President Joe Biden’s administration has drafted a document that would require background checks for all gun sales, even transactions between private citizens, according to a whistleblower group.
The document was drafted at the direction of the White House, according to two whistleblowers who communicated with the organization.
However, Empower Oversight stated in their letter to Attorney General Merrick Garland, head of the U.S. Department of Justice (DOJ), that the rule proposed in that document represents an overreach of executive branch power.
“Such an expansive rule that treats all private citizens the same as federal firearms licensees would circumvent the separation of powers in the Constitution, which grants ‘all legislative powers’ to Congress while requiring that the president ’take care that the laws be faithfully executed,’” Tristan Leavitt, Empower Oversight’s president, wrote.
“To the extent such a rule prevents the private sale of firearms, it would also clearly violate the Second Amendment to the United States Constitution, which declares that ’the right of the people to keep and bear arms, shall not be infringed.'”
The rule “would effectively ban private sales of firearms from one citizen to another by requiring background checks for every sale.”
Mr. Leavitt said in a statement that the rule, if it were finalized, “seems almost certain to be struck down in the courts” like President Biden’s debt relief plan was. He added, “It’s thus hard to view it as anything other than a cynical pay [sic] to energize his base in a presidential election year.”
The ATF, which is part of the DOJ, declined to comment on the letter beyond pointing to publicly available information.
“Because the proposed rule is still working its way through the process, we cannot comment further,” a spokesperson told The Epoch Times via email.
Rule Proposed
President Biden, in March 2023, issued an executive order directing Mr. Garland, whom he appointed, to take “actions to reduce gun violence.”That included developing a plan to “clarify the definition of who is engaged in the business of dealing in firearms, and thus required to become federal firearms licensees (FFLs), in order to increase compliance with the federal background check requirement for firearm sales, including by considering a rulemaking, as appropriate and consistent with applicable law.”
“This executive order helps keep firearms out of dangerous hands, as I continue to call on Congress to require background checks for all firearm sales,” President Biden said at the White House at the time. “And in the meantime, my executive order directs my attorney general to take every lawful action possible to move us as close as we can to universal background checks without new legislation.”
The Gun Control Act (GCA) of 1968 bars people, except for licensed dealers, from “[engaging] in the business” of selling firearms. Those dealers must perform background checks on prospective buyers. A law enacted later stated that the prohibition doesn’t apply to “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.”
A 2022 law signed by President Biden said that people who “predominantly earn a profit” from selling guns needed to do the background checks and didn’t include the exclusionary line regarding people who make occasional sales and purchases.
“The rule proposes to accomplish this clarity and deterrence by setting forth specific activities demonstrating when an unlicensed person’s buying and selling of firearms presumptively rises to the level of being ‘engaged in the business,’ thus requiring that person to obtain a dealer’s license, conduct background checks, and abide by the other requirements set forth in the GCA,” the ATF said in the proposal.
“At the same time, it recognizes that individuals who purchase firearms for the enhancement of a personal collection or a legitimate hobby are permitted by the GCA to occasionally buy and sell firearms for those purposes without the need to obtain a license.”
Members of the public were able to comment on the proposed rule until Dec. 7, 2023. The proposal drew more than 387,000 comments. Many people voiced opposition to the ATF’s proposal.
“This ATF rule is nothing more than a complete and utter overreach by non-elected bureaucrats who appear to not want the citizens of the U.S. to continue a tradition of privately buying and selling firearms that has been in existence since before the founding of this country,” one wrote.
Empower Oversight says that the whistleblowers identified Eric Epstein, an ATF lawyer, as overseeing the drafting of the finalized rule.
Empower Oversight is asking the DOJ, under the Freedom of Information Act, for all emails to and from Mr. Epstein discussing the rule; communications between the DOJ and ATF on implementing President Biden’s executive order; communications between the DOJ or ATF and the White House on the implementation; and DOJ and ATF records that contain remarks relating to regulating or banning firearm sales between private individuals.
