January 1, ATF Background Check Rule Halted: Texas Judge’s Decision Impacts Private Gun Sellers

Judge Matthew J. Kacsmaryk issued a temporary restraining order against the ATF’s universal background check rule on May 19, 2024. The case, State of Texas v. ATF, was brought by Texas, Gun Owners of America (GOA), and Gun Owners Foundation (GOF).

As a result of Kacsmaryk’s decision, the rule is now restrained from being enforced in the state of Texas or against members of GOA, GOF, the Virginia Citizens Defense League, and the Tennessee Firearms Association. The temporary restraining order lasts until June 2, 2024, the date by which Texas, GOA, and GOF must file supplemental declarations and briefs.

The ATF’s announcement of the rule occurred on August 31, 2023. The rule redefines what it means to be “engaged in the business of selling guns,” thereby expanding the instances in which an unlicensed seller — i.e., a private citizen — must use the NICS to sell or transfer a gun. As a result, it forces many private gun sellers to use the National Instant Criminal Background Check System (NICS) to sell their guns.

The rule largely centers on guns being sold for “profit”; however, on pages 26-27, it equates “pecuniary gain” with “profit,” opening the door for the ATF to redefine the word “sale” so as to require a NICS check when a private seller is “bartering” over a gun. On page 194 of the 466-page rule, the ATF makes it clear that people who smuggle guns out of the country in order to sell them abroad now fall under the “dealer” category.

Once smugglers are officially labeled as dealers, they are required to perform all the duties that pertain to that categorization, and that includes NICS checks.

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