Gun Control: Background, Regulation and Legislation

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GUN CONTROL: BACKGROUND, REGULATION AND LEGISLATION

No part of this digital document may be reproduced, stored in a retrieval system or transmitted in any form or by any means. The publisher has taken reasonable care in the preparation of this digital document, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained herein. This digital document is sold with the clear understanding that the publisher is not engaged in rendering legal, medical or any other professional services.

GUN CONTROL: BACKGROUND, REGULATION AND LEGISLATION

WILLIAM B. PARNELL EDITOR

Nova Science Publishers, Inc. New York

Copyright © 2009 by Nova Science Publishers, Inc. All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means: electronic, electrostatic, magnetic, tape, mechanical photocopying, recording or otherwise without the written permission of the Publisher. For permission to use material from this book please contact us: Telephone 631-231-7269; Fax 631-231-8175 Web Site: http://www.novapublishers.com NOTICE TO THE READER The Publisher has taken reasonable care in the preparation of this book, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained in this book. The Publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or in part, from the readers’ use of, or reliance upon, this material. Independent verification should be sought for any data, advice or recommendations contained in this book. In addition, no responsibility is assumed by the publisher for any injury and/or damage to persons or property arising from any methods, products, instructions, ideas or otherwise contained in this publication. This publication is designed to provide accurate and authoritative information with regard to the subject matter covered herein. It is sold with the clear understanding that the Publisher is not engaged in rendering legal or any other professional services. If legal or any other expert assistance is required, the services of a competent person should be sought. FROM A DECLARATION OF PARTICIPANTS JOINTLY ADOPTED BY A COMMITTEE OF THE AMERICAN BAR ASSOCIATION AND A COMMITTEE OF PUBLISHERS. LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA Available upon request ISBN: 978-1-61324-969-7 (eBook)

Published by Nova Science Publishers, Inc. New York

CONTENTS Preface Chapter 1

vii Inside Straw Purchasing: How Criminals Get Guns Illegally Mayors against Illegal Guns

Chapter 2

Gun Control Legislation William J. Krouse

Chapter 3

Gun Control: Statutory Disclosure Limitations on ATF Firearms Trace Data and Multiple Handgun Sales Reports William J. Krouse

Index

1 29

85 95

PREFACE “Virtually every crime gun in the United States starts off as a legal firearm,” according to then-Bureau of Alcohol, Tobacco and Firearms (ATF) director Bradley Buckles. In a report, the ATF looked at how guns then “pass through the legitimate distribution system of federally licensed firearms dealers” before ending up in the hands of criminals. The ATF concluded, in part, that, “there is a large problem of diversion to the illegal market from licensed gun establishments.” When a gun is recovered in a crime, the ATF can use the serial number on the gun to trace back to where it first left the legal market - tracing from the first sale of the firearm by an importer or manufacturer, to the wholesaler or retailer, to the first retail purchaser. In some cases, that first retail purchaser is the link between the legal and illegal markets. Looking at trace information, the ATF found that “a small group of dealers accounts for a disproportionately large number of crime gun traces.” More than 85 percent of dealers in the U.S. had no crime guns traced to them at all in 1998, while about 1 percent of licensed firearm dealers accounted for 57 percent of traces that same year. The ATF also concluded that “sales volume alone cannot be said to account for the disproportionately large number of traces associated with those dealers.” Gun control legislation is also analyzed in this book. Chapter 1 - This report presents findings from an investigation into one of the main ways criminals get guns: Straw purchases (when one person poses as the buyer of a gun that is actually for someone else). The report was prepared by the Mayors Against Illegal Guns based on investigative work by the James Mintz Group. It presents 12 specific findings showing how some licensed gun

