Former ATF agents say a new Biden administration rule to restrict certain gun sales will be near impossible to enforce consistently — and some worry it’s another instance of their agency being used for politics.
“You get marching orders from on high,” a retired special agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives told NOTUS. “‘Hey, we’re going to be concentrating on this type of crime because that’s what the administration wants.’”
“We are used politically at times,” he added. “For sure.”
The rule is set to go into effect on Monday, provided the courts do not block it based on lawsuits from more than 30 states. A judge will hear arguments on Friday on whether to block the rule in a suit led by Kansas.
The rule, which came out of a 2023 executive order by President Joe Biden and the 2022 Bipartisan Safer Communities Act, is meant to close the “gun show loophole,” which allows sales to occur without background checks at gun shows. It requires individuals who repeatedly profit from firearm sales to obtain a federal firearm license and conduct background checks on people who buy their guns.
The Biden administration and groups that advocate for gun restrictions argue it’s vital to addressing gun violence.
“For the overwhelming majority of American firearm owners, this will have no impact on their lives,” said Mark Collins, director of federal policy at Brady. “The reason why this is a good thing is it will ensure that if people are selling guns for profit, off the books, that they can be held accountable.
“I think that this will put a lot of the folks that have been operating in the shadows on notice,” he added.
But former agents who handled gun enforcement warned that the rule could be spottily enforced and lead to prosecution of people who are unaware of the law.
“I think it’s just too muddy to be effective,” said Peter Forcelli, a former ATF agent who served as a whistleblower against Operation Fast and Furious, an agency scandal during the Obama administration.
Rick Vasquez, a former firearm technology expert with the agency, said he understands the rule’s premise. He pointed to owners who attend shows each week and set up booths with signs promising that no background check is needed.
“So they’re picking up used guns and selling them,” he said. “That’s what [the ATF is] trying to stop.”
But the rule could impact far more than shady dealers, including those without a criminal history, Vasquez said, predicting some prosecutors could use the change “to burn everybody” who sells a firearm for profit without a federal license, even one-time offenders.
“What they should have done is just say: If you sell guns at a commercial market, you have to be licensed,” Vasquez said. “How simple is that?”
The rule would almost certainly accomplish an increase in federal background checks, something the ATF under Biden has expressed a desire to see.
“Ultimately, that’s what they would love: for every firearm transaction that occurs in this country, for there to be a mandatory background check required,” said the retired special agent.
Some former agents and critics of the rule warned that too many people remain unaware of it, even days before it goes into effect. Violators of the rule could face a prison sentence of up to five years, up to a $250,000 fine, or both. Some may not even realize their previously routine firearm deals will have become felony crimes.
“If somebody is corrupt and dirty and is knowingly breaking the law … charge them,” said Forcelli. “But when you make things complicated like this, it’s just bad for the citizens,” making it more likely legal gun owners will make an unintentional but serious mistake.
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A bureau Q&A emphasized that a gun owner’s intent will play a significant role in the rule. To determine a violation, the agency plans to examine several factors to decide who could be charged with a felony under the new rule. Unlike in other ATF rules, there is no concrete, objective method for establishing who will be charged and who won’t be, with the agency declining to issue a threshold on the number of gun sales an owner can make before being considered “engaged in the business” of dealing firearms for profit.
“There’s no way to know for sure that you’re doing the right thing,” said Bill Sack, director of legal operations for the Second Amendment Foundation. “And if you’re wrong, then they can come after you with the SWAT team and throw you in jail for 10 years.”
Luis Valdes, a former law enforcement officer and a national spokesperson for Gun Owners of America, told NOTUS he’s concerned the bill will paralyze legal gun owners who don’t wish to break the law.
“So it creates inaction, which means they won’t buy, they won’t sell,” said Valdes. “And that makes the Biden administration completely happy.”
ATF, which is part of the Department of Justice, did not respond to a request for comment; the White House directed questions to the department.
Meanwhile, Republican lawmakers are trying to block the gun rule through a resolution.
“We will fight this lawless rule tooth and nail to ensure the God-given right to keep and bear arms is preserved and this flagrant distortion of congressional intent of our landmark mental health and school safety bill is struck down,” Sen. John Cornyn, who backed the 2022 bipartisan gun law, said in a statement.
Rep. Andrew Clyde, a gun store owner, introduced a companion resolution against the ATF’s rule on Thursday.
“It is a massive risk for everyone out there who wants to do a private transfer of a firearm,” Clyde told NOTUS. “If they can determine whether you’ve broken the law or not, and it’s completely up to them, then they have all the leverage that there is.”
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Ben T.N. Mause is a NOTUS reporter and an Allbritton Journalism Institute fellow.