On December 7, 2023, Tennessee Attorney General Jonathan Skrmetti
joined attorney generals from the States of Kansas, Iowa, Montana,
Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana,
Mississippi, Missouri, Nebraska, New Hampshire, North Dakota, Ohio,
Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, West
Virginia, and Wyoming, and the Arizona State Legislature in opposing the
ATF’s current proposed rule to redefine the term “engaged in the
business” to effectively require all Americans who seek to own or sell
firearms to get a federal firearms license.
The
comment by these state officials opposing the ATF’s proposed rule
is a welcome demonstration by these state officials that the Second
Amendment, particularly after the United States Supreme Court’s June
2022 decision in
New York State Rifle and Pistol Association v. Bruen, No. 20-843, is not a provision to be lightly ignored. On
Bruen, the state officials assert in their join comment:
The proposed rule does not give sufficient treatment to this nation’s
important historical context. And it does not even mention Heller or Bruen.
Given that those two landmark cases provide the standard with which all
federal and state firearms regulations must comply, it is peculiar that
they receive no mention in this proposed rule. This omission combined
with the stunning overreach of this proposed rule shows that the Bureau
has no respect for the Second Amendment rights of the citizens that it
tries to regulate.
If the proposed rule attempted to apply Heller or Bruen,
it would fail. Nothing in this country’s historical tradition of
firearm regulation required that every firearm seller register for a
license with the federal government. That holds true even if the sale is
for a profit. Indeed, given how broad the conduct covered in the
proposed rule is, one would be hard pressed to even find an analogous
modern firearm regulation, raising serious Bruen concerns.
This
proposed rule does not come close to passing constitutional muster. The
Bureau should understand this and change course immediately.
This is a clear indictment by these states of the ATF’s attempts to infringe rights protected by the Second Amendment.
As for Tennessee, it would be fantastic if the Attorney General would
issue a similar demand on the Tennessee State Legislature and Governor
to demand that these state entities take the Second Amendment’s mandate
as a barrier against which all existing and future state laws and
regulations must be tested and, when appropriate, immediately repealed.