viii

Preface

dealers sell handguns to illegal traffickers through straw purchases - which could and should be prevented Chapter 2 - Congress has continued to debate the efficacy and constitutionality of federal regulation of firearms and ammunition, with strong advocates arguing for and against greater gun control. Although several dozen gun control-related proposals were introduced in recent Congresses, only a handful of those bills have received significant legislative action. On June 26, 2008, however, the Supreme Court issued its decision in District of Columbia v. Heller and found that the District of Columbia (DC) handgun ban violates an individual’s right under the Second Amendment to lawfully possess a handgun in his home for self defense. Dissatisfied with the District’s response to this decision, pro gun Members have reportedly convinced the House leadership to consider a bill (H.R. 6691) in September that would overturn major provisions of the District’s gun laws. Earlier in the 1 10th Congress, the tragic events at Virginia Tech on April 16, 2007, prompted the passage of the NICS Improvement Amendments Act (P.L. 110- 180; H.R. 2640). This Act includes provisions that encourage states, as a condition of federal funding, to update and make available disqualifying records on persons found to be “mental defective” and convicted of misdemeanor crimes of domestic violence for inclusion in the National Instant Criminal Background Check System (NICS). On a related matter, the Senate Veterans’ Affairs Committee has approved a bill (S. 2969) that was amended to include a provision that would revamp procedures by which veterans are found to be “mentally incompetent” and, thus, lose their firearms eligibility (for a similar bill, see S. 3167). The Senate Judiciary Committee, meanwhile, has reported a bill (S. 376) that would amend the Law Enforcement Officers Safety Act (LEOSA) to widen eligibility under that law, as well as clarify other provisions related to eligibility, credentialing, and certification. The House companion bill is H.R. 2726. Congress has made permanent funding limitations on the Bureau of Alcohol, Tobacco, Firearms and Explosives’ release of firearm trace data in the Consolidated Appropriations Act, 2008 (P.L. 110-161). In addition, the House has passed a public housing bill (H.R. 6216) that includes a provision that would prohibit housing authorities from barring tenants from possessing legal firearms as a condition of their lease. The Senate leadership, however, has blocked an amendment to a public lands bill (S. 2483) that would overturn

Preface

ix

federal regulations prohibiting loaded and concealed firearms in National Parks and Wildlife Refuges (for a similar bill, see S. 2619). Other salient gun control-related issues and related proposals that may reemerge in the remainder of the 110th Congress include (1) authorizing federal judges, judicial officials, U.S. Attorneys, and Department of Justice personnel to carry firearms for self-defense (H.R. 2325 and S. 1235); (2) retaining Brady background check records for approved transactions to enhance terrorist screening (S. 1237, S. 2935, H.R. 2074, and H.R. 3547); (3) more strictly regulating certain long-range .50 caliber rifles (S. 1331); (4) further regulating “assault weapons” and “large capacity ammunition feeding devices” (H.R. 1022, H.R. 1859, H.R. 6257, and S. 2237); and (5) requiring background checks for firearm transfers at gun shows (H.R. 96, S. 2237, and S. 2577). This report will be updated to reflect legislative action. Chapter 3 - For FY2003-FY2006, a rider on the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) appropriations has prohibited that agency from disclosing firearm trace data (based on firearm transfer records maintained in part by licensed gun dealers) and multiple handgun sales reports data for any purpose other than supporting a “bona fide” criminal investigation or agency licensing proceeding. This rider is known as the “Tiahrt” amendment, for its sponsor in full committee markup of the FY2004 Commerce-Justice-State appropriations bill, Representative Todd Tiahrt. Those limitations and conditions on ATF funding remained in effect for FY2007 under the Revised Continuing Appropriations Resolution (P.L. 1105). A coalition of 210 city mayors led by New York City Mayor Michael Bloomberg favors the repeal of this rider, but the Fraternal Order of Police favors retaining it, as does ATF. For FY2008, Congress included modified Tiahrt amendment language that authorizes the release of aggregate trace data on illegal gun trafficking in the Consolidated Appropriations Act, 2008 (P.L. 110-161).

In: Gun Control Editor: William B. Parnell, pp. 1-28

ISBN 978-1-60692-890-5 © 2009 Nova Science Publishers, Inc.

Chapter 1

INSIDE STRAW PURCHASING: HOW CRIMINALS GET GUNS ILLEGALLY* Mayors against Illegal Guns “Straw purchases are so easy it’s a no-brainer. Why buy a hot gun on the street when you can easily do a straw purchase?” Former Miami gang member

HIGHLIGHT This report presents findings from an investigation into one of the main ways criminals get guns: Straw purchases (when one person poses as the buyer of a gun that is actually for someone else). The report was prepared by the Mayors Against Illegal Guns based on investigative work by the James Mintz Group. It presents 12 specific findings showing how some licensed gun dealers sell handguns to illegal traffickers through straw purchases - which could and should be prevented

* This is an edited, excerpted and augmented edition of a Mayors Against Illegal Guns publication downloaded from www.mayorsagainstillegalguns.org.

