Biden’s Plan To Unilaterally Expand Background Checks for Gun Buyers Is Legally and Logically Dubious

President Joe Biden on Tuesday issued an executive order that the White House says will move federal regulation of gun sales “as close to universal background checks as possible without additional legislation.” The order relies on a legally contentious redefinition of who qualifies as a gun “dealer” and therefore must obtain a federal license and comply with related rules, including customer background checks.

Federal law defines a gun dealer as someone who is “engaged in the business of selling firearms,” which until last year was defined as “devot[ing] time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.” The 2022 Bipartisan Safer Communities Act excised “with the principal objective of livelihood and profit” and replaced it with “to predominantly earn a profit.”

As the Congressional Research Service explains, that change was “intended to require persons who buy and resell firearms repetitively for profit to be licensed federally as gun dealers, even if they do not do so with ‘the principal objective of livelihood.'” According to the amendment’s supporters, “there was confusion” about whether the definition of “engaged in the business” covered “individuals who bought and resold firearms repetitively for profit, but possibly not as the principal source of their livelihood.” The statutory definition still explicitly excludes “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.”

Biden’s order does not say exactly how he intends to expand the number of people who are classified as dealers. Instead it instructs Attorney General Merrick Garland, whose department includes the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), to “clarify the definition of who is engaged in the business of dealing in firearms.” Garland may do that through “rulemaking, as appropriate and consistent with applicable law.”

Back when Biden was vice president, the Obama administration considered a rule that would have covered anyone who sells 50 or more guns a year. “While the White House Office of Legal Counsel and then–Attorney General Eric H. Holder Jr. initially concluded the regulation was legally defensible,” The Washington Post reported in 2015, “some federal lawyers remained concerned that setting an arbitrary numerical threshold could leave the rule vulnerable to a challenge.” ATF officials “objected that it would be hard to enforce and that it was unclear how many sellers would be affected by the change.”

Unfazed by those concerns, Vice President Kamala Harris pitched an even more ambitious idea when she ran against Biden for the 2020 Democratic presidential nomination. Under her plan, a hobbyist or collector who sold five or more guns in a single year—one-tenth the cutoff conside