging the ATF’s New FFL Rule Challenged in Texas

In the Federal Northern District of Texas Court, Gun Owners of America (GOA), Gun Owners Foundation (GOF), Virginia Citizens Defense League (VCDL), Tennessee Firearms Association (TFA), Texas, Louisiana, Mississippi, and Utah are suing the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) over its new rule that would require thousands of Americans to get a federal firearms license (FFL) to sell their guns.

“ATF, with prodding by the Biden administration, has declared war on gun ownership by making it legally dangerous to sell even a single personally owned firearm,” said Philip Van Cleave, President of VCDL. “We cannot turn a blind eye and let the government threaten our Second Amendment rights. The ATF’s actions are clearly unconstitutional, overly broad, and capricious, and we will get this settled in court.”

For years, Democrats have pushed for universal background checks but have failed to pass a law through Congress. President Joe Biden did manage to get Congress to pass the Bipartisan Safer Communities Act (BSCA) with some Republican support from the likes of John Cornyn (R-TX). The law changed the definition of a gun dealer from someone who sells a gun with the “principal objective of livelihood and profit” to someone who “predominantly earns a profit.”

Because of this small change, the ATF claims that Congress delegated the authority to the Bureau to change the rules around private gun sales. Things like advertising your gun for sale on the internet or attaching a sign to it at a gun show would now require an FFL. Even if a person were only selling a single firearm, they would need an FFL. Although some Republicans who backed the bill claimed to be shocked by the ATF’s actions, many in the gun community predicted the ATF’s changing of the rules before the bill was even passed. Many gun owners wonder if the bill’s Republican backers are actually surprised or if they are just doing damage control.

“We warned the American public that this legislation brokered by Senator Cornyn was no small compromise, and here we are today filing our second lawsuit challenging a major policy derived from that anti-gun law,” said Erich Pratt, Senior Vice President of GOA. “Criminalizing untold numbers of Americans for simply selling a firearm in a private party transaction is wrong, unconstitutional, and must be halted by the courts. Anything less would further encourage this tyrannical administration to continue weaponizing vague statutes into policies that are meant to further harass and intimidate gun owners and dealers at every turn.”

The plaintiffs claim that the rule violates the Second Amendment and runs contrary to the Gun Control Act of 1968 (GCA) because the statute is unambiguous about who is a gun dealer. They claim that the ATF is trying to clamp down on the rights of American gun owners to acquire and dispose of personal firearms. The ATF, under the Biden administration, has made multiple anti-gun rules during the senior citizen’s time in office.

In addition to the Second Amendment claim, the plaintiffs also argue that the government is violating the Fourth Amendment rights of gun owners. Because FFLs must allow for the ATF to conduct warrantless and unannounced inspections, it would mean that anyone forced to get an FFL under the new rule must allow the ATF to search their home.

The plaintiffs also claim that the new rule violates the Fifth Amendment and its Due Process Clause. The rule doesn’t have the presumption of innocence. In fact, the ATF will presume a person is in the business of selling a firearm unless that gun owner can prove otherwise, shifting the burden of proof to the defendant.

The coalition also believes the rule violates the separation of powers. Congress has the ability to make laws. Although government agencies can interpret a law when it is unclear, they cannot change it. The plaintiffs claim that there is nothing ambiguous about who is a firearms dealer, and the ATF is overstepping their authority when it made this rule to meet a political goal.

“Yet again, Joe Biden is weaponizing the federal bureaucracy to rip up the Constitution and destroy our citizens’ Second Amendment rights,” said Ken Paxton, Texas Attorney General. “This is a dramatic escalation of his tyrannical abuse of authority. With today’s lawsuit, it is my great honor to defend our Constitutionally protected freedoms from the out-of-control federal government.”

The plaintiffs claim that the ATF violates the Administrative Procedures Act (APA) for many reasons. One reason cited is that the rule is going into effect 30 days after publishing to the federal registry. The standard that the ATF has been using is 120 days. The plaintiffs surmise the ATF chose this compressed timeline to prevent a legal challenge. If the legal challenge fails, the rule will take effect on May 20.

The plaintiffs are asking for a temporary restraining order, preliminary injunction, or an administrative stay on the rule until the merits of the case can be heard in a court of law. Florida has also filed a similar case today.

About John Crump

John is a NRA instructor and a constitutional activist. Mr. Crump has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.