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.
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