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Mayors against Illegal Guns

OVERVIEW OF ILLEGAL TRAFFICKING “A teenager is more likely to die from a gunshot than from all natural causes of death combined. This is unacceptable in America.”1 President George W. Bush, 2001

“Virtually every crime gun in the United States starts off as a legal firearm,” according to then-Bureau of Alcohol, Tobacco and Firearms (ATF) director Bradley Buckles in 2000.2 In a 1997 report, the ATF looked at how guns then “pass through the legitimate distribution system of federally licensed firearms dealers” before ending up in the hands of criminals. The ATF concluded, in part, that, “there is a large problem of diversion to the illegal market from licensed gun establishments.”3 When a gun is recovered in a crime, the ATF can use the serial number on the gun to trace back to where it first left the legal market - tracing from the first sale of the firearm by an importer or manufacturer, to the wholesaler or retailer, to the first retail purchaser. In some cases, that first retail purchaser is the link between the legal and illegal markets.4 Looking at trace information from 1998, the ATF found that “a small group of dealers accounts for a disproportionately large number of crime gun traces.”5 More than 85 percent of dealers in the U.S. had no crime guns traced to them at all in 1998, while about 1 percent of licensed firearm dealers accounted for 57 percent of traces that same year.6 The ATF also concluded that “sales volume alone cannot be said to account for the disproportionately large number of traces associated with those dealers.”7 Guns get from dealers to criminals in part through trafficking. “ATF’s trafficking investigations show that trafficked firearms are diverted to prohibited persons and are subsequently used in serious crimes,” according to an ATF report. 8 In trafficking investigations between 1996 and 1998, 25 percent involved guns used in an assault and 17 percent involved guns used in homicides.9 Nearly 5 million Americans were victims of violent crimes committed with firearms between 1993 and 2005.10 The ATF examined gun-trafficking investigations from July 1996 to December 1998 and found that 46 percent of trafficking investigations during this period involved straw purchasers.11 This was nearly double the percentage of the next closest source.

Inside Straw Purchasing: How Criminals Get Guns Illegally

3

In the following pages we turn to our investigation of how straw purchases are conducted.

WHAT IS A STRAW PURCHASE? “A ‘straw purchase’ occurs when the actual buyer of a firearm uses another person, the ‘straw purchaser,’ to execute the paperwork necessary to purchase a firearm from an FFL,” according to the ATF.12 “A straw purchaser may be used when the actual buyer is prohibited from having firearms, such as a convicted felon or an individual who is less than 21 years of age. On other occasions, the actual buyer of the firearm may not be a prohibited person, but does not want the firearms to be listed in his or her name.”13

4


Federally-licensed firearms dealers (FFLs) must require each purchaser to complete an ATF Form 4473, which includes questions about whether the purchaser is prohibited from buying a firearm.14 One question asks whether the person filling out the form is, in fact, the actual buyer of the firearm, and warns: “You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you.”

Straw purchasers break the law when they answer “yes” to this question.

STRAW PURCHASES: INVESTIGATIVE FINDINGS One former trafficker we interviewed called the store where he purchased guns the “easiest store in Georgia.” “That was the word - you want some guns, you go to [that store].”15


5

Scope of Investigation In this investigation, we reviewed information from a variety of reports, studies, court documents and other material, including: court filings from more than 1,000 gun-related prosecutions of alleged gun traffickers, straw purchasers and others (these prosecutions concerned the sale of more than 14,000 firearms in more than 4,000 separate transactions); reports from government agencies, including: The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); the Federal Bureau of Investigation (FBI); the Department of Justice; and the Centers for Disease Control and Prevention; gun-industry material on trafficking and straw purchasing; studies by experts. We also conducted interviews with more than 100 witnesses, identified in large part from the gun-related prosecutions cited above, including: gun traffickers; straw purchasers who bought guns for traffickers; former employees of gun stores; current and former Federal Firearms License holders (i.e., gun-store owners); former gang members and other criminals with a history of gun-related crime; victims of gun crimes; former prosecutors; law enforcement officers; and other experts.

