Lawrence Person's BattleSwarm Blog

After the U.S. Department of Justice (DOJ) proposed a new rule expanding federal firearm license (FFL) requirements, the Office of the Texas Attorney General and Gun Owners of America filed a joint lawsuit challenging the rule, and on Sunday secured a federal court order blocking the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) from enforcing the rule against certain plaintiffs.

The DOJ claimed the rule was to help implement the Bipartisan Safer Communities Act (BSCA) authored by Sen. John Cornyn (R-Texas), but critics, including Cornyn, say the Biden administration violated the law and the Constitution in proposing the rule.

The rule has prompted Cornyn to file a resolution of disapproval in the U.S. Senate seeking to strike it down legislatively.

Under the rule, gun owners would be forced to obtain an FFL and perform background checks before selling firearms in a wide range of new circumstances, including if they rented a table at a local gun show.

However, the court order by Judge Matthew Kacsmaryk compares the language of the BSCA against the new rule, highlighting how FFL requirements evolved from the original statute contained in the Firearm Owners Protection Act (FOPA) of 1986 to the current statutory language in the BSCA, and finally compared that to the new rule.

The FOPA required those “engaged in the business” of dealing firearms to have an FFL. It defined such persons as one “who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”

The BSCA changed the “engaged in the business” definition, broadening it by eliminating the requirement that a person’s “principal objective” of purchasing and reselling firearms must include both “livelihood and profit,” by shortening the requirement to just someone who predominantly earns a profit, Kacsmaryk explained.

He also noted the BSCA did not alter an existing exemption for 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.”

Kacsmaryk wrote the new rule likely violated statutory laws in several ways, beginning with the requirement that a person who sells a single firearm or discusses selling a firearm could be subjected to licensure requirements under the rule conflicts.

Another provision he said likely runs afoul of the BSCA is the prohibition of firearms obtained for personal protection from being counted among the guns a firearm owner may sell from their personal collection.

“Nothing in the foregoing text suggests that the term “personal collection” does not include firearms accumulated primarily for personal protection — yet that is exactly what the Final Rule asserts,” Kacsmaryk wrote, adding the DOJ’s defense of that provision is “untenable.”

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

en. John Cornyn (R-Texas) took up two pieces of Second Amendment-related legislation last week, filing a resolution of disapproval aiming to shoot down a proposed rule by the Biden administration to require federal firearms licenses (FFL) for most private gun sales, and a separate bill seeking to relax taxes imposed on firearms regulated under the National Firearms Act (NFA).

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) proposed a rule that greatly expands the circumstances in which someone is required to hold an FFL in order to sell a firearm, and when someone must conduct a background check on a potential buyer.

In proposing the rule, the Department of Justice (DOJ) said its purpose was to finalize the implementation of the Bipartisan Safer Communities Act (BSCA), legislation authored by Cornyn that passed in 2022. However, Cornyn says the rule violates congressional intent.

The rule would greatly expand upon the circumstances in which someone is required to obtain an FFL, including if they rent a table at a gun show, make firearm purchases in an amount that exceeds their reportable income for a specific period of time, create records that track profits and losses from firearm sales, or any combination of a litany of details that could result in requiring a license.

According to Cornyn, the BSCA was motivated after the mass shooting at Robb Elementary School in Uvalde that killed 19 children and two teachers. He also provided the mass shooting in Odessa as an example of what the bill was intended to prevent.

Addressing media questions regarding the resolution, Cornyn pointed out that the Odessa gunman was known to suffer from mental illness. He obtained the rifle used in the city-wide shooting spree from a Lubbock man who was purchasing bulk rifle parts from the internet, which he would assemble into functional rifles and sell as part of a regular business.

The man who sold the AR-15-style rifle to the Odessa gunman, Marcus Braziel, was convicted of acting as an unlicensed firearm dealer and failing to conduct a background check that would have prevented the sale of the rifle.

“Those making a living or profit for a business motive was the focus of the law, not those casually buying or selling their personal guns,” Cornyn told reporters.

“This rule is proof that the Biden administration is a dishonest broker, and Congress must hold it accountable for its actions in favor of its gun-grabbing liberal base over the Constitutional rights of law-abiding Americans,” Cornyn added in a statement on the resolution.

The resolution currently has 45 co-sponsors in the Senate.

Bob Barr representing the Old Guard did win the Presidency. The vote was 37-30. Then the surprises began. Bill Bachenberg from the reform slate went head to head with Blaine Wade for 1st VP and won 36-31. Following that, reformer Mark Vaughan, president of the Oklahoma Rifle Association, beat Tom King 35-31. King really represented the Old Guard and his defeat was a sea change in attitude on the Board.

Second, and what I consider the biggest surprise, Doug Hamlin, Executive Director of Publications and the reformer’s choice for EVP, beat Ronnie Barrett for EVP/CEO. There is some talk that Hamlin is intended as an interim choice while a nationwide search is conducted.

The excessive power that Wayne LaPierre gathered to the Executive Vice President position is part of the problem with the office, and is what let LaPierre turn the NRA into his own personal fiefdom. A lot of that should be stripped away and returned to the board.