ATF Overreaches Again – Threatens Rights

by Jeff Knox

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has a long history of excess and overreaching and they're at it again. Using exaggerated reports of gun smuggling from the US into Mexico as their justification, the agency has filed for an Emergency Regulation requiring gun dealers to keep track of their customers and file special reports to ATF whenever a customer purchases more than one semi-automatic rifle within any 5-day period. Such special reporting is already required for multiple sales of handguns and has proven to be thoroughly useless as a law enforcement tool.

ATF's requested regulation – which is unconstitutional, violates a statutory prohibition against firearms registration schemes, and was obviously filed as an "Emergency" simply as a means of bypassing Congress – would be "temporary," meaning that it would have to be renewed in 4 or 5 months, and is said to only apply to gun dealers in states bordering Mexico, though the regulation, as submitted, seems to be missing that specific limitation.

At this point the proposed regulation is awaiting approval from the White House Office of Information and Regulatory Affairs (OIRA.) Political observers will recall that OIRA is headed by President Obama's old friend Cass Sunstein who famously advocated for the abolition of all hunting and for the extension of legal rights – including the right to have a court-appointed attorney – to animals. While Mr. Sunstein is an attorney and college professor specializing, in part, in constitutional law, his record shows that his Constitution does not include the Second Amendment. It is expected that Sunstein's office will approve ATF's Emergency Regulation by the first week of January unless there is immediate and vehement objection from members of Congress and the public.

In the late '70s shortly after my late father, Neal Knox, took over the NRA's lobbying efforts, ATF leaders attempted to expand their power by implementing a regulatory scheme requiring that gun manufacturers add a government-defined 13-digit serial number to every gun and that dealers report detailed information, including that new serial number, to ATF for every sale. Records of those sales, guns, and purchasers were to be stored in ATF computers. It was gun registration, pure and simple. The scheme might have slipped through had it not been for the heightened visibility of ATF due to Dad's efforts and his immediate sounding of the alarm when the proposal was introduced.

Congress had upon numerous occasions debated the idea of a federal gun registration law and had rejected the idea on each occasion. For ATF to decide to bypass Congress and implement such a registration scheme via regulation was rightly perceived as an affront by many members of Congress and their indignant response was to remove some four million dollars from the agency's operating budget (the amount ATF said they expected to spend on the scheme.)

That overreach, along with egregious abuses of honest gun dealers by the ATF led to the introduction of the McClure-Volkmer Firearms Owners Protection Act to repeal some of the more onerous and confusing sections of the Gun Control Act of 1968.

It is to be hoped that current members of Congress will have a similarly indignant response to ATF's overreaching in this instance as here again the agency is trying to implement by regulation something which the Congress has considered and rejected in the past.

Rights opponents will argue that rights activists like me are overly sensitive and unyielding in our positions and that we reactively oppose any firearms regulations regardless of how benign or effective they may be. There will be an inclination to accept ideas like this and then place the burden of proof upon rights advocates to explain why it's a bad idea. Really, the burden of proof belongs to those who wish to interfere with our rights. It is up to ATF to show the legal authority to institute this proposed regulation and that it does not violate the spirit or intent of any existing law. It is also up to the ATF to show that their proposed regulation will be effective and productive as a means of fighting illegal gun trafficking.

The fact is that ATF can present no such evidence in support of their idea, just the suggestion that the proposal sounds reasonable and might be of use. That's not good enough.

It is overreaching for an agency to follow after Congress and enact regulations where Congress has refused to enact laws, especially where Congress considered and discarded those exact actions.

It is extra-legal for an agency to ignore statutory limitations barring the collection or archiving of information about gun purchasers, not to mention limitations under the Paperwork Reduction Act forbidding unnecessary increases in paperwork burdens.

The multiple-sales reporting scheme claims to be aimed at keeping guns out of Mexico, but it fails on that point as well. First, it will have little effect on gun smuggling in Mexico for smugglers familiarize themselves with the laws they are breaking. They will easily avoid ensnaring themselves in such an obvious trap. Second, while the actual number of guns that arrive in Mexico from the USA is impossible to determine, we know that the number being reported is inflated since the ATF only traces those guns selected by the Mexican authorities. There is strong evidence that American civilian gun shops are only one of many sources of guns in Mexico, and a minor one at that. Pictures of confiscated arms in the Mexican press routinely include grenades, rocket launchers and heavy machine guns, arms that aren't in the US civilian inventory.

Finally, the proposed multiple-sale scheme places a significant burden on dealers and puts them at increased risk of prosecution for clerical errors if they fail to detect a repeat buyer in a timely fashion.

You can tell the ATF and Congress that you oppose the ATF's overreach through any − or all − of the following ways:

1. Call the Office of Management and Budget, Office of Information and Regulation Affairs, Department of Justice, Desk Officer at (202) 395-6466.

2. E-mail Barbara A. Terrell, ATF, Firearms Industry Programs Branch at [email protected]

3. Call your Senators and Representative: United States Capitol Switchboard: 202-224-3121.

There is no such thing as reasonable infringement on liberty.

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