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ATF Associate Deputy Director Pens “White Paper” on Reducing Needless Firearms Regulations

Friday, February 10, 2017

ATF Associate Deputy Director Pens “White Paper” on Reducing Needless Firearms Regulations

On Monday, the Washington Post reported on a “white paper” written by Bureau of Alcohol, Tobacco, Firearms and Explosives Associate Deputy Director and Chief Operating Officer Ronald Turk that outlines several changes that ATF could make to decrease the burdens placed on gun owners and the firearms industry while maintaining public safety. Titled “Options to Reduce or Modify Firearms Regulations” and dated January 20, 2017, the document covers a raft of issues that NRA has previously worked to address, and vindicates NRA’s long-held contentions about the dubious efficacy of many firearms regulations. While the white paper does fail to address some of the legitimate concerns of gun owners in certain areas, the majority of document should serve to inform ATF regulatory reform efforts moving forward.

The document correctly concludes that “There are many regulatory changes or modifications that can be made by or through ATF that would have an immediate, positive impact on commerce and industry without significantly hindering ATFs mission or adversely affecting public safety.” And to this end, the paper individually addresses a handful of areas where regulation could be curtailed.

[Click here to read “Options to Reduce or Modify Firearms Regulations” by ATF Associate Deputy Director and Chief Operating Officer Ronald Turk.]

Sporting Purposes Test

Under 18 U.S.C. § 925(d), “The Attorney General shall authorize a firearm or ammunition to be imported or brought into the United States or any possession thereof if the firearm or ammunition… is generally recognized as particularly suitable for or readily adaptable to sporting purposes.”

Infamously known as the “sporting purposes test,” this portion of federal law has been used as justification to prohibit the importation of certain types of firearms to the U.S. In 1989, President George H.W. Bush used the sporting purposes test to bar the importation of 43 types of semi-automatic rifles. Unsatisfied with the breadth of the Bush ban, President Bill Clinton used this provision to ban the importation of 58 additional types of semi-automatic rifles. The abuse of the law was so evident that Clinton White House staffer Jose Cerda remarked, “We are taking the law and bending it as far as we can to capture a whole new class of guns.”

In challenging the legitimacy of the current configuration of the sporting purposes test, the paper notes the increasing use of semi-automatic firearms in the modern shooting sports. Turk explains,

Since the sunset of the Assault Weapons ban in 2004, the use of AR-15s, AK-style, and similar rifles now commonly referred to as “modern sporting rifles” has increased exponentially in sport shooting. These firearm types are now standard for hunting activities. ATF could re-examine its almost 20-year-old study to bring it up to date with the sport shooting landscape of today, which is vastly different than what it was years ago. Action shooting sports and organizations such as 3 Gun and the United States Practical Shooting Association (USPSA) have also drastically expanded in recent years. 

This would be a departure from ATF policy, which has historically dismissed the modern shooting sports when making sporting purposes determinations. As recently as July 2012, when ATF released an update to their “Study on the Importability of Certain Shotguns,” the agency rejected arguments by public commenters that practical shooting competitions should come within the definition of sporting purposes. Straining to deny the legitimate sporting uses of many semi-automatic shotguns, ATF compared the number of members of the United States Practical Shooting Association to the obviously much larger total number of licensed hunters in the U.S. The difference, ATF contended, showed that the modern shooting sports should have no bearing on determining whether a firearm is “suitable for or readily adaptable to sporting purposes.” Turk’s recognition of this folly is a welcome development.

The paper goes on to explain that the import bans do not advance a public policy goal. Turk notes, “Restriction on imports serves questionable public safety interests, as these rifles are already generally legally available for manufacture and ownership in the United States.”

Suppressors

In recent years, NRA has worked to roll back state laws that restrict the possession or use of suppressors. This, and advances in the industry, have led to something of a renaissance in the production and use of firearm suppressors. The increasing popularity of these devices, and their health benefits for shooters, has led NRA, pro-gun lawmakers, and even Donald Trump Jr., to lead an effort to remove suppressors from the registration and tax burdens imposed by the National Firearms Act.

It appears at least some in ATF acknowledge the benefits of suppressors and support their removal from the NFA. The white paper notes, “In the past several years, opinions about silencers have changed across the United States. Their use to reduce noise at shooting ranges and applications within the sporting and hunting industry are now well recognized.”

The paper goes on to explain the outmoded nature of the current regulation of suppressors and that  removing the devices from the NFA poses little public safety risk, as they are rarely used in crime. Turk notes, 

While DOJ and ATF have historically not supported removal of items from the NFA, the change in public acceptance of silencers arguably indicates that the reason for their inclusion in the NFA is archaic and historical reluctance to removing them from the NFA should be reevaluated. ATF’s experience with the criminal use of silencers also supports reassessing their inclusion in the NFA. On average in the past 10 years, ATF has only recommended 44 defendants a year for prosecution on silencer-related violations; of those, only approximately 6 of the defendants had prior felony convictions. Moreover, consistent with this low number of prosecution referrals, silencers are very rarely used in criminal shootings. Given the lack of criminality associated with silencers, it is reasonable to conclude that they should not be viewed as a threat to public safety necessitating NFA classification, and should be considered for reclassification under the [Gun Control Act]. 

