The Washington Post recently published a ‘leaked’ ATF White Paper entitled Options to Reduce or Modify Firearms Regulations. Unfortunately the news organization provides scant documentation on where, or how, they received the paper.
The ATF, in a conversation with Washington Post, alleged that the paper is NOT the opinion of the ATF. Rather, the thoughts expressed are the opinion of only the author; Ronald Turk – Associate Deputy Director (Chief Operating Officer).
The reason Mr. Turk authored the paper is under debate. On the face, he wishes to encourage dialogue on reducing industrial burden in manners that do not affect the ATF’s core mission of “reducing violence and increasing public safety.” Others, particularly gun control advocates, see the paper as an obvious lobbying ploy for the currently vacant head job at the ATF.
Another good question, and one not being asked, is: Why was the paper leaked? Who had access to it, why, and what value was there in providing the paper to the Washington Post? The paper is facially friendly to the firearms industry. A leaker wishing to inform the firearm industry and gun enthusiasts could not have picked a less likely media source to which to leak the paper. The Washington Post is known for its liberal policies and biases, and their receipt of the document may indicate that the leaker wishes to see opposition built against the proposals included within the paper.
The why aside, the paper has been leaked, the ATF has not denied its legitimacy, and there are 16 “points of discussions” included within. In original order below is a summary and examination of the points.
1. FFL for Gun Show Dealers
Current guidance on issuing Federal Firearm Licenses (FFLs) does not allow a license for selling only at gun shows. Instead, a potential licensee must have a permanent retail establishment. Former President Obama and many liberals have beat the gun control drum over the ‘gun show loophole’ claiming that gun show sales are exempt from background checks. While that statement is patently false, the ATF did create a Catch 22 situation where people selling only at gun shows could not get an FFL license and therefore had to operate as collectors and sell firearms without background checks.
The paper proposes guidance to fix this Catch 22 and allow people who only sell at gun shows to obtain an FFL. This would create an environment where voluntary compliance, by the licensing of casual, but regular, sellers is possible. By increasing the number of dealers, the ATF can expect to increase the percentage of sells through dealers and thus subject to background checks.
Looked at critically, this appears a way to cement Obama’s controversial guidance on what it means to be “engaged in the business” by making it easier for persons on the fence to acquire an FFL. Once an FFL can be acquired, and with a controversial and ambiguous definition of what it means to be “engaged in the business” issued by the ATF, many sellers will voluntarily acquire FFLs, even if they are not truly “engaged in the business” of firearms.
This proposal should be wholeheartedly welcomed by gun control supporters as a means to voluntarily achieve what they cannot hope to legislate.
2. Armor Piercing Ammunition
Nearly three years ago, the ATF proposed a new standard for Armor Piercing Ammunition. Under the proposed standard, AR-15 “pistols”, those bulky, 20 some inches long, variants of AR rifles, would have served as a means of claiming that any ammunition in an AR 15 caliber was pistol ammunition and thus controlled under the Armor Piercing Ammunition restrictions. The ATF would then have removed the 1986 exemption issued for AR-15 “green-tip” ammunition.
The attempt to reclassify ammunition after 30 years of settled regulations, and with no justifying change in the law, led to outrage, objections, and even letters from Congressmen. By the time the hullabaloo had settled down and the melee was over, the only Senate Confirmed Director of the ATF since 2003 had resigned.
Since then, the ATF has taken no action regarding Armor Piercing Ammunition. This includes a refusal to evaluate requests by ammunition manufacturers. Three years of no action has created a backlog which “poses significant litigation and reputational risks to ATF.”
As a means to move forward and negate this risk, Turk proposes adopting the definitions and standards first proposed in 2014 but since abandoned. However, Turk ads the twist that in adopting the new standards, no action should be taken to remove the exemption for “green-tip” AR ammo. It is Turk’s claim that the new standards will allow for a quick and efficient decision making process that will be in favor of the manufacturers of most of the pending requests.
This appears to be a proposal of dubious merit. The proposed standard is deficient in that it would, if applied evenly, classify as Armor Piercing Ammunition an extremely common round for use in rifles and rifle based firearms greater than a foot in length. These are not the handguns for which the regulation was attempting to control Armor Piercing Ammunition. Further, as Turk points out, practically all ammunition for these calibers “will generally penetrate body armor regardless of whether AP-classified metals are used.”
