ATF Backs Down on Gun Sale Reports
For nearly three years, federally-licensed firearms dealers (“FFLs”) in southern border states have been badgered by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) to report sales of two or more rifles to the same person during any consecutive five-day period. Purporting to need this information to stop arms trafficking in and out of Mexico, ATF issued so-called “demand letters” to require indefinite reporting of multiple rifle sales by thousands of dealers, treating the independent FFL businessmen as though they were government employees.
ATF has no authority to require these reports. Although the Gun Control Act of 1968 authorizes ATF to issue demand letters, these were to be issued only when ATF is investigating certain specific buyers or specific FFLs, and this is how they were used for many years. They were not designed to impose a new permanent reporting requirement on dealers.
Moreover, in the Gun Control Act, Congress decided to require reporting only of multiple handgun sales, but not rifle sales. However, instead of taking its case to Congress to change the law and enact legislation requiring reporting on rifle sales, ATF took the law into its own hands.
In 2010, alleging that many of the guns sold by FFLs in the border states of Texas, Arizona, New Mexico, and California were being seized in Mexico, ATF required that every FFL in the border states report all multiple sales of rifles. ATF was challenged on this in court, but the courts sided with the ATF.
ATF seemed to have developed a sense of invincibility as well as a seemingly insatiable appetite for information about gun sales. In April of this year, ATF issued an “information collection request” to the Office of Management and Budget (purportedly pursuant to its duty under the Paperwork Reduction Act of 1995) relating to its requirements to report multiple rifle sales. ATF’s request purported to be an innocuous proposal to simply extend the dates of the current reporting. However, there were many reasons to believe something far more nefarious was afoot.
Rather than simply extending its current information collection, ATF’s request would have vastly expanded the scope of the information that it requires. If finalized, all FFLs -- not just the ones in the border states -- would be required to report all sales of multiple rifles within five consecutive business days. Those reports would be required regardless of whether the sales were to one buyer or multiple buyers. Except for a smattering of small FFLs, this new reporting requirement would mean that all FFLs in the nation could be required to report to the ATF virtually all their rifle sales.
Recognizing that this new ATF request was not just an “information collection request,” but rather a vast expansion of reporting requirements, Gun Owners of America, Inc. and Gun Owners Foundation filed comments with ATF opposing the request. Our comments protested this latest ATF power grab, using back channels to steal authority. The GOA/GOF comments explained that Congress also had prohibited ATF from creating a national database of gun owners -- exactly the type of national gun registry that these regulations would have allowed ATF to develop. We argued that ATF cannot do indirectly what it is barred from doing directly -- demanding information about many, if not most, sales of rifles in the country.
Only two days after GOA and GOF filed comments exposing ATF’s strategy, ATF backed down, submitting to the Federal Register an amended notice (that was published in the June 23 Federal Register) limiting the reporting requirement to the FFLs in the four border states (Arizona, California, New Mexico, and Texas), and limiting the reporting to multiple sales only if made to the same buyer in the five-day period.
Even though the American people won this battle, the war against the Second Amendment goes on. The public has another 30 days to file comments opposing the ATF rule and should do so. Congress has never granted ATF the authority to require FFLs to file reports of multiple rifle sales, and the collection of information on rifle sales which ATF began in 2010 should end.
Gun owners are not so naive as to believe that ATF has given up its policy of taking incremental steps to lay the groundwork to create the very national gun registry that Congress has prohibited. Doing the bidding of President Obama, ATF will not stop in its attacks upon American gun owners until either Congress or the courts take strong action to restore the rule of law. The best step in this direction would be the abolition of ATF itself.