Chilling Effect of Biden Final Rule; Texas Court Issues Blocks ATF FFL Rule

Polls show that new gun owners aren’t buying gun control rhetoric. IMG iStock-1182677191

On May 19, 2024, United States District Judge Matthew J. Kacsmaryk issued a temporary restraining order against the Biden administration, forbidding them from enforcing the parts of the ATF “final rule” having to do with a re-definition of “engaged in the business” as part of federal firearms law. From the order:


Defendants are TEMPORARILY RESTRAINED from enforcing the regulations — “Definition of ‘Engaged in the Business’ as a Dealer in Firearms” — published at 89 Fed. Reg. 28968 (April 19, 2024) (to be codified at 27 C.F.R. pt. 478) against Plaintiffs Texas, Jeffery Tormey, the Gun Owners of America, Inc., the Gun Owners Foundation, the Tennessee Firearms Association, and the Virginia Citizens Defense League, through June 2, 2024. Plaintiffs Louisiana, Mississippi, and Utah are excluded from the relief granted herein.

It is unclear what will happen after the temporary restraining order expires in two weeks. The chilling effect on exercising Second and First Amendment rights has already been felt in Montana.

Gary Marbut, the foremost authority on all legal issues involving gun law in Montana, has issued a press release substantiating the chilling effects on a Montana gun show. From the press release:

MISSOULA, Mont. – A gun show scheduled in Hamilton, Montana for the weekend of May 17th, 18th and 19th has been cancelled because of the new regulation by the Biden administration and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) redefining what “engaged in business” is for selling one or more firearms.

Typically, some vendors at gun shows have federal firearms licenses to be in the business of selling firearms and require all buyers to complete a federal background check before completing a transaction. Other venders are private sellers, not in active business, but who may be selling firearms from a personal collection or trading firearms as a hobby. Such private sales have always been legal and allowed until the new Biden/BATFE regulation about who is seen to be “engaged in the business” of selling firearms. With a change in administrative rules and definition, the new regulation could make it a federal crime for private sellers to sell even one firearm.

The proprietor for the Hamilton gun show reports that because of the uncertainties and possible criminal liabilities created by the new regulation, he is unable to attract enough vendors to cover the costs associated with putting on his annual gun show. Private sellers of firearms at gun shows are unwilling to risk prison time to pursue their hobby or sell firearms from personal collections. Therefore, this historic and regular gun show has been cancelled.

Many people have expressed concern about the effect this new federal regulatory change will have on gun shows nationwide. There are concerns that the uncertainties of this new regulation will dissuade typical vendors from having tables at gun shows. This fear appears to be proven correct by the cancellation of the Hamilton gun show. This problem will likely repeat for the thousands of gun shows held across the U.S. each year, which are typically attended by millions of people. This, in turn, will interrupt a major marketplace and recreational activity in the U.S.

It remains to be seen if the Hamilton gun show cancellation is a dead canary in the coal mine. It is likely a warning about the future of gun shows. Gary Marbut, President of the Montana Shooting Sports Association commented, “A wave of such cancellations is probably the intended outcome for the new Biden/BATFE rule.”

At least three lawsuits have been filed in federal courts challenging the new Biden/BATFE rule. One lawsuit is by Texas, another by Florida, and the third is by the Attorneys General of multiple states, including Montana. All lawsuits ask for emergency orders restraining the BATFE from enforcing this new rule. As a result, the rule could be suspended by judicial order while the merits of the lawsuits are sorted out in court.

The Texas court order applies to organizations with a national membership, such as Gun Owners of America. It appears the order will have national implications.

The Biden administration is expected to appeal the case to the Court of Appeals for the Fifth Circuit. The Fifth Circuit has not been favorable to the Biden Administration’s attempt to expand restrictions on the ownership and sale of firearms by administrative fiat. Gun shows have been a target of those who wish for a disarmed population for decades. Gun shows are a locus of political power and exchange of information for Second Amendment supporters. Several of the most effective state organizations were organized through membership drives at gun shows.

There is a clear First Amendment nexus between the viability of gun shows and Second Amendment political organizations.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean WeingartenDean Weingarten

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