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News and notes on guns in America

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ATF headquarters in Washington, D.C. [AP/Susan Walsh]

How ‘The Law That Saved Gun Rights’ Gutted ATF Oversight of Firearm Dealers

The Bureau of Alcohol, Tobacco, Firearms and Explosives, the federal agency charged with overseeing gun stores, routinely goes easy on firearm dealers who break the law. That’s the thrust of a recent scoop by the New York Times, which showed that gun stores that repeatedly violated rules and even sold guns to felons got off with warnings, rather than getting put out of business.

One reason for the reluctance to hold scofflaw gun dealers accountable, experts say, is that ATF supervisors worry that penalties won’t hold up in court, and could even be cause for lawsuits. When it comes to revoking a gun dealer’s license or pursuing criminal charges, investigators and prosecutors have to meet an unusually high standard of evidence.

The reason the ATF has to go to such lengths to enforce dealer regulations originates with the Firearm Owners Protection Act, or FOPA. Though little-known outside gun policy circles, the act is one of the most significant gun bills passed at the federal level. Here’s how it made it harder to shut down scofflaw gun stores and private firearms dealers.

What does the law do? 

Drafted by the National Rifle Association in 1979 and signed into law by President Ronald Reagan in 1986, FOPA revised significant portions of the landmark Gun Control Act of 1968. Among its major provisions, the law banned the manufacture and sale of new machine guns for civilians (an amendment inserted by Democrats), while also making it easier for people convicted of crimes to restore their gun rights. But many of its provisions focused on curtailing the enforcement powers of the ATF, the only federal agency specifically charged with policing the gun business.

Before FOPA, the ATF interpreted the Gun Control Act broadly. That earlier bill, the cornerstone of federal firearms law, obligated more gun dealers to become licensed and held them liable if they sold firearms to people prohibited from purchasing firearms, including felons, people with documented drug abuse problems, and those adjudicated mentally ill. Dealers had to keep records of sales. If they violated the law, even unintentionally, they could lose the federal license they needed to operate or face criminal charges.

But much of that changed with FOPA.

Included in the new law were limits on how frequently ATF can inspect firearms dealers to look for infractions – a key reason the bureau now checks on fewer than 7 percent of the country’s more than 60,000 licensed gun sellers each year.

FOPA also raised the legal bar that the ATF has to clear when it does find violations.

Specifically, it requires ATF agents to prove that dealers willfully failed to document transfers, sold guns to people they knew to be prohibited, or otherwise violated federal  regulations.

Why did lawmakers and the NRA want to reduce the ATF’s authority?

In the late ’70s and early ’80s, the National Rifle Association and its allies in Congress were enraged by the way ATF cracked down on gun sellers. The NRA argued that under the Gun Control Act, “even an honest, accidental violation was a felony.”

A 1982 Senate subcommittee report said that “enforcement tactics made possible by current federal firearms laws are constitutionally, legally, and practically reprehensible.” The report said gun dealers complained that they were losing their selling licenses for breaking laws with which they were unfamiliar, not out of criminal intent. Some alleged they had been manipulated by the ATF into unwittingly committing violations.

What effect did it have on ATF enforcement efforts?

It made it much harder for the ATF to prove that a gun dealer was breaking the law.

As documents reviewed by the Times show, agents now often send dealers who are out of compliance a string of written warnings before they consider revoking a license. But supervisors sometimes rejected penalties even for stores that continued to violate rules or sold to felons.

In most areas of criminal and civil law “ignorance is not a defense,” said Lindsay Nichols, an attorney at the Giffords Law Center to Prevent Gun Violence. “There’s usually an assumption that if a person knows what they are doing, whether they knew it was illegal is irrelevant.”

But under FOPA, ignorance is a defense: the ATF and prosecutors have to prove that a dealer was aware of breaking the law, and went ahead anyway. Prosecutors have to show conclusively “that the defendant knew what they were doing was illegal,” explained Nichols. “Which is a high threshold, and difficult to prove in court.”

What about gun sellers who operate without a license?

FOPA also gave them more protection from regulation.

Under the Gun Control Act, the ATF had wide latitude to pursue illegal dealing charges against unlicensed sellers. FOPA protected private dealers by narrowing the definition of just who qualified as being “engaged in the business” of selling guns.

A clause in the law made it clear that licensing requirements would not apply to “a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

Instead, only people who buy and sell guns “with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms” would have to get licensed with the ATF.

This change again required the ATF to meet a higher burden of proof when cracking down on gun sellers. The law doesn’t say what exactly distinguishes “occasional” from “repetitive” gun sales, or how to determine if someone sells guns to make a profit rather than maintains a personal collection.

After a string of mass shootings in 2015, President Barack Obama advised the ATF to get tough on unlicensed dealers who move significant volumes of firearms.

The head of a gun show trade group called the Obama administration’s tougher stance “fairy tales,” and did not believe unlicensed sellers would register with ATF.

How important is the legislation to the NRA?

As recently as 2011, the NRA called FOPA “the law that saved gun rights.” The group argued that with FOPA’s passage, “the gun rights movement really came into its own when it established its power to win on the offensive.”

“They’ve had other successes, but nothing in one stroke that was as significant as this,” said Robert Spitzer, a political scientist at the State University of New York — Cortland who studies gun politics, and who calls FOPA the “lynchpin” of the NRA’s efforts to undermine the ATF.

“It was sort of an Empire Strikes Back moment.”