ATF Cherry-Picks BSCA Enforcement to Maximize Gun Conrol, Minimize Safety

ATF agent
image courtesy ATF

The Biden-Harris administration is cherry-picking the law to appease gun control advocates and ignoring portions of the law that actually keeps guns out of the hands of criminals. And it “seems,” that’s a polite way of saying that’s exactly what’s happening.

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) sure was quick to implement portions of the Bipartisan Safer Communities Act (BSCA) that benefit their gun control agenda but seem to be ignoring other parts of the law that would make it easier for firearm retailers to do business.

President Joe Biden has been proud to tell his political donor class that he was responsible for signing into law the Bipartisan Safer Communities Act, what he terms as “the most meaningful gun safety law in 30 years.” NSSF didn’t support the law in its entirety. There were portions of the law that were just unacceptable. The law failed to provide a meaningful definition of a “willful violation” for firearm retailers that could cost them their license and livelihood in a “zero-tolerance” policy era. That was just one point of difference, but there were points upon which NSSF agreed. Yet, the administration is dragging its feet when it comes to implementing those parts of the law.

Two Provisions

There were two other provisions that seemed minor but make a significant difference to firearm retailers. One of the law’s provisions allows federal firearms licensees (FFLs) to use the FBI’s National Instant Criminal Background Check System (NICS) to screen current and prospective employees. That’s a no-nonsense part of the law upon which all sides can agree. The firearm industry doesn’t want firearms in the hands of those who are prohibited, and it only makes sense that a business owner is rock-solid sure that those individuals staffing the gun counter or handling a firearm or ammunition at a factory aren’t prohibited by law from possessing guns or ammunition themselves.

The second provision allows firearm retailers to screen used firearms they take into their inventory to ensure those firearms haven’t been reported as stolen. Before the law was signed, there was no other way for a retailer to be sure that a used firearm they are buying from a private individual wasn’t stolen. Having the ability to screen the firearm gives reassurance to the retailer that they’re not unknowingly receiving stolen property – especially a firearm that could have potentially been used in other crimes.

Firearm retailers are most often at the frontline of ensuring firearms stay out of the hands of those who cannot be trusted with them. That’s why NSSF championed the NICS verification – the instant point-of-sale background check – that tells the firearm retailer if an individual is prohibited from possessing a firearm or if they can proceed with the sale. The part of the Bipartisan Safer Communities Act allowing firearm retailers to screen incoming used guns only strengthens that frontline defense to protect America’s communities and protects the businesses too.

Except none of that is happening. The Department of Justice (DOJ) had 90 days – three months – to implement these two portions of the law. It’s been 19 months – and counting.

What They Focused on Instead

That’s not to say that the DOJ and ATF haven’t been busy. They’ve had their hands full with other ideas. Since the Bipartisan Safer Communities Act was signed into law, The White House published Executive Orders and Proposed Rules to clamp down on gun rights and overreach on their authority allowed by the laws passed by Congress.

The ATF published the “Engaged in the Business” Proposed Rule, which NSSF objects to and submitted comments on during the public comment period. The Bipartisan Safer Communities Act already addressed the question of redefining who was considered to be engaged in the business.

Congress made a one-word change to the “engaged in the business” definition by removing the word “livelihood” that the courts had effectively read out of the statute. The law still defines a firearm dealer as, “a person who devotes time, attention and labor to dealing in firearms as a regular course of trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

Attorney General Merrick Garland said that was enough to consider it a “mandate” from Congress to go it alone and let the Biden-Harris administration come up with their own definition – and criminal law while they were at it. That resulted in a 108-page proposal that’s a thinly-veiled attempt to create a universal background check scheme. That, of course, wouldn’t work unless DOJ is able to create a federal firearm registry to make it work. That’s still forbidden by federal law.

Yet, we see the respect the Biden-Harris administration is giving to the law. When the law doesn’t do what they want, they make it up anyway. When it doesn’t help their political agenda, they ignore it.


Quick on Control. Slow on Safety

While the DOJ hasn’t been able to get around to implementing two provisions in the Bipartisan Safer Communities Act that actually help stop criminals, The White House has been busy. They published an Executive Order to move as closely as possible to universal background checks, push the adoption of so-called “red flag” laws that still lack Due Process protections, use the Defense Department’s acquisition process to get firearm manufacturers to knuckle under to their gun control demands and chill the First Amendment rights of firearm manufacturers to advertise.

The White House was also busy standing up a new Office of Gun Violence Prevention. The Biden-Harris administration caved to the demands of their campaign benefactors to create a Cabinet-adjacent office to implement gun control from The White House. That office is staffed by gun control lobbyists who are now collecting a federal check to eliminate the rights of law-abiding citizens. Meanwhile, the “whole of government” attack on the industry is taking shape at the Bureau of Industry and Security (BIS) that implemented a 90-day pause on exports to most of the world and, according to a proposed rule leaked to The Reload, is about to impose even greater restrictions on exports.

The White House Office of Gun Violence Prevention’s biggest accomplishment so far has been to call in state lawmakers to convince them to carry out the Biden-Harris gun control agenda of banning Modern Sporting Rifles (MSRs) and standard-capacity magazines, pass more public nuisance laws that ignore the Protection of Lawful Commerce in Arms Act (PLCAA) and franchise gun control offices to state governors like they are a fast-food chain.

Except nothing will be fast and what the American public orders will be delivered completely wrong. Kind of like ordering tools that actually make communities safer and after 19 months and counting, all you have is gun control pet projects.



Larry Keane is SVP for Government and Public Affairs, Assistant Secretary and General Counsel of the National Shooting Sports Foundation.

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