FFL Reform

In 1993, President Bill Clinton directed the Treasury Department to further scrutinize Federal Firearms Licensees and applicants in order to reduce the overall number of firearms dealers. These efforts had the effect of significantly reducing the number of FFLs in the country, eliminating many small dealers who operated out of their homes.

The white paper contemplates efforts to loosen some of the business-related requirements for obtaining an FFL. The paper notes,

The marketplace has changed significantly in recent years, and ATF’s guidance to FFLs on these issues has not kept pace with developments in commerce. Classic “brick and mortar” storefronts with an on-hand inventory and set “front-door” business hours often no longer apply in today’s modern marketplace.

This, Turk explains, “would have no negative impact to public safety” and - in his view - might have salutary effects, as it “would encourage more sales and business through a licensee.”

Further, Turk discusses permitting FFLs to conduct sales at gun shows outside of the state in which they are licensed. Permitting such sales, Turk argues, “would have no detrimental effect on public safety.”

Pistol Stabilizing Braces

In recent years firearm owners have increasingly made use of products like Sig Sauer’s SBX or SB15 pistol stabilizing brace. A boon to disabled shooters, the ATF has approved such items for use on pistols. However, in January 2015, ATF issued an open letter explaining that,

[a]ny person who intends to use a handgun stabilizing brace as a shoulder stock on a pistol (having a rifled barrel under 16 inches in length or a smooth bore firearm with a barrel under 18 inches in length) must first file an ATF Form 1 and pay the applicable tax because the resulting firearm will be subject to all provisions of the NFA.

According to ATF’s convoluted logic,

“[b]ecause the NFA defines both rifle and shotgun to include any “weapon designed or redesigned, made or remade, and intended to be fired from the shoulder,” any person who redesigns a stabilizing brace for use as a shoulder stock makes a NFA firearm when attached to a pistol with a rifled barrel under 16 inches in length or a handgun with a smooth bore under 18 inches in length.”

In challenging this interpretation of the law, the white paper points out, “ATF has not made another NFA determination where a shooter’s use alone was deemed be a ‘redesign’ of the product/firearm resulting in an NFA classification.” Turk also suggests that,

To mitigate this confusion and concern, ATF could amend the determination letter to remove the language indicating that simple use of a product for a purpose other than intended by the manufacturer – without additional proof or redesign – may result in re-classification as an NFA weapon.

Re-importation of Defense Surplus Firearms

Longtime NRA supporters will be familiar with the long-running effort to repatriate tens of thousands of M1 Garand rifles and hundreds of thousands of M1 carbines from South Korea. NRA has repeatedly worked with our friends in Congress to promote a legislative remedy that would allow for these firearms to be brought home for the benefit of American collectors.

In 2010, Hillary Clinton’s State Department blocked the importation of these rifles, citing public safety concerns. At the time, a State Department spokesperson commented that “The transfer of such a large number of weapons -- 87,310 M1 Garands and 770,160 M1 Carbines -- could potentially be exploited by individuals seeking firearms for illicit purposes.”

Rejecting this rationale, the paper notes,

There is no clear public safety reason why taxpayer-funded US-origin C&R defense articles should be denied re-importation to the American public, while many non-U.S.- origin C&R items are approved. Additionally, these items do not represent any discernable public safety concern, as demand lies with collectors of vintage military firearms.

Turk also points out,

Many M1 Garand rifles have been approved for importation in the past, setting precedence for this to occur. The more recent denials were in part due to perceived potential that they may be used in crimes, for which there is little, if any, evidence for such a concern.

Firearms Registration

As with most government products, the ATF white paper is not perfect. The document is a bit too dismissive of the concerns of gun owners and dealers regarding some firearm transfer recordkeeping requirements.

In 2011, President Barack Obama’s Department of Justice announced a firearm transfer reporting scheme, the purported purpose of which was to combat Mexican drug cartels. The measure requires gun dealers in the Southwest border states to report to ATF information pertaining to the multiple sale of rifles that are larger than .22-caliber and able to accept a detachable magazine that are made to a single individual within a five-day period. Turk appears to approve of this effort, claiming that it has some beneficial use.

First, regardless of any perceived value the reporting requirement may have, the scheme is a blatant perversion of federal law. Permitting ATF to operate this demand letter scheme allows the agency to circumvent important safeguards in 18 U.S.C. § 923(g) that are meant to protect FFLs from agency harassment. Further, 18 U.S.C. § 923(g)(3)(A) requires FFLs to report multiple sales of handguns to a single buyer within five consecutive days. That Congress did not impose this same requirement for multiple rifle sales makes clear that they did not intend to burden rifle transactions in this manner.

Second, for those who have made lawful purchases of this type, the reporting requirement amounts to gun registration. This scheme not only creates significant privacy concerns for gun owners in the Southwest border states, but also circumvents 18 U.S.C. § 926(a), which prohibits the federal government from creating a firearms registry.

Overall, Turk’s ATF white paper is an important contribution to the development of a more intelligent firearms regulation regime, informed by actual experience in administering ATF regulations. Unsurprisingly, gun control groups, who have little knowledge of how firearms regulations work in practice and are unconcerned with the efficacy of a given rule aside from its ability to burden gun owners and the firearms industry, have been vocal in their condemnation of the paper. ATF should ignore such reflexive comments to this well-considered document and move forward with efforts to free gun owners, the firearms industry, and the agency from regulations that serve no public interest.

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