Investigative Findings Following are our 12 findings about how some licensed gun dealers sell handguns to illegal traffickers through straw purchases: 1. Traffickers Picked “Easy” Stores Based on a review of information from more than 1,000 gun-trafficking prosecutions, we noted numerous instances where a trafficker would return again and again to the same store. For example, in a Pennsylvania case filed in 2006, a straw purchaser bought 27 guns, revisiting the same store 15 times in about nine months, in exchange for crack and/or money.16 In Georgia, a trafficking ring used straws to buy 26 guns over seven visits to the same store and then resold them on the streets of New York City.17 Interviews and other research indicates that these repeated visits to the same store happen because traffickers identify stores where they can make straw purchases easily, and then stick with those stores. For example:

6

Mayors against Illegal Guns •

•

•

•

•

•

One former trafficker we interviewed called the store where he purchased guns at age 26 the “easiest store in Georgia.” “That was the word - you want some guns, you go to [that store].” He first went there because a friend of his was already trafficking guns from the store.18 This trafficker testified that he bought at least 55 guns in five visits to this store - three during a three-week period in 1998 - using straw purchasers and fake IDs.19 He served seven years in jail. The store where this trafficker purchased guns had more than 600 traces between 1996 and 2000, and it allegedly sold at least 300 guns to straw purchasers between 1998 and 2006, according to a review of prosecutions and an analysis of trace data. This number of traces was at least 170 times the 1998 national average of 0.67 traces per licensed gun dealer, per year.20 In 2007, one gun store near New Orleans was shut down after more than 10 years in business. The ATF traced large numbers of crime guns back to this store and some sales were identified as “straw sales” in a 2007 press release from the U.S. Attorney’s Office in the Eastern District of Louisiana.21 Interviewed in the press about the store’s closing, retired Police Officer Charles Donovan, who ran his own gun store nearby, was quoted as saying the store “had exclusive clientele that would go to him because it was no questions asked.”22 The leader of “one of the most prolific, profitable and violent drug trafficking organizations” bought more than 100 guns from the same Connecticut gun shop, according to the store owner’s 2006 indictment.23 Many guns were purchased through “open and obvious straw purchase transactions,” according to a court filing. After being in jail from 1990 to 1995, the drug trafficker went back to the store “and began purchasing firearms using the same techniques as before, i.e., through the use of straw purchasers.” The store’s owner “specifically advised [him] how to structure his straw purchases to avoid the multiple sales reporting requirement and to avoid drawing the attention of law enforcement or firearms regulators,” according to the indictment.24 (The store owner pleaded guilty to charges against him in November 2007.)25 A male drug dealer who was a felon used a straw purchaser to buy two 9mm Hi-Points and one Mac-1 1 in a single trip to a pawnshop in South Carolina he told us. He said, “Buying a gun is like buying candy.”26


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MAC-11

2. Straw Purchasers Paid in Drugs and Money Traffickers usually recruit straw purchasers who are close at hand, often a relative or girlfriend.27 Cash payments for making straw purchases vary from around $20 to $ 1 00 per gun, our interviews indicate.28

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Straw purchasers are sometimes drug addicts who buy guns in exchange for drugs or money, our interviews indicate.29 A former Miami gang member, who is now 38 years old, told us: He bought his first gun from a neighbor at age 1 5 and became a member of the Latin Kings soon after that. “When you’re a gang member, you have to carry a firearm.” Over four years, he and his fellow gang members made 50 to 60 straw purchases from four gun stores. Their straw purchasers were drug addicts who approached them in a local park and bought guns in exchange for drugs or money. “Where there’s dope, there’s guns,” he said.30 He and fellow gang members - wearing their gang colors and with visible gang tattoos - took the straw purchasers into stores where the owners and employees knew them. They often bought .22 pistols because of their concealability. The employees at these stores never attempted to stop any of their straw purchases. The employees did not protest when the gang member asked if he could fit a shotgun he was buying under a coat. This former gang member left the gang with the help of the Miami Police gang unit and later worked with law enforcement in investigations.31 Sometimes traffickers and straw purchasers are visibly on drugs while they are in gun stores, our interviews indicate.


