The National Rifle Association of America (NRA) has filed a lawsuit challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) “Engaged in the Business” Final Rule. The ATF’s Final Rule unlawfully redefines when a person is “engaged in the business” of dealing in firearms and therefore required to be federally licensed. This new lawsuit is being filed on the heels of recent U.S. Supreme Court decisions that have reined in executive branch agencies from acting outside of statutory authority. The NRA suit is named Butler v. Garland and has been filed in the U.S. District Court in Alabama (Northern District, Eastern Division).

CLICK HERE to Read Butler v. Garland Complaint (PDF) »

“The ATF’s Final Rule stands to turn countless upstanding and well-intending citizens into criminals for exercising their constitutional rights,” said Randy Kozuch, Executive Director of the NRA Institute for Legislative Action (NRA-ILA). “When ATF released this Final Rule, NRA promised to use every means necessary to stop this egregious interpretation of the law. Now that the Supreme Court’s recent decisions in Loper Bright, Cargill, and Rahimi make clear that the ATF does not have unfettered authority to arbitrarily restrict NRA Members’ rights to buy and sell firearms, the NRA is fighting back.”

NRA, along with two individuals, Don Butler and David Glidewell, filed the lawsuit challenging the ATF’s Final Rule in the U.S. District Court for the Northern District of Alabama. The complaint alleges that the Final Rule violates the Administrative Procedure Act because it exceeds the ATF’s statutory and jurisdictional authority and is arbitrary and capricious; violates the Fifth Amendment because it is unconstitutionally vague; violates the Second Amendment by infringing the rights to keep, bear, buy, and sell arms; and violates the Separation of Powers, non-delegation doctrine, and Take Care Clause by usurping legislative powers and prohibiting lawful conduct by executive fiat.

In this Armed Attorneys Video, Emily Taylor and Richard Hayes discuss the effect of the new ATF Final Rule.

Under the Firearms Owners’ Protection Act (FOPA) of 1986 (which amended the Gun Control Act of 1968), someone is “engaged in the business” of dealing in firearms if that person “deal[s] 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 2022 Bipartisan Safer Communities Act (BSCA) altered that definition by replacing “livelihood and profit” with “to predominantly earn a profit.” The BSCA did not alter FOPA’s exclusion 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.”

On April 19, 2024, ATF promulgated the Final Rule “to clarify the criteria for determining when a person is ‘engaged in the business.’” The Final Rule provides that “there is no minimum threshold number of firearms purchased or sold that triggers the licensing requirement” and that “there is no minimum number of transactions that determines whether a person is ‘engaged in the business’ of dealing in firearms. For example, even a single firearm transaction or offer to engage in a transaction . . . may require a license.”

The Final Rule also excludes firearms acquired for “personal protection” from the firearms that may be sold from a personal collection without a license. The ATF’s Final Rule thus rewrites the law, contradicts Congress’ statutory language, and adds confusion rather than clarification.

The National Shooting Sports Foundation (NSSF), has announced its support for the Congressional Review Act (CRA) Resolution of Disapproval of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) “Engaged in the Business” Final Rule. The CRA Disapproval Resolution was introduced and led by U.S. Sens. John Cornyn (R-Texas) and Thom Tillis (R-N.C.) and was co-sponsored by 43 other senators.

Senators Seek to Block ATF Rule Requiring FFL License for Private Sales
The CRA Resolution would block the Biden administration from enforcing the Final Rule that forces private firearm sellers to obtain a Federal Firearms License (FFL), conduct FBI National Instant Criminal Background Check Systems (NICS) verifications and maintain records in perpetuity, the same as a bonafide licensed firearm retailer. The Final Rule was forced through to institute near-universal background checks, legislation that Congress has expressly rejected because it would require a national firearm registry to work.

“President Biden is using rulemaking by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to impose so-called ‘Universal Background Checks’ rejected by Congress. The rule is unconstitutional because it violates the Separation of Powers by usurping the role of Congress to say what the law is,” said Lawrence G. Keane, NSSF’s Senior VP & General Counsel.

Keane adds: “The rule ignores Congress’ requirements left unchanged by the Bipartisan Safer Communities Act (BSCA) that a dealer is one who devotes time, attention and labor to dealing in firearms as a regular course of trade or business through the repetitive purchase and resale of firearms. The Biden administration has repeatedly shown its willingness to run roughshod over the Constitution to attack the fundamental rights of law-abiding citizens to keep and bear arms.” SEE ATF Final Rule Text.

In this Armed Attorneys Video, Emily Taylor and Richard Hayes discuss the effect of the new ATF Final Rule.

Biden Admin Action Could Affect over 300,000 Private Gun Owners
The massive expansion of persons considered to be “engaged in the business” could have a massive reach. The new policy could require registration (and monitoring) of up to 328,000 Americans it now deems to be “firearm dealers” even though they only make occasional firearm sales, sell part of a personal firearm collection, or make purchases/exchanges for a personal collection or hobby.

Here Attorney and Washington Gun Law President William Kirk analyzes the ATF’s new Final Rule and explains how it will affect private transactions.