A federal judge has refused Attorney General Kris Kobach’s request to stop a new federal rule requiring anyone who sells firearms through the mail, at flea markets and gun shows as well as on the internet to get licensed and conduct background checks.
In litigation led by Kansas on behalf of 20 other states, Kobach argued the rule was unconstitutional because it was vague, violates the Second Amendment and circumvents Congress.
He sought a national injunction to at least temporarily stop the law while it was litigated but came up short in federal court. The case continues after the injunction was denied.
Kobach said the rule was an attempt by President Joe Biden’s administration to “strip away” constitutional gun rights through regulations developed by the Bureau of Alcohol, Tobacco, Firearms and Explosives.
Kobach said the rule would make many “law-abiding gun owners felons if they sell a firearm or two to family or friends.”
Federal law has required gun shop owners or people whose primary livelihood is selling guns to register with the federal government to obtain a license, which mandates a background check to ensure the buyer is not prohibited from owning a gun.
The new rule expanded the definition of gun dealers to include anyone intending to “predominantly earn a profit” from the sale of firearms rather than needing to prove it as their primary livelihood.
Steven Dettelbach, director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, touted the importance of the rule when it became final in April.
“There is a large and growing black market of guns that are being sold by people who are in the business of dealing and are doing it without a license,” Dettelbach said.
“Therefore, they are not running background checks the way the law requires. And it is fueling violence,” he said.
U.S. District Judge Toby Crouse denied the motion for the injunction, questioning whether the plaintiffs had standing in the case and whether they successfully demonstrated that they were substantially likely to succeed on the merits.
“While plaintiffs have identified serious flaws with the final rule and may be able to succeed on the merits, they have not established that the state of play is so one-sided as to warrant injunctive relief at this point,” Crouse wrote.
“In short, serious issues appear in plaintiffs’ standing and merits arguments that prevent them from making the strong showing necessary to obtain injunctive relief.”
Crouse once worked as the state’s top appellate lawyer for former Attorney General Derek Schmidt. He was appointed to the federal bench by former President Donald Trump.
Kobach initially brought the lawsuit in May in the Eastern District of Arkansas, but the case was transferred to Kansas when a judge there dismissed the state of Arkansas from the case for a lack of standing.
In this case and at this point, Crouse said the plaintiffs had not shown “clear entitlement” to an injunction.
“Plaintiffs — all 24 of them — pled only questionable injuries-in-fact,” he wrote.
“Even if one of them clears the standing hurdle, that plaintiff must then sort out a series of complex arguments that would benefit from further development.
“Some of those arguments are much stronger than others…,” Crouse wrote.
“Yet even the best arguments have not been supported such that they suggest any of the plaintiffs are ‘substantially likely to succeed on the merits,’” he said.
“Under these circumstances, a court should withhold equitable relief.”
Crouse questioned the standing of the three individual plaintiffs in the case, Phillip Journey, Allen Black and Donald Maxey. He said the harm they alleged appeared “speculative.”
He said that two of the state plaintiffs – West Virginia and Montana – did not plead any facts to demonstrate that they had been harmed.
He said the other states rely on a “speculative” sales-tax “theory,” contending that the rule would cause states to lose sales tax revenues because there would be fewer gun sales.
Crouse also noted that the rule challenged by Kobach started before the federal court in Arkansas had even ruled in dismissing the state of Arkansas from the case.
“Plaintiffs seek a preliminary order that would upend the current legal landscape as it
has existed since their suit was transferred to Kansas,” he wrote.
Crouse noted that Texas is the only state where the rule was not implemented.
He said that Texas, along with three other states and several nonstate plaintiffs, sued the federal government over the rule before it started.
He said Texas made many of the same arguments that were put forward in the Kansas case brought by Kobach.
He said those arguments were found likely to succeed on the merits, so the Texas judge granted a preliminary injunction that initially only applied to Texas but has now been expanded to include Louisiana, Utah and Mississippi.
But Crouse said the judge limited that injunction to Texas and several nonstate plaintiffs, finding that the remaining plaintiffs had not demonstrated standing sufficient for “relief at that stage of litigation.”
