The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) has published the final lost and stolen in transit rule in the Federal Register. NSSF has actively opposed the rule since a version was first published in 2000. The rule becomes effective 30 days from today, on Feb. 11. Apart from ATF’s lack of statutory authority to impose the rule, the major problem with this rule is that it requires FFLs to report as lost or stolen in transit firearms that have already left their inventory. Once firearms have been sold FOB, shipped and recorded as a disposition, this rule essentially requires that they still be considered part of the shipping FFL’s inventory for purposes of timely reporting to ATF in the exceeding rare case when they are lost or stolen while in transit. Rather than putting the onus on the receiving FFL, who would best know whether the firearms they paid for and are expecting have arrived, and continuing the effective long-standing voluntary reporting program, ATF chose to publish the final rule:
Here is the whole shebang: https://www.gpo.gov/fdsys/pkg/FR-2016-01-12/pdf/2016-00112.pdf.
Despite the failings and negative media exploitation of the ATF as a whole (Waco, Ruby Ridge, Operation Fast & Furious, ammo bans, new gun-trust rules and the enforcement of numerous executive orders come to mind), the individual agents who process our National Firearms Act (NFA) and Federal Firearms License (FFL) paperwork are usually kind, helpful and often sympathetic human beings. Many of them are not anti-gun. I know ATF agents who have served our country through military service, or have operated their own gun-related businesses.
The enlightened gun owner must remember that it was not the ATF that passed the tax act in 1789, or the NFA in 1934, or even the GCA in 1968; Congress did.
The truth is, many gun owners loathe the ATF. Gun business owners fear they will fail to dot an “i” or cross a “t,” and lose their livelihood. Gun owners unabashedly abhor the unrelenting infringement on our constitutional protections by our own government, and many fear they will accidentally commit a felony and face prosecution for their ignorance. One of the ATF’s assistant directors suggested that no matter what side you are on, we can all agree that we do not want the bad guy to have a gun. If we can agree on that, then we’re working together.
The problem, of course, is the law’s ever-expanding deﬁnition of bad guy, and what, exactly, constitutes public safety. In the 1920s, public safety meant not allowing hardworking Americans to enjoy a beer at ﬁve o’clock. A tax on alcohol in 1789, rather than any criminal activity, gave birth to the agency and it was nestled under the Department of Treasury. While prohibition ended in 1933, the NFA passed Congress in 1934, implementing America’s ﬁrst tax on ﬁrearms and giving this tax-enforcement agency another reason to exist. At that time the NFA imposed an outrageous $200 tax – the equivalent of over $3,526 in today’s value – on gangsters’ favorite ﬁrearms: machine guns, shortbarreled shotguns and suppressors (silencers).
Rather than expect the criminals to obey the law and register ﬁrearms – which no one actually expected would happen – Congress intended to remove these weapons from circulation amongst the citizenry by taxing them into inﬁnity. If citizens could not aﬀord them, they could not buy them; if they could not buy them, they could not get into criminal hands. By passing the NFA, our government oﬃcially allowed criminals to dictate the interpretation of the 2nd Amendment, and concurrently targeted the ﬁrearms possessed by responsible gun owners in a severely misguided eﬀort at crime control.
Today, nothing sends chills down the backs of law abiding gun owners quite like a federal law-enforcement agency speciﬁcally trained to spot and apprehend people for violating ﬁrearms laws. This chill is not because these gun owners intend to commit crimes – it is because they do not.
Firearms laws are not like speed limits where there are clear signs posted along the highway to tell you what the limitations are and when you might be facing a violation. Instead, gun owners are left to their own devices to sort through the many levels of federal, state and local laws, as well as the ever-expanding interpretations of those laws by the ATF and judges who do not always agree.
The American gun owner suﬀers from the aﬄiction of so many laws, and most have little, if any, comprehension of all the ways they can run afoul of the imbroglio comprising America’s gun law system. There is no cure for criminal conduct. Once you have violated the law, accidentally or not, you cannot simply undo the criminal behavior. In other words, you cannot give a gun back to the person who sold it to you in another state without using an FFL, and make things OK. I have posed this question to ATF agents, who conﬁrmed that there is no way to undo criminal behavior and make it right. While ﬁrearms prohibitionists cannot understand how a person could accidentally commit a crime, it is actually pretty easy to transgress in the world of gun laws and face imprisonment or a hefty ﬁne.
Do you think you own an ordinary pistol?
