More than two-dozen state attorneys general have signed a letter opposing what they call “the Biden administration’s shocking and unconstitutional attack on American’s right to keep and bear arms” for proposing a rule that anyone selling even a single firearm for profit must obtain a federal license.
Attorneys general from Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming joined the letter led by Montana Attorney General Austin Knudsen, Kansas Attorney General Kris Kobach, and Iowa Attorney General Brenna Bird. Additionally, the Arizona legislature joined the letter.
This is not the first time Republican state attorneys general have weighed in on Second Amendment issues. They have also supported challenges to restrictive gun control laws.
“The proposed regulation clearly violates the Second Amendment,” Kobach said in a prepared statement. “For as long as this country has existed, individual law-abiding Americans have sold firearms to friends and family. Doing so would become extremely difficult if this regulation were to take effect. My colleagues and I will do everything necessary to stop this from happening.”
“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,” Montana’s Knudsen added. “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.”
The letter, sent to the Bureau of Alcohol, Tobacco, Firearms and Explosives, says the proposed rule “also presumes a person is a ‘dealer’ in firearms if he ‘sell[s] or offer[s] for sale firearms, and also represent[s] to potential buyers or otherwise demonstrate[s] a willingness and ability to purchase and sell additional firearms.’ This presumption applies even if the seller only sells one firearm.”
Perhaps the most blistering paragraphs in the six-page letter are these:
“Despite the proposed rule regulating conduct that implicates the Second Amendment of the United States Constitution, the proposed rule does not at any point reference the term ‘Second Amendment.’ This omission demonstrates that there was no attempt by the Bureau to comply with the Constitution.
“As the Bureau should be well aware, the Supreme Court recently clarified the framework for determining the constitutionality of a law or regulation under the Second Amendment. The Court explained that if the Second Amendment ‘covers an individual’s conduct,’ any burden on that conduct is presumptively unconstitutional. The government can overcome that presumption only by showing ‘the regulation is consistent with this Nation’s historical tradition of firearm regulation.’ The proposed rule doesn’t even attempt to do this.”
The AG coalition later notes in its letter that the proposed rule “does not give sufficient treatment to this nation’s important historical context.”
“If the proposed rule attempted to apply Heller or Bruen, it would fail,” the coalition letter states. “Nothing in this country’s historical tradition of firearm regulation required that every firearm seller register for a license with the federal government. That holds true even if the sale is for a profit. Indeed, given how broad the conduct covered in the proposed rule is, one would be hard pressed to even find an analogous modern firearm regulation, raising serious Bruen concerns.”
According to the coalition of top state law enforcement officials, “This proposed rule does not come close to passing constitutional muster. The Bureau should understand this and change course immediately.”
Noting that the proposed rule is “bad public policy,” the AGs’ letter puts it bluntly: “Every part of this proposed rule is littered with implications that create civil, administrative, and criminal liability for millions of otherwise responsible and law-abiding citizens who merely sell or attempt to sell a firearm. In short, the proposed rule goes well beyond any reasonable interpretation of the statute and is arbitrary and capricious.”