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One Georgia straw purchaser told us: He was on drugs when he bought dozens of guns during four straw purchases at the same store over five months. He knew nothing about guns. Before each of his straw purchases, he smoked cocaine-laced marijuana, so he smelled of drugs and his eyes were bloodshot; “It was obvious I was under the influence.” He was also in a hurry when he bought guns because he knew the trafficker would pay him just after the purchase and he would be able to buy more drugs.32 This straw told us that each time he went in, the same two employees were in the store and treated him like a VIP. They gave him their “undivided attention” and knew he would be buying multiple guns, the trafficker said. The store gave him a free gun with every four he purchased. This straw said he later cooperated with the ATF in their investigation of the trafficking ring for which he bought guns. He learned through this cooperation that guns he bought were sold in New York.33 A Virginia trafficker told us: He paid his straw purchasers $40 and a gram of crack each time they bought a gun for him. He gave one of his straws a little of the crack up front and the rest after she got the gun. He and a different straw smoked crack in his truck while the store did the straw’s background check, and then they reentered the store high.34 3. Some Dealers Sell to Straws who Know Nothing about Guns “Straw purchasers usually know nothing about the weapons they claim to have bought,” according to a United States Attorneys’ Bulletin article written by ATF Special Agent Mark Kraft.35 Interviews we conducted indicate that a customer who is not knowledgeable about the gun that he/she is purporting to purchase is a red flag for some dealers, but not for others. For example, one former employee of a gun dealer in Pennsylvania said that he recognized as a potential straw purchaser anyone who entered his store looking lost or confused. His legitimate customers usually knew what they wanted.36 Most of the straw purchasers we interviewed (all of whom were indicted for making straw purchases) said they had no knowledge of guns, and several felt this was obvious to the salesmen. One of the Philadelphia straw purchasers we interviewed, who had never handled a gun before or even been in a gun store before said, “The salesman should know guys make girls buy them guns like that. I never held the gun. I know nothing about guns.” This straw purchaser was forced to buy the guns

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by a trafficker who threatened to hurt her. She even tried to jump out of the car when she was being driven to the gun store, but he grabbed her arm to stop her. She learned from the ATF that the trafficker sold one of the guns she bought for him to a 13- year-old boy.37 4. Most Straw Purchases are Done with the Trafficker in the Store A trafficker who uses a straw purchaser to acquire a gun typically “selects the gun and directs the purchase,” according to a 2002 United States Attorneys’ Bulletin article written by ATF Special Agent Mark Kraft. This pattern held with the traffickers and straw purchasers we interviewed - most traffickers accompanied their straws into the store. Based on a review of information from more than 1,000 gun-related prosecutions, we noted 486 instances where the method of straw purchase could be clearly identified from available court filings. About 60 percent of the time, the trafficker and straw purchaser entered the store together. Traffickers often gave their straw purchasers the money for the guns they wanted before entering the store, although some did not, our interviews indicate. One trafficker, who was also a gang member, told us he always gave his straws the money while they were in the store together - usually in front of the store clerk - because the straw purchasers “couldn’t be trusted” with the money. 38 "I ran the show. My girlfriend didn’t know a gun from a Big Mac." – Former Virginia gun trafficker, September 2005 A Virginia trafficker told us that he used his girlfriend as a straw purchaser six times at the same store. He said, “I ran the show. My girlfriend didn’t know a gun from a Big Mac.” This trafficker was knowledgeable about handguns and had shopped at the store before making straw purchases there. Each time they went into the store together, the trafficker told the store owner which gun he wanted, the owner did a background check on the girlfriend, and then the trafficker handed payment for the gun directly to the store owner. He used other women as straw purchasers at two Virginia pawn shops. “The dealers were more interested in my money being green than who was buying the gun.”39


