ATF Skirts Legal Formalities and Springs Another Gun Control Rule on the American People

Gun Rights

On Friday, ATF provided the unpleasant surprise of yet another rulemaking to implement the noxious Bipartisan Safer Communities Act (BSCA). The move came even as Second Amendment advocates were still parsing last week’s voluminous (and illegal) “engaged in the business” rule, under which ATF is seeking to move America toward the gun controllers’ Holy Grail of “universal background checks.” ATF is trying to pass off its latest effort as a so-called “direct final rulemaking,” which would give it the ability to skirt otherwise applicable requirements of the Administrative Procedures Act (APA). But whether the rule actually qualifies for this pared down, expedited process is still an open question. Careful analysis and well-drafted comments have the potential to stop ATF’s latest rule in its tracks.   

Friday’s rule is entitled “Bipartisan Safer Communities Act Conforming Regulations.” It seeks to supplement existing federal gun control regulations with definitions and procedures ATF claims are necessitated by the BSCA. Beyond dealer licensing requirements, the subject of ATF’s first BSCA rule, the BSCA made a number of far-reaching changes. These include expanding the prohibitor for so-called “misdemeanor crimes of domestic violence;” creating new crimes for straw purchases of firearms; providing for “enhanced” background checks for firearm purchasers under age 21; and doling out grants for state “red flag” laws.

We have already seen how the Biden administration is stretching the law to its breaking point, and beyond, in implementing the new background checks, red flag provisions, and dealer licensing requirements. But ATF is insisting its latest rule is merely a “non-controversial” “mirroring” of statutory language that allows it to skip the usual APA requirements of advanced notice, comment on the proposed rule, and written responses to substantial comments. According to ATF: “because this rulemaking is limited to directly incorporating statutory provisions, which can already be enforced absent this rule, notice and comment on this rule is unnecessary and not practical ….” This is the bureaucratic equivalent of, “Move along, folks. Nothing to see here.”

Maybe. Maybe not.

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Typical of ATF, however, the agency is also hedging its bets by providing a 30-day comment period, which ends on May 20, 2024. In the absence of “significant adverse comment,” the rule will take effect as written on July 18, 2024. What constitutes a significant adverse comment will be up to the ATF to decide. There are, however, some guidelines as to what might qualify.

Two things that WON’T qualify are complaining about the passage and policy of the BSCA and berating ATF for its involvement in enforcing the law. The Biden administration has repeatedly deflected criticisms about its overreaches under the BSCA by primly claiming that it is merely performing its duty of executing a law passed by Congress. And whether or not ATF knows or cares that much of the gun-owning public holds it in low esteem, reminders of that fact will not change its mind when it comes to efforts of this sort.

What might change its mind are succinct, clearly written comments explaining how the language of the rule materially deviates from or adds to the wording of the underlying statutes or how ATF’s process in coming up with the rule was flawed or omitted important considerations.

The NRA’s own analysis of the rule is ongoing. It is true that in many cases the rule simply copies language from the underlying statutes. But that is not invariably the case. In one instance, for example, the rule adds a statement about the automatic restoration from the prohibitor for “misdemeanor crimes of domestic violence” involving so-called “dating relationships.” Under the statute, this prohibition expires in five years, absent additional disqualifying circumstances. While noting this fact in its regulation, ATF added an editorial comment not present in the underlying legislation, stating that this restoration “only removes the disqualification from shipping, transport, possession, receipt, or purchase of a firearm under this part.”

Why ATF did this is not explained. But it was not necessary to implement the statutory language and seems designed to telegraph the Biden administration’s own desire for states to implement similar, stricter versions of the prohibitor under their own laws. Nevertheless, the manifest intent of the BSCA was that this new prohibitor would be limited in time, unless the subject reoffended. It would be strange for Congress to want to limit its duration under federal law, and then invite states to deviate from this policy under their own laws.

The rule also omits another important limitation on the new “dating relationship” prohibitor, i.e., that convictions that occurred before the date of the BSCA’s enactment don’t count. Why ATF would fail to recognize this material point is unclear and could lead to confusion and misapplication of the law, as case law on other types of “misdemeanor crimes of domestic violence” does allow for retroactive application.

There may well be other points worth raising in connection with the new rule. Comments may be submitted electronically via the Federal eRulemaking portal at https://www.regulations.gov/commenton/ATF-2024-0001-0001. The Federal Register notice additionally contains information about submitting comments by mail, if desired. The quickest and surest way to submit comments for consideration, however, is electronically.

The NRA will continue to provide updates on the implementation of the BSCA and any significant developments pertaining to the new rulemaking. It is apparent that the Biden administration will find or create any pretext under the law to crack down on gun owners and businesses in the firearm industry. Ongoing vigilance will be needed to counteract these efforts.

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