A U.S. District Court judge in Wichita will decide whether private gun sales must be processed through a federally licensed firearm dealer if it’s “predominantly to earn a profit.”
Gun rights advocates say that puts run-of-the-mill hobbyists at risk of felonies.
The dispute comes from 2022 Safer Communities Act, which redefined a gun dealer as someone “with the principal objective of livelihood and profit” to “predominantly earn a profit. Currently, gun vendors must obtain a Federal Firearm License to participate in the gun business, and all FFL-holders must conduct background checks on potential buyers.
Private sellers who aren’t primarily engaged in firearms as a business historically have been able to sell guns without conducting a background check. The Bureau of Alcohol Tobacco and Firearms says private sales are abused at gun shows, online transactions and through straw-buyers to skirt the safeguards of background checks.
The ATF says it is changing the law to close loopholes that allow guns to flow into black market sales.
“Today’s rule clarifying application of that definition will save lives by requiring all those in the business of selling guns to get a federal license and run background checks — thus keeping guns out of the hands of violent criminals,” said Lisa Monaco, deputy attorney general.
What makes a private seller?
Gun rights activists believe the rule is a step too far, and could criminalize any private sale that makes any amount of money. Kansas Attorney General Kris Kobach’s lawsuit challenging the rule says it could criminalize hunting buddies swapping shotguns, someone selling a recently bought handgun at the price they paid for it or downsizing a firearms collection with sales to a friend.
“By dropping a word out of that definition, essentially they broaden it out so much that it ropes in anyone who sells a firearm and gets a profit off of it, whether they intend to make a profit or not,” said Moriah Day, executive director of the Kansas State Rifle Association. “Prior to the final rule, it was limited to those who are actually doing it to gain a profit.”
The rule went into effect on May 20, but on Monday, the court will decide whether an injunction is placed on it while the courts decide if the rule is constitutional. Originally the suit was filed in the District Court of Arkansas, but it was transferred to Kansas due to a lack of standing in Arkansas. Two of the plaintiffs are based in Kansas.
“I know gun shows, I’ve been going to them forever. You never know what’s going to walk through that door. Sometimes I don’t get any because nothing really trips my trigger and I might get rid of something,” said Phil Journey, a judge, former member of the Kansas Senate and plaintiff in the case. “But I don’t know if I’m going to set up at a gun show or not again. Now that I’m sticking my head out of the trench somebody might just try and shoot me so to speak.”
Kris Kobach is leading lawsuit with 20 states signed on as co-plaintiffs
Kobach is leading the lawsuit, but about 20 states have signed on as co-plaintiffs. Defendants include U.S. Attorney General Merrick Garland, ATF director Steven Dettelbach, the Department of Justice and the ATF. On Monday, both sides have 30 minutes to argue for or against an injunction on the rule change.
It’s unclear what the judge will decide. In Texas, a district judge issued a temporary restraining order for the new ATF rule that didn’t apply to other states involved in the case. The U.S. Supreme Court recently issued a favorable decision for gun rights advocates when it reversed course on an ATF rule banning bump stocks, a device used to rapidly pull a gun’s trigger.
“It’s an issue like the bump stocks," Journey said. "That is an enactment by executive ruling that is broader than the intent of the original statute that it’s based upon. And it turns into legislation by the executive branch.”
This article originally appeared on Topeka Capital-Journal: Kansas judge considers injunction on rule criminalizing private sale of guns for profit
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