Kansas Attorney General Kris Kobach argued that a rule implemented by the Bureau of Alcohol, Tobacco and Firearms is unconstitutional and moved that a temporary restraining order be issued on the rule Monday at the Robert Dole Courthouse in Kansas City, Kansas.
The ATF rule deems that firearms sold with the primary function of gaining a profit is acting as a business and should therefore be processed through a background check like those bought through a Federal Firearms License holder.
Private sellers who aren’t engaged in firearms sales for their livelihood previously have been able to sell guns without obtaining a background check for the buyer.
Would this criminalize private gun sales?
Gun rights advocates suggest the rule could criminalize a single private sale of a firearm. Kobach concurred, telling the judge that the exceptions carved out for private sales could easily be ignored by an overzealous administration.
The ATF says the rule is targeted at people who exploit loopholes to avoid being listed as a seller, and shall not include occasional sellers, exchanges people who sell their guns to enhance their personal collection, hobbyists upgrading or people liquidating all or part of a personal collection.
“The definition focuses on whether the intent underlying the sale or disposition of firearms is predominantly one of obtaining pecuniary gain,” ATF documents say.
Kobach argued that it’s impossible for an agency to determine whether someone’s gun enhances a personal collection, upgrades hobbyist gear or for personal defense. He said all guns have multiple uses and are functional of being used for self defense and would therefore be open game for the ATF.
He used his own guns as an example, saying one of his home defense shotguns is also a hunting rifle, and that a pistol he carries could be considered a collectable.
But Keri Berman, the attorney representing the ATF and United States Department of Justice, countered that personal collections have been interpreted narrowly, rather than a “vast harbor to sell” any type of firearm in other cases.
Overall, she said the cases will be judged based on the totality of circumstances of the seller.
Kansas District Judge Toby Crouse said differentiating between a private sale and a business transaction can “seem like an oblique line” at times.
Does Kansas have standing?
Crouse will determine whether the U.S. District Court in Kansas will have standing in the case. On May 23, the Arkansas Eastern District Court transferred the case to Kansas after finding a lack of standing.
There, Kobach argued the rule would reduce tax revenues in the state from lost collections from people renting tables at gun shows. He restated that argument in Kansas, but plaintiffs who run or participate in gun shows reside in the state this time.
Crouse did question whether all of the plaintiffs had standing. There are more than 20 states signed onto the lawsuit, and a Texas Court narrowed its decision on the ATF rule to expunge many of the states acting as co-defendants.
Berman said there wasn’t sufficient evidence of an actual impact that would allow the preliminary injunction to go through, but that the case could continue even if some of the co-plaintiffs didn’t have standing.
How a recent Supreme Court decision could impact the case
On Friday, the United States Supreme Court overturned a precedent that defers to an agency’s interpretation of a statute when a law being questioned is written vaguely. It’s been used by both Republican and Democratic administrations to shield regulatory agencies, and for decades has been deeply entrenched in administrative law.
Kobach argued that puts more responsibility on the judge to determine the likelihood of the case on its merits, rather than with the assumption that an agency’s view is correct. Berman countered that the Chevron case isn’t applicable, and that the ATF is correctly interpreting the statute in the Safer Communities Act.
When will a decision be made?
Crouse said he’s going to try to give a written order “in quick fashion” on the case, but didn’t set a clear timeline for when he’d announce a decision.
He acknowledged that whatever he decides, either side is likely to appeal to the Tenth Circuit Court of Appeals, which covers Kansas, Oklahoma, Colorado, Utah, Wyoming and New Mexico.
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