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Many traffickers interact with the gun salesmen, even haggling over price and asking specific questions such as how many bullets the gun carries, our interviews indicate.40 A former employee of a gun store told us he recalled instances at his store where a woman looked at jewelry or some other product in the store while a man handled several different guns. The woman went to the gun counter to fill out the paperwork after the man had made his selections. The former employee suspected these were straw purchases, but the store where he worked made these sales anyway, according to the former employee.41 Some traffickers tapped the glass, pointed, or otherwise physically indicated to the straw which guns they wanted. One straw told us that the trafficker - who was a 24-year-old drug dealer - pointed to a gun and, within earshot of a nearby salesman, told her it was the one he wanted her to buy.42 Generally the trafficker selects the gun or the straw purchaser picks out the gun the trafficker had told her to buy, the straw fills out a Form 4473 and submits identification as if she were the actual purchaser of the gun, our interviews and review of prosecutions indicate. The seller then runs a background check on the straw purchaser. 5. They Buy Multiple Guns per Visit (Often the Same Model of Cheaper Guns) Multiple sales accounted for 20 percent of all traces of guns sold in 2000 and recovered at urban crime scenes that year, according to an ATF study of national trace data.43 A review of gun-related prosecutions indicates that many traffickers have their straw purchasers buy more than one gun per visit. From a review of nearly 300 prosecutions in the Eastern District of Pennsylvania, we noted at least 185 cases where a trafficker allegedly made one or more visits to a particular store and used a straw to buy multiple guns during at least one of those visits.44 For example, two traffickers indicted in the Eastern District of Pennsylvania bought 93 guns in 27 visits to the same store over a six-month period.45 A number of the straw purchasers we interviewed bought more than one gun during each store visit and bought guns more than once for the same trafficker. One straw purchaser bought 16 guns for a man she lived with, who was a felon at the time. She told us that she once bought 10 guns from the same store in one week, and the store gave her a discount for buying so

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many.46 A Georgia trafficker we interviewed purchased 15 guns in one visit and 60 more from the same store over a three-month period.47


13

A number of straw purchasers we interviewed were asked by traffickers to purchase multiple guns of the same model. We interviewed a straw purchaser in Ohio who bought 12 Hi-Point handguns over four trips to gun dealers (including two visits to the same pawn shop).48 One female straw purchaser from Georgia told us: When she was 21, she began dating a man who clearly had a lot of money - he picked her up in a limo on their first date. After dating for a few months, he asked her to buy guns for him. He drove her to the store in his Cadillac Escalade three times in 18 days to buy Brycos for him, she told us.49 The first time, she bought 11 guns; eight days later, she bought 14 guns; and 10 days after that, she bought six guns, according to her indictment. 50 After one of the purchases, she heard her boyfriend and another man filing the serial numbers off the guns, she said. She later pleaded guilty and testified against her boyfriend.51 She received probation and paid a fine. Another straw we interviewed was a junior in college when she bought 26 guns from the same Ohio gun store during two visits in 2002.52 On her first visit, she bought nine guns from the store, five of which were the same model, a Jennings 9mm, according to her indictment.53 Ten days later, she and the trafficker returned to the same store and bought 17 more guns, including 15 more Jennings 9mms. Ten days later, the Ohio straw purchaser and the trafficker returned to the same store and bought 17 more guns, including 15 more Jennings 9mms. Traffickers we interviewed usually picked cheap guns for their straws to buy because they could resell these guns at a higher profit than more expensive models. Some of these traffickers mentioned as examples several brands of handgun that they bought for less than $150. “They were what was common on the streets,” according to one straw.54 One trafficker preferred a particular model because he thought it was easy to remove the serial number of that model.55 Some relatively inexpensive handguns have a shorter time to crime, according to the ATF.56

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6. Some Salesmen Are Willing to Sell Despite Suspicions Some gun salesmen appear to have found multiple purchases suspicious but sold the guns anyway. One allegedly commented on a straw’s request for three guns, saying, “Well, you only have two hands,” but then sold her the guns.57 A former gun saleswoman, who told us she did not know what a straw purchase was, remembered customers buying multiple inexpensive handguns of a particular brand, which she called “throw-away guns.” She sold 10 handguns of this brand to one man and told us she figured the customer would be “selling them to children on the streets, or gangs.”58 The gun saleswoman told us she sold 10 handguns of the same brand to one man and figured he would be “selling them to children on the streets, or gangs.” – September 2007 A former employee of an Indiana gun store - who sold guns for four years - told us straw purchases and other suspicious gun sales were a fairly common occurrence at the store where he worked.59 This former employee also told us that his store got many trace requests from the ATF, sometimes as frequently as one a day, and that he felt this was an indication that the store was selling into the illegal market. We checked publicly available trace information regarding the store and found that it did in fact have high numbers of traces more than 600 times the 1998 national average of 0.67 traces per year, according to 1996-2000 data.60 A Georgia gun clerk told us he sold many guns he suspected might end up in the hands of traffickers. “Some were fairly obvious straw buyers,” he said. – December 2007 Some former gun-store employees said they identified and attempted to halt straw purchases but were overridden by management. For example, a former employee from a South Carolina gun store told us that in one instance, he became convinced that a woman was engaged in a straw purchase on behalf of a male companion and refused to complete the transaction. At that point, according to the former employee, the store owner told the employee,


