Steve Dettelbach may have stepped down as ATF Director, but the rules he’s put in place during the Biden administration will remain in effect unless they’re formally undone by the Trump administration or thrown out by the federal judiciary. A group of 15 Democratic attorneys general, however, is fighting to keep some of those rules in place, including the ATF’s broad definition of who is “engaged in the business” of selling firearms.
The coalition is made up of attorneys general in New Jersey, Arizona, Colorado, Connecticut, Delaware, Hawaii, Maryland, Michigan, Minnesota, Nevada, North Carolina, Oregon, Rhode Island, Vermont, and Washington. They recently filed a request to intervene as defendants in a lawsuit challenging the “engaged in the business” rule promulgated by the ATF last year; an unusual step given that the rule is enforced by the federal government and not any of the states in question.
The anti-gun AG’s argue in their brief that “federal defendants can no longer be counted on to defend the Final Rule”, and allege that if the new rule goes away there would be “significant harms” in their states; ignoring the significant harms that stem from the rule itself.
The rule change was prompted by the passage of the Bipartisan Safety Communities Act, which broadened the definition of who is engaged in the business of dealing firearms to include those who’s “principal objective” when selling guns is “to predominantly earn a profit.” But the language of BSCA also specifies that a gun dealer is someone who “devotes time, attention, and labor to dealing in firearms as a regular course of trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms, but such term shall not include 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.”
According to the ATF, however, offering a single gun for sale could be evidence that someone’s engaged in the business of dealing guns, even if no sale actually takes place. The rule change was brought about by Joe Biden and his allies in the gun control lobby to get as close to “universal” background checks as possible without Congress passing an actual law to that effect, and goes far beyond the slight statutory change brought about by BSCA.
In their filing, the Democrat AGs maintain that “although the federal defendants were previously defending the Final Rule, there is little doubt that will now change: the President-Elect promised to rescind a series of ATF rulemakings during the 2024 presidential campaign, and cited this Final Rule explicitly.” Without intervention, they contend, their states “would have no party to represent their interests—and this Court would be deprived of any adequate defense of the Final Rule on the merits.”
There are two big problems with what these AGs are asking. First, just because they want that rule to remain in place, that doesn’t mean that they have the ability to defend a federal rule. If the state legislatures in any of these states wanted to adopt their own version of the ATF rule they could, and in fact some of these states already have “universal” background check laws in place. It’s the federal government’s job to defend federal rules, and if a new administration decides that the rule isn’t worth defending states there’s no reason for states to automatically be allowed to intervene. States can be the primary challengers of federal statutes, but it’s legally absurd for them to be the primary defenders.
The main issue for the AGs, however, is the fact that there’s nothing stopping Trump from rescinding the rule and mooting the current lawsuit that was brought by the attorneys general of 21 states and several individual plaintiffs. This is a rule, not a law passed by Congress, and Trump can take steps to undo Biden’s actions as soon as he’s sworn in. It might take some time for the rule to formally be rescinded, but Trump can also instruct acting ATF Director Marvin Richardson to enforce the previous “engaged in the business” rule instead of the one that was adopted by Biden at the bequest of the gun control lobby.
The brief of the Democrat AG’s is essentially a dozen page of “this isn’t fair!” couched in legalese, and it should be summarily rejected by the federal judge overseeing the lawsuit. Hopefully, though, the Trump administration undoes the rule before even has the opportunity to weigh in.
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