Month: July 2011

Alan Korwin, who publishes a number of books on gun laws in the states, is reporting that August 14th is the start date for the demand letters from ATF to Southwestern FFLs. In an email alert sent out on Monday night (July 25th), he reports:

According to four BATFE agents familiar with the planned Fast and Furious
gun-smuggling “fix,” the bureau plans to release a “demand letter” by the
end of this week, insisting that gun dealers in the four Mexico-border
states begin reporting multiple rifle sales to the bureau.

All multiple rifle sales made to the same buyer within a five-day period
will have to be reported beginning on August 14, on a form to be announced,
according to the agents. The order will exclude rifles in .22 caliber, and
rifles without detachable magazines. The agents acknowledged that
congressional action, lawsuits, an injunction or other court orders might
forestall the implementation of the hastily concocted scheme. Such
preventive measures are already underway.

The rumored executive order to require gun dealers in California, Arizona,
New Mexico and Texas to begin reporting multiple rifle sales to BATFE will
not be issued. A previous Page Nine report that referred to the expected EO
now appears incorrect. It is possible that the uproar over the program
caused the administration to change its approach, and put all the heat on
BATFE to “enact” law without Congress. The EO was widely reported and
anticipated.

An exhaustive examination of statutory authority under which BATFE is
required to operate revealed no legitimate power to demand these records,
though the agents claimed they do have authority (two younger ones said
they have no control over the process, and were simply following along).
When questioned if they would consider resigning if asked to implement an
illegally introduced rule, the agents all either declined to answer or said
no, they would not resign.

Because a buyer will have to be identified to show that the sales reflect
purchase by one person, the record collections will be a gun registry tied
to gun ownership, which is strictly forbidden under federal law. No
requirement to destroy these records exists, since no authority to collect
the records exists. The BATFE agents said they would not be keeping the
records, because they “lack authority,” but could not identify a time frame
in which the registry information would be destroyed, or any audit trail.

When pressed, the senior official identified a statute that supposedly
conveyed authority for the daring plan. The citation is to 18 USC
§923(g)(5)(A) which states:

“Each licensee shall, when required by letter issued by the Attorney
General, and until notified to the contrary in writing by the Attorney
General, submit on a form specified by the Attorney General, for periods
and at the times specified in such letter, all record information required
to be kept by this chapter or such lesser record information as the
Attorney General in such letter may specify.”

This does not confer the needed authority, because “all record information
required to be kept by this chapter” does not include multiple sales of
long guns to the same person in a five-day period. The agent disagreed. In
fact, Congress specifically excluded such information when it enacted, by
due process, a statute requiring similar information for handguns in the
same law, in 18 USC §923(g)(3)(A):

“Each licensee shall prepare a report of multiple sales or other
dispositions whenever the licensee sells or otherwise disposes of, at one
time or during any five consecutive business days, two or more pistols, or
revolvers, or any combination of pistols and revolvers totalling two or
more, to an unlicensed person.”

In addition to the creation of this illegal reporting requirement, illegal
gun-owner registry, with unknown details and no public control over the
rule-making process, it amounts to record keeping specifically banned under
the Firearm Owners Protection Act, 18 USC §926(a)(2):

“No such rule or regulation prescribed after the date of the enactment of
the Firearms Owners Protection Act [5/19/86] may require that records
required to be maintained under this chapter or any portion of the contents
of such records, be recorded at or transferred to a facility owned,
managed, or controlled by the United States or any State or any political
subdivision thereof, nor that any system of registration of firearms,
firearms owners, or firearms transactions or disposition be established.”

Like so many laws the federal government writes, this one declares that
these acts cannot legally be done, but provides no specific punishment for
perpetrators, such as those running this scheme inside BATFE. Laws could be
written with teeth, to control bureaucrats. Instead of saying, “No one may
collect this information,” the law could say, “Anyone who collects this
information shall go to prison and pay a fine.” Given the common abuses now
prevalent in government, such laws have been needed for a long time, on a
state and local level as well as federally, some legislators say. Any
legislator unwilling to draft laws that way, allowing “officials” to do
whatever they please without consequence, deserve to be removed from
office, according to leading experts.