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“Don’t ever accuse me of doing something illegal again,” and completed the transaction himself.61 A former employee of a gun dealer in Georgia told us he only refused a sale if the purchaser said outright he was a convicted felon or was buying the gun for someone else. This clerk sold many guns he suspected might end up in the hands of traffickers. “Some were fairly obvious straw buyers,” he told us.62 7. Some Dealers Coach Customers on Straw Purchasing Our interviews indicate that some gun dealers coached customers on how to complete a straw purchase. One former employee of a gun dealer, who now works building and repairing computers, said his colleagues regularly told customers who failed the background check to return with someone else who could stand in for them. “They would ask if their father or brother or girlfriend could come in and pass the background check, and then we could sell it to that person. The next day the girlfriend or fiancée or friend would show up and buy the gun. I’ve seen it happen left and right.” 63 A trafficker said gun stores “taught” him how to cover up straw purchases. When he went into a store and tried to use his wife as a straw purchaser, the seller told him she should come back the next day and buy the gun alone, which she did.64 When the straw purchaser asked the salesmen for two 9mm handguns, they asked her a series of questions… . The questioning caused this experienced straw purchaser to leave the store nervously. She did not buy the guns she came for. 8. Questioning a Straw Can Prevent an Illegal Sale A straw purchaser in Ohio, who was a 24- year-old single mother when she bought guns, told us how questioning prevented her from completing an illegal transaction. She told us she bought 17 9mm handguns of the same brand for a trafficker who re-sold them in New York City. The straw purchaser bought most of the guns from three Ohio stores and a gun show.65 However, when this straw purchaser went to a store operated by former police officers, the employees there asked her questions about her purchase. “As soon as I walked into the store, I had a sense that the men were concerned about why I was making the purchase.”66

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When she asked the salesmen for two 9mm handguns, they asked her a series of questions, including where she would be taking the guns and whether she had a child at home. They asked if she had a place to keep the guns where she could get to them quickly if she needed to defend herself but that would be inaccessible to her child.67 The questioning caused this experienced straw purchaser to leave the store. She called the trafficker that sent her into the store from the parking lot. He told her to forget about making the purchase. She did not reenter the store and did not buy the guns she came for.68 9. Many Stores Recognize and Reject Straw Sales We interviewed the owner of that Ohio store. He told us he was always on the lookout for straw purchases and other suspicious sales.69 He told us that he and his employees watched for several signs that a sale might be a straw purchase or otherwise inappropriate, as follows: • • • • •

Instances in which a man picked out a gun and then the woman with him attempted to buy it; A money exchange inside the store between two people who came in together; Women who came into the store alone to buy guns and did not appear to have a sensible answer about what gun they wanted and why; Payment with cash, especially small bills, as this suggests the customer earned the money selling drugs; and People who were intoxicated. What is the result of this vigilance?

While only anecdotal, we note the following: • •

Of the more than 1,000 gun-related prosecutions we noted, we found no cases that involved guns purchased at this Ohio store. On the other hand, we found at least five prosecutions between 1994 and 2005 that allegedly involved the straw purchase of 235 guns purchased at one of the stores where the Ohio straw above bought many of her guns. These two stores are located within 45 miles of one another.


17

In 2006, investigators hired by the City of New York presented a simulated straw purchase to more than 50 gun dealers in six states. The dealers approached for this integrity test had multiple traces to guns used in crimes in New York City. Among these more than 50 dealers, nearly a third spotted the simulated straw purchase and refused to complete the sale. 10. Employees’ Lack of Training on Spotting Straw Purchases Despite the available guidance on how to spot a straw purchase (see Appendix A), a number of the former employees we interviewed said they did not receive any training from their employers on how to spot a straw purchase or were unclear about store policy on this issue. A number of former gun-store employees we interviewed said they did not receive any training from their employers on how to spot a straw purchase. For example, a woman who worked a Georgia gun store for two years told us she was instructed only to sell guns to people who checked “no” on all of the questions on the Form 4473 and who provided a valid ID. When interviewed, she did not know what a straw purchase was. A former employee at a store in South Carolina said his only instructions were to be careful not to sell to anyone who as underage; the owner did not instruct him on straw purchases or other suspicious sales.70 11. Trafficking Guns across State Lines is Common After acquiring firearms, traffickers told us that they often resold them in other states where it was harder to buy guns. One trafficker bought guns in Georgia, then resold them in Maryland.71 One trafficker we spoke with attributed interstate trafficking to what he understood as “big demand” for “cheap, throw-away” guns in places like New York and California, but no demand in Ohio, where he purchased the guns through straw purchasers from gun stores, flea markets and pawn shops. This trafficker initially bought guns himself but began using straw purchasers because he “didn’t want 50 guns floating around out there in [his] name.”72

