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ATF Announces Rule to Boost Background Checks

The proposed rule strengthens licensing requirements for those who buy and sell guns

Today, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) announced a proposed rule to help implement the Bipartisan Safer Communities Act (BSCA), enacted on June 25, 2022, which amended federal law to clarify that gun dealers are those who “predominantly earn a profit” from buying and selling firearms. Essentially, the ATF’s proposed rule specifies what that BSCA revision means “on the ground,” strengthening the requirements for people to obtain licenses and conduct background checks when selling firearms.


Federal regulations require those “engaged in the business” of selling firearms to obtain Federal Firearms Licenses (FFLs), record whenever a firearm enters or leaves their inventories to help with law enforcement tracing should the gun later show up at a crime scene, and conduct background checks on potential customers prior to selling or transferring a weapon. Since 1986, federal law held that a person was “engaged in the business” if they devote “time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.” 

But in the intervening years, unlicensed individuals have sold firearms online and at gun shows through private-party transactions — arguing that they are not “engaged in the business” of selling firearms because their “principal objective” isn’t “livelihood and profit,” for example — without conducting background checks or recording sales, which could aid gun traffickers.

The BSCA, signed into law last year, broadened the definition of “engaged in the business” under 18 U.S.C. § 921(a)(21)(C) to include anyone who intends to “predominantly earn a profit” dealing in firearms. The statute now provides that the term “engaged in the business” means “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.”

According to the law, “The term ‘to predominantly earn a profit’ means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection: Provided, That proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism.”


The ATF’s proposed rule further clarifies when someone is “engaged in the business” of selling firearms and must obtain an FFL and conduct background checks on all sales. If finalized, a person will be presumed to be “engaged in the business” of dealing in firearms in civil and administrative proceedings if they, among other things:

  • Offer for sale any number of firearms and represent to potential buyers that they are willing to purchase and sell additional firearms;
  • Repetitively offer for sale firearms within 30 days after they were purchased;
  • Repetitively offer for sale firearms that are new, or like new, in their original packaging;
  • Repetitively offer for sale multiple firearms of the same make and model; or
  • As a former FFL, sell firearms that were in their business inventory and not transferred to a personal collection at least a year before the sale.

Notably, the ATF uses several court cases as citations for each presumption, showing the agency’s vast experience in determining when people sold firearms illegally without a license or conducting background checks.

The proposed rule also clarifies that in civil and administrative proceedings, a person will be presumed to have the intent to “predominantly earn a profit” from selling firearms if they:

  • Advertise, market, or otherwise promote a firearm business (e.g., advertise or post firearms for sale online, create a website for selling firearms, make business cards, etc.);
  • Secure space to display firearms for sale;
  • Maintain records to document and track profits and losses;
  • Purchase merchant services, security, or insurance for the business; or
  • Establish a business entity, trade name, or online business account.

With these presumptions, it appears that anyone advertising or attempting to sell multiple guns for financial gain through online marketplaces, such as GunBroker or Armslist, for example, must now obtain an FFL and conduct background checks on customers or risk violating the law.

However, the ATF affirms that “a person would not be presumed to be engaged in the business requiring a license as a dealer when the person transfers firearms only as bona fide gifts, or occasionally sells firearms only to obtain more valuable, desirable, or useful firearms for their personal collection or hobby, unless their conduct also demonstrates a predominant intent to earn a profit.”

The ATF estimates that the proposed rule would affect “at least 24,540 unlicensed persons who, as a result of changes enacted in the BSCA, are now required to obtain a Federal firearms license.” The ATF derived this figure from examining classified ads for firearms posted on Armslist.


While the proposed rule would help combat gun trafficking and is consistent with the BSCA and the ATF’s authority to implement federal gun laws, Larry Keane, senior vice president and general counsel for the National Shooting Sports Foundation (NSSF), the gun industry’s trade association, tweeted that the “propose[d] rule exceeds by a lot ATF’s statutory authority. It violates the [Administrative Procedure Act] and Constitution.” The NSSF leveled similar claims against the ATF’s ghost gun and arm brace rules.

Other gun groups opposed to the rule have stated that they are “preparing a lawsuit” and “exploring legal options.”

Once the proposed rule is published in the Federal Register, the public will have 90 days to submit comments.

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