New ATF Guidance on Gun Sales Is Legally Meaningless (or Else It Would Be Unlawful)
One upshot of all this is that if the new ATF action is challenged in court, the proceedings will focus on these administrative law questions and will not get into whether a more expansive definition of “engaged in the business” is lawful, let alone whether requiring background checks is consistent with the Second Amendment. The first question a court will consider is whether the ATF document is, in fact, a guidance. The administration will argue that it is, as this is the best way to make a legal challenge go away. But in arguing that the “guidance” is a guidance, the administration will also be conceding that the document has no legal effect and that it does not require anything that is not already required under federal law.