By Jim Saunders ©2024 The News Service of Florida
TALLAHASSEE — Attorney General Ashley Moody’s office this week argued that a judge should allow Florida to continue challenging a new federal rule that requires more gun sellers to be licensed and run background checks on buyers, contending the rule causes a financial hit to the state.
Lawyers in Moody’s office filed a 16-page response Monday after the Biden administration last month urged Tampa-based U.S. District Judge Charlene Edwards Honeywell to dismiss the state’s lawsuit. U.S. Department of Justice attorneys say Florida doesn’t have legal standing to challenge the rule.
But in the response, Moody’s office tried to show standing by arguing that the rule would affect sales-tax revenues because of a decrease in purchases of admission tickets to gun shows.
“Florida’s theory is based on a 6 percent sales tax that the state collects on admission to gun shows,” the response said. “It is not speculative or remote to expect a loss in revenue from the challenged rule because the entire point of the challenged rule is to prevent unlicensed gun sales at gun shows, which were previously treated as lawful. The federal government has characterized gun shows as a ‘critical gap in the background check laws’ that the challenged rule seeks to fill.”
The rule, which the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives finalized in April, is an outgrowth of a 2022 federal law, known as the Bipartisan Safer Communities Act, that made changes to the longstanding background-check system.
In part, the rule changed the definition of being “engaged in the business” as a firearms dealer who needs to be licensed, according to court documents filed by Justice Department attorneys. The revised definition applies to 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. The 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 the person’s personal collection of firearms.”
Florida’s lawsuit contends that the rule violates a federal law known as the Administrative Procedure Act. But to move forward with the case, the state needs to establish standing — essentially that it is being harmed by the rule — and has focused heavily on the possibility of losing tax revenues from gun shows.
In last month’s motion to dismiss the case, Justice Department attorneys argued the state did not “provide a basis for inferring a causal link between the rule and the myriad decisions about whether to attend certain gun shows made by individuals whose conduct in no way implicates the rule.”
“Indeed, there are plenty of reasons why Floridians might elect not to attend a particular gun show — e.g., a general increase in firearms prices, changes in purchasing preferences, poor advertising or show management, bad weather, et cetera,” the motion said. “And Florida’s complaint wholly fails to plausibly establish that the rule was instead the cause of the … decline in gun show attendance that the state alleges.”
Florida also has sought to establish standing by arguing that the rule would require the state to increase resources for the Florida Department of Law Enforcement to conduct background checks. While many states rely on the FBI to conduct background checks, Florida uses the state law enforcement agency.
In the motion to dismiss the lawsuit, Justice Department attorneys described as “self-inflicted harm” any need for the state to increase resources. The motion said, “Any harms Florida suffers from conducting background checks result from its voluntary decision to perform services that the federal government is otherwise willing to perform (and does perform for the majority of states) for free.”
Moody’s office, however, pushed back against those arguments in this week’s response.
“That a state has duly enacted plans and policies does not render all injuries interfering with those plans voluntary,” the response said. “To be sure, in some cases, a state’s claimed injuries may be self-inflicted. … Here, by contrast, Florida’s injury is that it must do more background checks and expend more resources as a direct result of ATF’s (the Bureau of Alcohol, Tobacco, Firearms and Explosives) unlawful rule. It does not claim injury based purely on its decision to conduct background checks but based on defendants’ unlawful decision to increase the burden of doing so.”
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