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S. 77: The Firearms Dealer Harassment Act

Wednesday, February 28, 2007

Senator Charles Schumer, (D-N.Y.) has introduced S. 77, the "Anti-Gun Trafficking Penalties Enhancement Act of 2007." A more appropriate title would be the "Firearms Dealer Harassment Act." S. 77 directly threatens federal firearms license holders (FFLs) and gun buyers in two important ways.

First, S.77 would require that currently confidential Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) records on firearms traces be turned over--on demand--to any government entity, for any purpose. (Currently, information from firearms traces can only be used in bona fide criminal investigations by law enforcement agencies.) S. 77 would require that these records be made available to any government agency for any reason, or for no stated reason whatsoever, without any justification or respect for privacy.

NRA has fought for years to maintain the confidentiality of this data and not allow it to be abused by anti-gun politicians. S. 77 would reverse those victories. (For more information, see "The ‘Tiahrt Amendment’ on Firearms Traces: Protecting Gun Owners` Privacy and Law Enforcement Safety".)

Anti-gun activists and politicians have sought this confidential data for use in lawsuits against the firearms industry; its release would lead directly to increased levels of harassing lawsuits and more firearms dealers being forced out of business. Gun buyers would find fewer dealers, higher prices and a smaller selection of firearms.

As damaging as this provision would be to firearms dealers, another provision could do even more harm. S. 77 would unleash the federal government to harass FFL holders at will, for any reason, as often as it chooses.

S. 77 would remove the restriction on BATFE that allows it only one regulatory inspection of dealers per year, and instead grant unlimited authority to go after dealers without need to show cause. This change is completely unnecessary, since BATFE already has significant legal methods for regulating dealers and enforcing firearm transfer laws:

  • Currently, BATFE can conduct FFL inspections once a year, without a warrant, to ensure all dealers operate in compliance with the law.
  • BATFE can conduct an inspection of a dealer without a warrant as a part of an ongoing criminal investigation.
  • BATFE can, of course, get a warrant when it suspects a dealer of criminal activities.

The law requires FFL holders to cooperate with all types of inspections. However, BATFE is prohibited from conducting inspections outside these limits to eliminate the type of harassment that was common before passage of the Firearm Owners’ Protection Act in 1986. S. 77 would turn back the clock on this vital reform, with devastating consequences for gun dealers and gun owners’ rights.

Finally--and perhaps most ominously--S. 77 would define certain already-illegal firearm transactions as "racketeering activity" under the "Racketeer Influenced and Corrupt Organizations Act" (RICO). Certainly, no one condones illegal sales (such as transfers to prohibited persons) but including them in RICO is overkill:

  • Under RICO, if a person commits two or more acts of "racketeering activity" within ten years, that "pattern of racketeering activity" can subject the violator to a 20-year prison term (in addition to the current sentences for the actual firearm violations) and seizure of assets.
  • Current sentences for this type of violation begin at five years in prison and a $250,000 fine per gun--so a person with a "pattern" of violations would already be subject to at least a decade in federal prison and a half-million dollar fine.

Even more disturbing, anyone "injured" by a "pattern of racketeering activity" can bring a civil suit against the violator; a successful plaintiff "shall recover threefold the damages he sustains and the cost of the suit." Of course, a crime victim couldn’t be "injured" by the illegal transfer itself--only by a later criminal use of the gun--so S. 77 would open a whole new path for anti-gun politicians and activists to sue gun owners and dealers for the actions of criminals.

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