CHARLESTON — West Virginia Attorney General Patrick Morrisey’s office has joined a coalition of 21 states in a lawsuit opposing an ATF rule that was intended to close a loophole regarding private gun sales.
The lawsuit, filed May 1 in federal court in Arkansas, against the Bureau of Alcohol, Tobacco, Firearms and Explosives claims a recently changed rule regarding licensing for firearms sellers is illegal and unconstitutional.
The rule requires anyone who sells firearms predominantly to earn a profit to become federally licensed and conduct background checks, including those selling at gun shows. The rule, which was finalized April 11, essentially seeks to require a federal firearms dealer license for every individual who sells a firearm for anything the ATF sees as a profit, including currency, exchange of another firearm, or a service.
Morrisey
| File photo
It could make a felon of a gun hobbyist who sells a firearm to another family member or a hunter who trades a firearm with another hunting buddy. Previously the licensing requirement tended to be more focused on sellers with an established retail operation rather than those without a business license who sold at shows.
“This administration is hell-bent in trampling on law-abiding Americans’ constitutionally protected right—to fit President Biden’s liberal agenda to erase the Second Amendment,” Morrisey said in a press release. “This is unlawful, plain and simple. I have no doubt that this rule will be struck down in the courts because it’s unconstitutional.
“I will continue to stand up for the Second Amendment rights of all West Virginians.”
In the lawsuit filed Wednesday in Arkansas, the attorneys general say the rule is unconstitutional because it is vague, violates the Second Amendment and circumvents Congress. The AGs say the rule changes a long-standing precedent and is too far-reaching in its impact. They ask the court to declare the new rule unlawful.
“Federal law has defined who is a firearms dealer since 1938,” said Arkanas AG Tim Griffin, who is co-leading the lawsuit with Kansas AG Kris Kobach. “In every iteration of that definition, private collectors and hobbyists were not included and, in many cases, were specifically exempted from that definition.
“In 2021, President Biden instructed his government to curtail gun rights ‘without having to go through’ Congress. The ATF’s new rule is the latest manifestation of the President’s desire to govern by fiat without consideration of the constitutional rights of Americans.”
In addition to the ATF, the U.S. Department of Justice, U.S. Attorney General Merrick Garland and ATF Director Steven Dettelbach are named as plaintiffs.
The states ask the court to postpone the effective date of the rule pending review, declare the rule unlawful and in violation of the Administrative Procedure Act and vacate the rule. They also seek injunctions to stop the defendants from enforcing the rule.
Other states joining the lawsuit are Alabama, Alaska, Georgia, Indiana, Iowa, Kentucky, Idaho, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Virginia and Wyoming.
U.S. District Court for the Eastern District of Arkansas case number 2:24-cv-88