While most of us would probably name Roger Taney, author of the Dred Scott decision, as the worst judge in U.S. history, the folks over at the New Republic have another candidate in mind. U.S. District Judge Matthew Kacsmaryk isn’t exactly a household name, but according to TNR’s Edith Olmstead, he’s the “worst judge ever”, in part because of his ruling regarding the ATF’s new rule that redefines who’s “engaged in the business” of selling firearms.
Last week, Texas Judge Matthew Kacsmaryk issued a preliminary injunction preventing the federal government from enforcing a controversial new rule from the Bureau of Alcohol, Tobacco, Firearms and Explosives, which expanded the definition of what it means to be “engaged in business” as a gun seller.
The new rule would require more sellers at gun shows to perform background checks on their buyers, shrinking—but not entirely solving—the longstanding “gun show loophole” that allows gun show vendors to skirt the accountability measures taken by other firearms dealers.
I won’t go so far as to call Olmstead the worst reporter ever, but her explanation of the ATF’s rule leaves a lot to be desired. First, as we all know, there’s no such thing as a “gun show loophole”. Every federally licensed firearms dealer is required to put their buyers through a background check, regardless of whether the sale takes place at a brick-and-mortar store, a gun show, or at a kitchen table. Private sellers, meanwhile, do not have to put a buyer through a background check; again, no matter where the person-to-person sale takes place.
The ATF’s new rule doesn’t just apply at gun shows, nor does it apply only to those who repeatedly buy and resell firearms. Under the ATF’s new rule, even offering a single gun for sale at a profit is enough to make someone an unlicensed gun dealer, no matter if the sale itself actually takes place. That’s one of the reasons why Kacsmaryk ended up granting the injunction halting enforcement of the new rule, at least as it applies to the named plaintiffs. As he said in his order:
Here, the Final Rule clashes with the text of the BSCA in at least three ways. First, it asserts that there is no “minimum number of firearms to actually be sold to be ‘engaged in the business’” for the purposes of the licensing requirement. “[A] single firearm transaction”— or even a mere offer to engage in a transaction — may suffice. But the BSCA says otherwise:The term “engaged in the business” means . . .
as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms[.]
Kacsmaryk also took issue with the rule’s assertion that “actual profit is not a requirement of the statute —it is only the predominant intent to earn a profit through the repetitive purchase and resale of firearms that is required”, as well as what he called the “evisceration” of the statute’s safe harbor provision.
That provision reads: The term “engaged in the business” . . . shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms[.]
Nothing in the foregoing text suggests that the term “personal collection” does not include firearms accumulated primarily for personal protection — yet that is exactly what the Final Rule asserts (“[T]he term [personal collection]shall not include firearms accumulated . . . for personal protection[.]”). Nor can Defendants’position be supported by its own interpretative policy of implementing terms’ “common meaning.”
… Yet Defendants maintain their interpretation despite acknowledging that “two-thirds of Americans report owning firearms primarily for ‘defense’ or ‘protection’” — thereby necessitating the absurdity that the statute’s safe harbor provision provides no safe harbor at all for the majority of gun owners.
Here, the Final Rule clashes with the text of the BSCA in at least three ways. First, it asserts that there is no “minimum number of firearms to actually be sold to be ‘engaged in the business’” for the purposes of the licensing requirement. “[A] single firearm transaction”— or even a mere offer to engage in a transaction — may suffice. But the BSCA says otherwise:The term “engaged in the business” means . . .
as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms[.]
Kacsmaryk also took issue with the rule’s assertion that “actual profit is not a requirement of the statute —it is only the predominant intent to earn a profit through the repetitive purchase and resale of firearms that is required”, as well as what he called the “evisceration” of the statute’s safe harbor provision.
That provision reads: The term “engaged in the business” . . . shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms[.]
Nothing in the foregoing text suggests that the term “personal collection” does not include firearms accumulated primarily for personal protection — yet that is exactly what the Final Rule asserts (“[T]he term [personal collection]shall not include firearms accumulated . . . for personal protection[.]”). Nor can Defendants’position be supported by its own interpretative policy of implementing terms’ “common meaning.”
… Yet Defendants maintain their interpretation despite acknowledging that “two-thirds of Americans report owning firearms primarily for ‘defense’ or ‘protection’” — thereby necessitating the absurdity that the statute’s safe harbor provision provides no safe harbor at all for the majority of gun owners.
Finally, Kacsmaryk held that the ATF rule flips “statute on its head by requiring that firearm owners prove innocence rather than the government prove guilt”.
Perhaps unsurprisingly, while Olmstead takes issue with Kacsmaryk’s ruling, she offers no explanation about why she thinks he made the wrong call. Instead, she unconvincingly attempts to tie in last week’s decision to an earlier ruling by Kacsmaryk dealing with the drug mifepristone.
Kacsmaryk’s injunction follows a similar tactic in his infamous ruling last year threatening nationwide mifepristone access: to undermine the authority of a federal agency. He issued a ruling overturning the Food and Drug Administration’s approval of the abortion pill, which had been on the market for nearly 20 years. Kacsmaryk, who has long-standing ties to the anti-abortion movement, deployed a Victorian-era rule in his argument to ban the drug, which he also cited in a separate ruling to ban drag performances.
Ultimately, the Supreme Court declined to override the FDA’s authority. It is unclear if they will follow the same line of thinking should the gun seller case reach the high court.
Well, there are some big differences between the two cases. First, while mifepristone may have been on the market for 20 years, the new ATF rule about who is “engaged in the business” hasn’t even been in effect for 20 weeks. It’s newly in effect, and it shouldn’t come as a surprise that it’s being challenged in several jurisdictions around the country.
Kacsmaryk also didn’t cite the Comstock Act (the “Victorian-era” rule mentioned by Olmstead) in granting the injunction. This is a challenge under the Administrative Procedures Act, and the judge had plenty of precedent to point to in his decision halting enforcement of the rule as it applies to the plaintiffs.
I realize we live in a day and age of media hyperbole, but if Olmstead truly believes that halting an ATF rule that could put hundreds of thousands of gun owners at risk of federal prosecution is really worse than Taney’s decision in Dred Scott denying citizenship to anyone of African descent, she needs to quit pecking at her keyboard and pick up a history book.
We’ve got more discussion of Olmstead’s unbelievable claim, as well as a conversation with Brownell’s Pete Brownell, on today’s Bearing Arms’ Cam & Co, so be sure to check out the show in the video window below.