Take your ordinary pistol (less than 26 inches in length) and add an angled foregrip. You still legally own a pistol. Add a bipod, and you still legally own a pistol.
Add a vertical foregrip, and you have suddenly manufactured a ﬁrearm subject to the NFA – which is subject to enforcement by the ATF – that exposes the accidental transgressor to federal felony punishments.
You now own a ﬁrearm known as an AOW, or any other weapon. Because the ﬁrearm is now subject to the NFA, the gun’s lower receiver must ﬁrst be registered, or serial stamped and recorded, as an AOW. Registration requires payment of a $5 tax and ATF approval.
Possession of an unregistered AOW is a felony punishable by 10 years in federal prison and up to $250,000 in ﬁnes.
If you take the same pistol, but add a full stock to it so it is hen designed to shoot from the shoulder, you have unlawfully manufactured a short-barreled riﬂe, or SBR. SBRs are NFA ﬁrearms as well. The SBR’s receiver must be registered as an SBR, a $200 tax must be paid and ATF approval must be issued before the riﬂe is manufactured. Possession of an unregistered SBR is also a felony punishable by 10 years in federal prison and up to $250,000 in ﬁnes.
Another hot topic is the Sig Arms brace, a device that looks similar to a buttstock, but operates solely as an arm brace, based on the design. Wrap it around your forearm for stability, and you have an ordinary pistol; use it to shoot from your shoulder, and you may have an SBR, according to the ATF.
Did you inherit a collection from your grandfather?
If grandpa brought something back from the war, such as a fully automatic riﬂe, and never registered that riﬂe with the ATF, you are in unlawful possession of an NFA ﬁrearm.
Do you think you know whether you possess a machine gun? Did you know that Congress changed the deﬁnition of machine gun when it passed the Firearm Owners Protection Act (FOPA) in 1986? Since then, you own a machine gun if you simply own a part “designed and intended solely and exclusively” to convert a weapon into a machine gun. This has come as a shock to some of my clients who have been greeted by ATF agents asking to collect their machine guns. You see, until the 1980s, it was fairly common to purchase a part known as a drop-in auto sear (DIAS), which, when installed into certain AR-style riﬂes with M16 internal components, would convert the riﬂe into a fully automatic ﬁrearm. Up until 1998, the ATF’s position was that any DIAS manufactured before 1981 was not subject to the NFA. In 1998, however, a federal judge decided that the ATF does not have the authority to make such an exception to the law, and that all ﬁrearms dealers “would do well to assume” that any transfers of DIASs are subject to the NFA, regardless of when they were manufactured (United States versus Cash, 149 F.3d 706, CA7 1998).
The problem does not stop with simply having too many laws. It is one task to decipher thousands and thousands of laws that regulate ﬁrearms, many of which defy common sense, but it is a completely diﬀerent task to have to battle the amorphous beast that is the ever-changing American gun-law system. The ATF may make a decision one day and change it the next. This is the same with federal court. A federal court on one side of the country may decide a case one way, and a federal judge in another district may decide diﬀerently with a very similar set of facts.
It is no wonder that when most people think about the ATF, they think about rules, restrictions, enforcement of rules against people who didn’t mean to break the law and iron-ﬁsted enforcement of rules that make no sense. If you have the sense that the gun laws that apply to individual gun owners are daunting, think about all the rules, regulations and penalties that apply to gun businesses.
After the assassination of President John F. Kennedy, Attorney General Robert Kennedy and Dr. Martin Luther King, Jr., Congress passed another federal law that I frequently see folks unintentionally violate: the Gun Control Act, or GCA. This law imposed stricter licensing and regulations on the ﬁrearms industry, established new categories of ﬁrearms oﬀenses and prohibited the sale of ﬁrearms and ammunition to felons and certain other persons. This law prevents young soldiers who may sacriﬁce their lives for our country from purchasing a handgun from a gun shop to defend their own families until they reach the age of 21. It also prevents a gun owner from transferring ﬁrearms across state lines without using a dealer. There is no exception for family. If you want to give a ﬁrearm to your brother who lives in another state, you must send it to an FFL in his state instead of handing it to him at the Christmas family dinner. If you don’t, you have committed a felony, and so has he.
