ATF private gun sales FFL rule defeated in Texas district court

by John Crump

6:00am Tuesday, May 21, 2024

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) suffered another defeat in a federal Texas district court. This time, U.S. District Judge Matthew J. Kacsmaryk issued a temporary restraining order (TRO) against the ATF. This ruling prevented the bureau from enforcing its new rule on who needs a federal firearms license (FFL) to sell a gun. The TRO applies only to members of Gun Owners of America (GOA), Tennessee Firearms Association (TFA), and Virginia Citizens Defense League (VCDL).

The gun rights groups, along with Texas, sued the ATF over a new rule that many called back-door universal background checks. The ATF’s final rule made it so almost anyone selling a firearm would need an FFL. The mere act of advertising your gun for sale was enough for the ATF to decide that you are in the business of selling firearms.

Related story: Senate joint resolution would block ATF 'engaged in the business' rule

The rule saw a lot of pushback because it was constitutionally dubious. The ATF’s default position is that someone is “engaged in the business” of selling firearms unless they can prove otherwise. This removes the burden of proof from the ATF and puts it on the gun seller. The plaintiffs claim it violates the seller’s rights because it takes away their presumption of innocence.

The ATF claimed that Americans shouldn’t fear being prosecuted criminally or civilly by the Federal Government. The judge rejected the ATF’s “just trust us” statement and said Americans have a reasonable fear that the ATF might prosecute them for violating the new rule. This is one of the reasons the judge believes that the plaintiffs are likely to succeed on the merits of the case.

“Plaintiffs understandably fear that these presumptions will trigger civil or criminal penalties for conduct deemed lawful just yesterday,” the judge wrote.

One of the organizations that sued was GOA. The gun rights group celebrated the victory and foresees the rule eventually being struck down in the courts.

“President Biden and his anti-gun administration have aggressively pursued an agenda meant to harass, intimidate, and criminalize gun owners and dealers at every turn,” said Erich Pratt, GOA senior vice president. “This ruling is a compelling rebuke of their tyrannical and unconstitutional actions that purposely misinterpreted federal law to ensure their preferred policy outcome.”

“We will continue the fight to ensure that this administration never succeeds in their goal of building a comprehensive database of firearm transaction records, which this rule would have been critical to accomplishing,” he continued.

The other organization party to the lawsuit was the Virginia Citizen Defense League (VCDL). Philip Van Cleave, VCDL President, had this to say about the court victory:

“If the ATF would simply protect the rights of America’s gun owners instead of attacking those rights, we wouldn’t have to go to court. The government is our servant, not our master, and sometimes we’re forced to remind them of that.”

Texas Attorney General Ken Paxton also took the opportunity to celebrate the victory over the Biden administration’s anti-gun agenda. He believes the president is trying to “nullify the Second Amendment.”

“I am relieved that we were able to secure a restraining order that will prevent this illegal rule from taking effect,” said Paxton. “The Biden Administration cannot unilaterally overturn Americans’ constitutional rights and nullify the Second Amendment.”

Although the TRO applies only to members of GOA, VCDL, TFA, and people in Texas, the rule will be challenging for the ATF to enforce against everyone else. The gun rights organizations do not have to share their membership list with the ATF, meaning the bureau doesn’t know who is and isn’t a member of these organizations, making it almost impossible to target nonmembers. A similar situation arose after organizations received injunctions preventing the ATF from enforcing the pistol brace rule. Before a nationwide injunction was issued, the ATF was unable to implement the rule because it could not determine who was shielded by the injunction or not shielded.

The TRO will run through June 2. At that time, the judge will decide whether to issue a preliminary injunction and the extent of who will be protected by the order.

Republished with permission from AmmoLand.