According to the president and his ever-obliging attorney general, a “crackdown” is coming on America’s federally licensed gun dealers (FFLs), with “zero tolerance” for allegedly illegal behavior. While no decent person – least of all the NRA or its members – supports arming dangerous criminals, a recent case from Texas provides disturbing hints as to what this policy might look like in practice.
Biden announced the new effort last week while finally acknowledging what was already obvious to most Americans: violent crime, particularly in America’s cities, is on the rise.
It came as no surprise, however, that Biden was unwilling to admit the culpability of his own party’s disastrous “defund the police” initiatives, as well as a host of “progressive” criminal justice “reforms” that had the effect of curtailing enforcement and allowing dangerous offenders to roam the streets.
Instead, the administration continued its long string of blood libel by falsely blaming the NRA, America’s law-abiding gun owners, and the industries that serve them for the violence decimating many of the nation’s most vulnerable communities.
Attorney General Merrick Garland disclaimed any intention to intensify efforts to punish those actually pulling the triggers. “[A]rrests and convictions,” he indicated, are not “ends in themselves.”
Rather, the administration’s efforts will focus on supply side measures to broadly curtail access to firearms, even those – like braced, large-framed pistols and semiautomatic rifles – rarely implicated in the crimes the administration is supposedly trying to prevent.
The Texas case concerned Robert and Samuelia Arwady, who held an FFL for their business between 1989 and 2007.
The government charged Robert Arwady for alleged record-keeping violations arising out of a 1996 compliance inspection of his firearms business. He was, however, acquitted on all counts.
The Arwady’s attorney maintains that the couple had a contentious relationship with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) because they refused to cooperate with ATF as informants, including in operations where the ATF allowed criminals to obtain usable firearms.
ATF claimed to find additional record-keeping violations and the apparent disappearance of some 600 firearms during a 2004 compliance inspection, circumstances Arwady blamed on the illicit activities of a police sergeant who was working for the business part-time. The agency brought criminal charges against the employee, who in a plea deal agreed to provide testimony against Mr. Arwady.
Mr. Arwady was eventually able to account for 570 of the supposedly missing firearms, but ATF in 2006 refused to renew his FFL. He filed numerous appeals challenging this decision, but eventually decided to close his firearms sales business and transfer his remaining inventory (some 150 guns) to himself for liquidation.
A provision of a federal law makes clear that “liquidating a personal collection of firearms” is not indicative of the “principle objective of livelihood and profit” that triggers the need for an FFL in the case of repetitive firearms sales.
Another law, in the section proscribing rules for dealer licensing, states: “Nothing in this chapter shall be construed to prohibit [an FFL] from maintaining and disposing of a personal collection of firearms, subject only to such restrictions as apply in this chapter to dispositions by a person other than [an FFL].”
In any case, Mr. Arwady arranged these sales through other FFLs. Thus, the firearms were accordingly documented in those FFLs’ books and sold to the ultimate customers with the usual formalities of transfer paperwork and background checks on the perspective buyers.
ATF agents became aware that Mr. Arwady was advertising these sales on the Internet. One undercover agent tried to induce Mr. Arwady to sell him a gun without a background check. Arwady refused. Another tried to get Mr. Arwardy to buy and resell a firearm to him, and Arwady again refused.
In 2009, the ATF obtained a search warrant for various properties belonging to Mr. Arwardy and seized 165 firearms. The government then commenced a civil forfeiture proceeding to seize the firearms, but this action was dismissed in 2012. Notably, a 1986 provision of federal law prohibits mass seizures of firearms in the case of an alleged violation of the Gun Control Act. Instead, “Only those firearms … particularly named and individually identified as involved” in alleged violations of law “shall be subject to seizure, forfeiture, and disposition.”
Nevertheless, the government was not finished with the Arwadys.
In 2014, Mr. Arwady was indicted on eight counts related to firearm sales he conducted after his firearms business closed. The government dismissed six of the counts before trial, and Mr. Arwady was found not guilty of the remaining two counts in 2015.
A court ordered the return of the 165 firearms seized from Mr. Arwady. Over a period of five months, the government managed to produce 160 of them, but many were damaged, missing parts or accessories, or had been removed from the original manufacturer’s packaging in which they were taken.
Over the ensuring years, the Arwardys brought civil claims against the government for the damages and mistreatment they had suffered, pursuing the matter all the way to the United States Court of Appeals for the Fifth Circuit, with assistance from the NRA’s Civil Rights Defense Fund.
Early in June, the Fifth Circuit disallowed the last of those claims on various technical grounds.
The Arwardys’ saga shows how even those FFLs who are never found in violation of any provision of criminal law can still be pursued, harassed, intimidated, and dispossessed of lawful property through a variety of means. It also shows that even after they are vindicated in court against false charges, the opportunities for meaningful recompense are extremely limited.
Not only is the Biden administration promising to crack down on those engaged in firearms sales, it’s attempting to place one of Michael Bloomberg’s hand-picked gun control operatives in charge of the agency that oversees the nation’s FFLs.
The whole point of having federally licensed firearms sales is to ensure Second Amendment protected commerce is conducted in a way that is safe, transparent, and consistent.
The distrust the Biden administration seems determined to sow between America’s FFLs and the ATF, however, can only undermine what could otherwise be a partnership that benefits both public safety and fundamental constitutional rights.