Conservative-led states sue Biden administration over 'gun show loophole' rule

LITTLE ROCK, Ark. — A coalition of 21 conservative states led by Arkansas filed a lawsuit Wednesday challenging a new federal rule regulating licenses for gun dealers.

The rule is meant to clarify definitions and help implement the Bipartisan Safer Communities Act of 2022, which the White House has called the “only significant expansion of the background check requirement” since 1993.

The rule adopted on April 19 broadens the definition of a firearms dealer. Therefore, a person must be licensed and required to run background checks on the people they sell guns to.

At a news conference Wednesday, Arkansas Attorney General Tim Griffin called the rule an “attempt to do what … the administration couldn’t get through the Congress” and “arbitrary and capricious.”

“They do not have the power to do this unilaterally via fiat,” Griffin said.

“This proposed rule does not help clarify anything,” the Attorney General remarked. “[The rule] should have to go through the Congress.”

Griffin is co-leading the suit with Kansas Attorney General Kris Kobach as part of a 21-state coalition. The lawsuit was filed in federal court in Little Rock.

The other states include Iowa, Montana, Alabama, Alaska, Georgia, Idaho, Indiana, Kentucky, Missouri, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Virginia, West Virginia and Wyoming, as well as several individuals and a gun collector group.

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Griffin cited the March search warrant raid carried out by Alcohol, Tobacco, Firearms and Explosives agents in which the director of Little Rock’s airport was killed in a shootout.

Bryan Malinowski was suspected of dealing firearms without a license and the pre-dawn raid at his house was intended to seize some of the more than 150 guns that he had bought since 2021.

“For whatever reason, the ATF believed that [Malinowski] had somehow met the nebulous, somewhat subjective standard” of being in the business of dealing firearms,” Griffin said. “There was confusion and a lack of clarity as to where the line was before, and this [new rule] doesn’t help. ... If you’re going to be put in that situation based on your conduct, there’s a heightened obligation on the government to provide guidance.”

The raid took place before the new rule was announced.

New rule aimed at illegal sales, White House says

According to the lawsuit, “only those who repetitively purchased and sold firearms as a regular course of business had to become a licensee.”

The lawsuit alleges the new rule “has the practical effect of requiring background checks for a large number of firearms sales that would not have been required under the prior definitions of ‘engaged in the business.’”

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Under the rule, the lawsuit contends, anyone “who sells or resells even one firearm with the intent to profit (no matter how little), combined with other (nebulously defined) evidence, is a firearms dealer who must become a licensee.”

A statement from the White House on April 11 announcing the rule emphasized a seller’s intent, saying that “a person selling just one gun and then saying to others they are willing and able to purchase more firearms for resale may be required to obtain a license and run background checks.”

In the past, people selling firearms at gun shows weren’t required to be licensed as dealers or run background checks on their customers, a fact known as the “gun show loophole.”

In the statement, the Biden administration said that under the new rule and the Bipartisan Safer Communities Act, “the gun show or online sale loopholes do not exist” and that “if you are conducting business that in a brick-and-mortar store would require you to become a licensed dealer, you have to become a licensed dealer and run background checks.”

The rule also “gives the Department of Justice additional tools to crack down on individuals illegally selling guns without background checks.”

However, it also leaves a carveout for collectors and hobbyists. “A bona fide personal collection is not the same as business inventory,” the White House said.

A representative from the Bureau of Alcohol, Tobacco, Firearms and Explosives declined to comment.

This article originally appeared on Fort Smith Times Record: Arkansas, conservative states sue feds over 'gun show loophole' rule