TPPF Files Amicus Brief Challenging Biden Administration’s Backdoor Universal Background Check Program

AUSTIN – The Texas Public Policy Foundation filed an amicus brief supporting the State of Texas’s challenge to the Biden Administration’s backdoor attempt to impose universal background checks. Joining Texas in the lawsuit are the states of Louisiana, Mississippi, and Utah, as well as the Gun Owners of America, Tennessee Firearms Association, and Virginia Citizens Defense League. The brief, filed on behalf of 21 Members of Congress, argues the Biden Administration’s rule violates the Gun Control Act and also likely violates the Constitution’s interstate commerce clause.

Earlier this year, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) issued a final rule that stretches the definition of “engage in the business” of dealing in firearms to cover private, intrastate firearm transactions. According to the rule, ATF can now regulate “[e]ven a single firearm transaction,” “wherever, or through whatever medium, they are conducted” including at an “auction house,” “at one’s home,” or “at any other domestic or international public or private marketplace or premises.” Such transactions must be conducted through a federal firearm licensee (FFL). FFLs must conduct a background check prior to any firearm transaction, and ATF imposes a whole host of regulatory and paperwork requirements. If a FFL slips up on one of these requirements, ATF’s zero tolerance policy allows an immediate revocation of the license, and TPPF is separately representing another client who is fighting ATF’s zero tolerance policy. The engaged in business rule is the Biden Administration’s latest attempt to target law-abiding gun owners. The rule is a thinly-veiled attempt to mandate universal background checks without going through Congress.

When the federal government seeks to regulate under the Constitution’s interstate commerce clause, it must establish jurisdiction to do so. The federal Gun Control Act (GCA) only allows ATF to regulate the business of firearms dealing “in interstate or foreign commerce,” which the GCA defines as “between any place in a State and any place outside of that State.” Yet the ATF’s rule seeks to regulate transactions everywhere, including “at one’s home.” The brief argues this drastic expansion of federal authority violates the GCA and likely violates the Constitution’s interstate commerce clause.

“Agencies must operate within the limits set by the Constitution and by statute,” said Eric Heigis, attorney at the Texas Public Policy Foundation’s Center for the American Future. “The district court already agreed that this rule exceeded ATF’s authority and issued a temporary pause. TPPF is proud to represent the amici in this case and look forward to the court permanently vacating this flawed rule.”

To read the amicus brief, click here.

Texas Public Policy Foundation is a non-profit free-market research institute based in Austin that aims to foster human flourishing by protecting and promoting liberty, opportunity, and personal responsibility. The Center for the American Future defends the Constitution through legal opposition to government overreach. The Center launches legal challenges at the administrative, district, and appellate court levels on behalf of ordinary people whose lives, liberty, and property are threatened by government action in defiance of the Constitution.