Why It Matters

A Congressional Research Service (CRS) report shows the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) unwinding enforcement of the "engaged in the business" standard Congress tightened through the Bipartisan Safer Communities Act (BSCA) in 2022. The law shifted the licensing trigger for gun dealers from operating "with the principal objective of livelihood and profit" to simply seeking "to predominantly earn a profit," a lower bar meant to pull more hobbyists and casual sellers at gun shows, flea markets, and online platforms into the federal licensing and background-check system.

The Department of Justice (DOJ) estimated the change would require 23,006 previously unlicensed sellers to obtain Federal Firearms Licenses (FFLs). On May 6, ATF proposed rescinding the enforcement presumptions the previous Biden administration built to identify who meets that standard.

The Big Picture

The Biden-era rule flagged sellers who resold firearms within 30 days of purchase, dealt in new or like-new inventory still in original packaging, spent more on firearms than their reported taxable income, or sold through straw purchasers and sham businesses. An April 2024 ATF report found that trafficking at gun shows, flea markets, and auctions was tied to the highest average number of firearms trafficked per investigation, and DOJ's 23,006-license estimate reflected how many sellers the rule was expected to pull into the licensing system.

ATF's proposal would delete that entire presumptions framework, along with language stating a person "may have the intent to profit even if the person does not actually obtain the intended pecuniary gain." The agency argues the change would have "no effect on the scope of the law," and a Trace analysis of more than 600 federal firearms prosecutions found the Biden-era rule hadn't changed the types of charges prosecutors brought. Both supporters and critics of the proposal agree, however, that the change will make it easier for individuals to buy firearms without a background check.

The regulatory retreat is already underway on a separate track: a June district court ruling in State of Texas v. Bureau of Alcohol, Tobacco, Firearms and Explosives granted a preliminary motion enjoining the DOJ from enforcing the Biden-era rule.

The Bottom Line

The statutory standard Congress wrote into the BSCA (that dealers "predominantly earn a profit") remains unchanged. What is disappearing is the regulatory machinery ATF built to identify who meets it. CRS suggests that leaves the question back with Congress: lawmakers may need to spell out in statute, rather than leave to a rotating cast of regulators, who counts as someone trying to profit from dealing firearms.

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