Kobach, 25 attorneys general object to ATF’s proposed rule expanding definition of gun seller

photo by: Sherman Smith/Kansas Reflector

Kansas Attorney General Kris Kobach, pictured appearing on a Kansas Reflector podcast in April, signed a letter objecting to a proposed rule drafted by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives that would expand who was required to obtain a federal license and increase background checks.

TOPEKA — Kansas Attorney General Kris Kobach collaborated with 25 state attorneys general and Republican leaders of the Arizona Legislature to lobby for withdrawal of a proposed federal regulation that would compel gun sellers to obtain a federal firearm license.

The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives recommended the rule in August to define provisions of the Bipartisan Safer Communities Act. The law was signed by President Joe Biden in 2022 in aftermath of mass shootings in Buffalo, New York, and Uvalde, Texas.

ATF’s proposal would serve to increase background checks and potentially keep firearms from people prohibited from possessing or purchasing weapons.

Kobach, who taught constitutional law at University of Missouri-Kansas City, submitted a comment letter arguing the ATF’s proposed regulation would violate the Second Amendment to the U.S. Constitution. The rule ought to be revised by ATF to comply with U.S. Supreme Court precedent, he said.

“The bureau’s definition of ‘sale for profit’ is itself arbitrary and capricious,” Kobach’s letter said. “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.”

He said attorneys general and state lawmakers who objected to the ATF’s approach would “do everything necessary to stop this from happening.”

Implementation of the rule would take the unprecedented step of making any individual who sold a firearm “predominantly for profit” liable for civil, administrative or criminal penalties unless the seller possessed a federal license, Kobach said. The ATF’s regulation didn’t clearly define profit and presumed an individual who sold one firearm would be swept up in the expansion of federal oversight, he said.

“If the bureau was serious about combatting violent crime, it would focus on enforcing the laws that are already on the books to hold violent criminals accountable for their actions,” Kobach’s letter said.

The letter submitted by Kobach was included signatures from attorneys general from Missouri, Nebraska, Oklahoma, Iowa and Arkansas.

U.S. Sens. Charles Schumer of New York and Dick Durbin of Illinois, both Democrats, submitted a comment letter on the proposed ATF rule in November. They arguing gun sellers were avoiding background check mandates because the phrase “engaged in the business” of gun sales wasn’t adequately defined in regulation or law.

The senators said federal rules should consider the offering of guns for sale in commercial marketplaces, whether at a gun show or online, to be a business.

“For decades,” they said, “gun sellers have sold firearms without background checks because the term ‘engaged in the business’ has never been clearly defined — a flaw which has allowed sellers to avoid and evade licensing requirements and to sell guns in commercial marketplaces like gun shows and online without running background checks.”

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