Gun owners frequently ask if ATF agents actually pursue such cases. The answer is: it depends. Many times, either no one is the wiser or ATF has more important things to do. However, I have been told by ATF agents that they will pursue cases against people who ignorantly violate the law. History also tells us that the ATF has been known to go after the unsuspecting gun owner or gun business owner. After the passage of GCA in 1968, a Senate subcommittee in 1982 concluded that 75 percent of ATF prosecutions “were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations.” The subcommittee’s report supported the passage of the Firearm Owner’s Protection Act in 1986. Compromises to the proposed new law led to some harsh outcomes for gun owners, such as the ban on post-1986-made civilian machine gun sales. This ban was passed despite the fact that over 175,000 machine guns were registered with the ATF at the time, and not a single one had been used in a crime.
Under federal law, the federal government is not supposed to maintain a registry of gun owners. In fact, the FBI is required to destroy background check records for gun purchasers before the start of the next business day. The truth is, the federal government still has several hundred million records of gun owners, including multiple sales reports, trace records and the records of dealers who have gone out of business.
When I asked a former director of industry operations about her opinion of the ATF’s reputation, she explained that the ATF has a diﬃcult job. People are trying to do the right thing, but too often, there are misunderstandings about the laws.
This former director conﬁrmed that people are “on their own” to ﬁgure out how to correct gun-law violations. Having sat through my own FFL licensing inspection meeting, I can conﬁrm that it is impossible, in a few hours, for an agent to thoroughly review and educate new gun dealers on the laws. They hit the highlights, ask if you have any questions – questions which most people won’t even know to ask – and check the boxes that they went over a particular law with you and that you had no questions about it.
She also recognized that based on her prior experience working for the ATF, very few people actually intend to break the laws, but there are too many rules and regulations, especially for dealers and manufacturers, to do things perfectly on a daily basis.
I entirely agree with this point. It has been my experience as both a prosecutor and a civil-law attorney that most lawabiding gun owners who have run afoul of the law did so not because they were attacked and had to defend their lives, but because they violated a law they didn’t know existed. The gun laws aﬀecting most gun owners every day are those that pertain to how a person can carry (open, concealed, loaded, unloaded), where they can carry (illegal in a guided federal park cave tour but legal in the open park area), who can
possess a ﬁrearm (age restrictions, state law restrictions, permitting restrictions), and how they can transfer a ﬁrearm (in state, across states, sale, inheritance) without committing an accidental felony.
At the end of the day, the ATF is charged with public safety and helping gun owners and gun businesses comply with the laws. Many of the agents who work for the ATF try to do just that. The Department of Justice’s direction to the agency, à la Operation Choke Point, an initiative that investigated US banks and the businesses believed to be a high risk for fraud and money laundering, or Operation Fast & Furious, where the ATF purposely allowed licensed ﬁrearms dealers to sell weapons to illegal straw buyers, hoping to track the guns to Mexican drug cartel, has recently left a growing section of the public who are disquieted by the motives, character and actions of ATF. The recent proposals for more gun control and the country’s great divide on the protection to be aﬀorded by the 2nd Amendment further enhances this distrust, and keeps the pro-gun community on the defensive.
The enlightened gun owner must remember that it was not the ATF that passed the tax act in 1789, or the NFA in 1934, or even the GCA in 1968; Congress did. If we could just agree on one more thing – what that little word “infringed” really means – we might gain an agency that could focus entirely on its intended purpose, and protect the law-abiding citizens from the true criminals. ASJ
Alex Kincaid is not only a nationally renowned gun-law attorney, she is also the author of Infringed, where her years of expertise and working with our nation’s laws come together.
“The most frequent type of trafficking channel identified in ATF investigations is straw purchasing from federally licensed firearms dealers. Nearly 50 percent . . . .” Straw purchasers are people who pass background checks and buy guns for criminals, defeating the background check system.
“About 1.4 million guns, or an annual average of 232,400, were stolen during burglaries and other property crimes in the six-year period from 2005 through 2010.” The FBI’s stolen firearm file contained over 2 million reports as of March 1995. The BATFE has reported “Those that steal firearms commit violent crimes with stolen guns, transfer stolen firearms to others who commit crimes, and create an unregulated secondary market for firearms, including a market for those who are prohibited by law from possessing a gun.” Even gun control supporters have said, “approximately 500,000 guns are stolen each year from private citizens. . . . Obviously, these stolen guns go directly into the hands of criminals.” A study conducted by gun control supporters found that in 1994 “About 211,000 handguns and 382,000 long guns were stolen in noncommercial thefts that year, for a total of 593,000 stolen firearms.”
For more fact-checking help, contact Catherine Mortensen with the NRA Institute For Legislative Action at firstname.lastname@example.org.