If followed, this change would cement the Obama proposal to re-define Armor Piercing Ammunition, but without the immediate consequences. Eventually, after the proposal has been established and followed for some time, a hostile administration will apply it to “green-tip” AR ammunition. This would be a short term gain at best.
3. Re-importation of Surplus Firearms
For the last 20 years, the Federal Government has prevented the importation of surplus, antiquated US military arms. At the same time, modern versions of these same arms have been freely manufactured and sold in the United States. Turk recognizes that this disconnect does little to prevent crime. Further, he acknowledges that the firearms in question, many older than 50 years, are sought after by collectors and “there is little, if any, evidence” of criminal use of such firearms.
This proposal would be a solid win for American Firearm Collectors. And as there are a finite number of such firearms to be imported, this could ultimately be a final solution for the particular problem. (It is worth noting that more modern military arms are full automatic and thus would require alteration of other laws before they could be sold to civilians even if imported. See immediate below.)
4. Prohibition on Machine Guns
Perhaps the most surprising find in the entire paper is the proposal to re-examine the regulations implementing the prohibition of new machine gun sells to civilians. Turk rightfully notes that the statute provides little guidance for transfers of these highly controlled firearms even between licensed dealers. Currently, such transfers are only allowed if a police department requests in writing that the transfer occurs.
This restriction is “detrimental to FFL/SOTs operating within the small, but useful, Department of Defense – supported industry and theatrical armorer community.” Turk proposes allowing variances for inter FFL transfers without such letters. He proposes that such variances will “avoid a requirement to change the statute.”
This change may be helpful to some licensed dealers, but it will do nothing for the rights of non-licensed persons who are prohibited from buying any machine gun not licensed in 1986. Pressure from industry and the movie making business could be helpful in repealing or overhauling this prohibition. For this reason, a change that relieves this pressure without increasing the rights of non licensed persons is likely to forestall, or foreclose, any positive change in this area of the law.
5. Sig Pistol Brace
A couple years ago the big news in industry was the approval of a “pistol brace” designed to fit onto AR style pistols. The brace allowed the user to strap the back of the pistol to the forearm and thereby stabilize it. This invention was very helpful for disabled shooters who had lost the use of an arm.
It was quickly discovered by the average shooter that a brace looked much like a stock and could be shouldered. Thus prompted, the ATF issued guidance that shouldering a pistol was “re-designing” the pistol into a rifle. Therefore, merely shouldering a pistol with a brace was making a short-barreled rifle. Without proper registration, the act became a 10 year felony.
This was the ATF’s only “determination where a shooter’s use alone was deemed to be a “redesign”.” Handguns, by definition to be fired from a single hand, are commonly used with both hands. Practically every police department training uses a two hand hold. But under the logic of above, such a use could redesign the pistol into a highly controlled firearm.
To bring the original ruling on the pistol brace back into line with other ATF guidance, Turk proposes removing the language regarding use as a redesign of the firearm. This would be a positive step and should be taken. Unfortunately this shows how much latitude, discretion, and abuse can occur within ATF rulings.
6. Sporting Purpose Study
The ATF restricts the import of many firearms based on whether such have a “sporting use.” The last time a serious study was made on “sporting use” was 20 years ago. Since that time the Assault Weapons Ban has expired, AR 15s have become very popular, and 3 gun is a new sport. Thus Turk argues that sporting purposes have changed, and a new study should be undertaken to better reflect modern sporting purposes. As support for allowing more firearm imports, Turk acknowledges that an importation ban only changes where the firearms are made and does not prevent the making of such firearms in America.
This is a solid proposal. Considering Trumps penchant for “made in America”, one must wonder whether the Executive will support such a proposal.
7. Agency Ruling Database
The ATF currently makes rulings, both public and private, and releases them to the interested parties. There is no well organized means of accessing these previous rulings. Since precedent is a key component in our legal system, it is important that such rulings be available for examination and citing. Turk proposes making a database to accomplish this goal.
Any action which binds ATF to the rule of law and helps users and industry understand precedents and how the ATF will rule on a given issue is positive. While I am generally not a supporter of ATF using databases, this is the correct use of such a tool.