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Acoalition of Republican attorneys general and lawmakers from 27 states urged the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to strike its proposed gun-control rule, calling it an “arbitrary and capricious” violation of the Second Amendment.

Under the Notice of Proposed Rulemaking titled “Definition of ‘Engaged in the Business’ as a Dealer in Firearms,” which was signed by U.S. attorney general Merrick Garland on August 30, any person who sells a gun for profit to anyone else, including family members, would be considered “engaged in the business” of dealing in firearms. As a result, a private seller would be required under federal law to obtain a federal permit, conduct a background check, and complete gun registration paperwork before a transaction.
In a letter dated Thursday, Republican attorneys general Kris Kobach (Kan.), Brenna Bird (Iowa), and Austin Knudsen (Mont.) led the demand for immediate withdrawal of the ATF’s unconstitutional regulation, arguing that “the sale of firearms among individuals for profit is protected by the Second Amendment.”

“Although longstanding regulations of large commercial enterprises that sell firearms might be consistent with the Second Amendment,” as the Supreme Court decided in District of Columbia v. Heller in 2008, “that is not what this proposed rule does,” the letter read. “This proposed rule seeks to require a license of every individual who sells a firearm for anything the Department sees as a profit to include currency, exchange of another firearm, or a service.”

The attorneys general added that the ATF’s notice doesn’t explicitly reference the Second Amendment in the proposed rule; therefore, according to the letter, the federal agency had no intention “to comply with the Constitution” nor abide by the Supreme Court’s recent ruling on gun regulation.

In the 2022 decision of New York State Rifle & Pistol Association Inc. v. Bruen, the High Court overturned New York’s gun law that once required individuals to show “proper cause” when applying for a concealed-carry permit. As a result, any legal burden on an individual’s conduct is unconstitutional unless “the regulation is consistent with this Nation’s historical tradition of firearm regulation,” according to the Court’s opinion.

“The proposed rule doesn’t even attempt to do this,” the Republican prosecutors wrote on the last day of the proposal’s 90-day comment period. The ATF did not mention either Heller or Bruen in its notice.

The attorneys general also said the rule is unlawful under the Administrative Procedure Act, which instructs courts reviewing regulation to reverse any agency action shown to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” according to the act’s language.

In addition, the letter called the proposed rule “bad public policy” that attempts to criminalize the lawful selling and purchase of guns while the Department of Justice fails to prosecute violent criminals to the fullest extent of the law.

“If the Department was serious about combatting violent crime, it would focus on enforcing the laws that are already on the books to hold violent criminals accountable for their actions. That would be the type of work that could save lives,” the chief prosecutors wrote. “Unfortunately, the Department has instead targeted innocent people who sell firearms. That is not only unlawful but wrong and the Department must change course.”

The ATF proposal expands upon the Bipartisan Safer Communities Act’s modified definition of “engaged in the business” of selling guns, which means anyone can be classified as a firearms dealer if they have the “intent to predominantly earn a profit.” After the Senate and House passed the bill in June 2022, President Joe Biden enacted the gun-control legislation ostensibly to crack down on gun violence in the U.S.

The new letter comes more than two months after Senator Roger Marshall (R., Kan.) and six other Republican senators sent one to Garland, also arguing the proposed regulation is constitutionally unsound and completely unauthorized by Congress. The federal lawmakers argued the ATF is purposefully misinterpreting the Bipartisan Safer Communities Act’s definition of “firearms dealer” in order to place firearm purchases under its purview, despite the legislation’s exemption for individuals who occasionally engage in firearm transactions.

Besides Kobach, Bird, and Knudsen, the other 23 undersigned Republican attorneys general include the following: Steve Marshall (Ala.), Treg Taylor (Alaska), Tim Griffin (Ark.), Chris Carr (Ga.), Raúl Labrador (Idaho), Todd Rokita (Ind.), Daniel Cameron (Ky.), Jeff Landry (La.), Lynn Fitch (Miss.), Andrew Bailey (Mo.), Mike Hilgers (Neb.), John Formella (N.H.), Drew Wrigley (N.D.), Dave Yost (Ohio), Gentner Drummond (Okla.), Alan Wilson (S.C.), Marty Jackley (S.D.), Jonathan Skrmetti (Tenn.), Ken Paxton (Texas), Sean Reyes (Utah), Jason Miyares (Va.), Patrick Morrisey (W.Va.), and Bridget Hill (Wyo.).

Arizona is the 27th state to be represented in the list of signatures, with state representative Ben Toma (R.) and state senator Warren Petersen (R.) also signing onto the official correspondence.

“This proposed rule is a flagrant violation of every American’s rights guaranteed by the Second Amendment, ignoring the very concerns our founders had when they ratified it,” Knudsen told National Review. “Rather than meaningfully addressing the rise in violent crime occurring around the country, the Biden administration is once again criminalizing law-abiding citizens. I will always fight federal overreach and attempts to erode Montanans’ gun rights.”

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