18


“There is substantial interstate smuggling of handguns,” according to a statistical analysis of ATF trace data from 1989 to 1997 by National Economic Research Associates (NERA) submitted on behalf of the plaintiffs in Hamilton v. Accu-Tek.73 “Most of this smuggling is from states with relatively weak controls over handgun sales, such as Florida, to states with relatively strict controls, such as New York.”74More recent trace data supports NERA’s conclusions. In 2006, 71 percent of New York State’s and 66 percent of Massachusetts’s crime guns originated out of state, according to ATF trace data.75 12. Traffickers Make Big Profit on Cheap Guns Traffickers we interviewed favored cheaper guns because the mark-up was higher. One trafficker told us: In 2003, when he was in his mid-20s, he and a friend began buying guns in Georgia for between $100 and $120 and reselling them in Maryland for hundreds of dollars more per gun.76 He picked Maryland because he knew there was a waiting period to buy guns there,


19

unlike in Georgia. Also, he knew his way around Maryland because he had family there. He drove guns up to Maryland five or six times. The first three or four times, he drove into inner-city neighborhoods and sold guns to people he met on the street. The last two or three times, he sold guns to a man who was then reselling them. That man was later caught in Washington, D.C. with a gun the trafficker sold him, which is what led to the trafficker’s arrest. One trafficker told us he bought $99 guns in Georgia and sold them for $600 in New York.77 Another trafficker only bought Hi-Point 9mms, because he could sell a Glock that cost hundreds of dollars for only a couple hundred more in New York, while he could sell a $99 Hi- Point for $500.78 A Virginia trafficker told us he bought about 30 guns in Virginia for between $150 and $200 and sold them in New York for $500 to $600 each.79

OTHER AREAS OF INVESTIGATION While our investigation focused on straw purchasing, we also reviewed information on other issues that play a role in guns moving from the legal to the illegal market. Our review suggests that additional investigation is warranted to identify remedies to the “problem of diversion to the illegal market from licensed gun establishments.”80

“Off-the-Book” at Gun Shows “Gun shows and flea markets are a major venue for illegal trafficking,” according to the ATF report titled “Following the Gun.” Fourteen percent of ATF’s criminal trafficking investigations between 1996 and 1998 involved guns purchased from gun shows, the third-highest trafficking channel after straw purchases and unlicensed sellers.81 Many ATF investigations at gun shows involved FFLs that were selling firearms “off-thebook,” according to the Treasury and Justice departments’ review of a sampling of investigations involving gun shows between 1991 and 1998.82 Gun shows also provide opportunities for other violations, including straw purchases. Unlicensed gun dealers are not required by federal law to perform background checks at gun shows.83

20


ID Requirements Aren’t Effective Traffickers can easily buy guns with false identification. Between October 2000 and February 2001, the GAO conducted an investigation using counterfeit driver’s licenses with fake identifiers to purchase guns from licensed dealers in five states - Virginia, West Virginia, Montana, New Mexico and Arizona. Each of the five states conformed to the Brady law by requiring instant background checks and, for the most part, the dealers adhered to this requirement. However, because the purchasers used counterfeit IDs with fake identities, and because the verification procedures checked only for negative information in the database and did not verify authenticity, the GAO investigators were able to purchase guns. 84

Guns Stolen and Missing from Dealers Feed Illegal Market In 2005, the ATF conducted inspections of more than 3,000 FFLs and found 12,274 firearms missing. Nearly all of the guns, 11,640, were missing from only 97 dealers. 85 This raises questions about the practices of those dealers, particularly given that the ATF has identified “significant or frequently reported firearms losses or thefts by an FFL” as “indicators of illegal trafficking.”86

Terrorism Suspects Are Able to Buy Guns During a nine-month period in 2004, people on the FBI’s terrorist watch list were able to buy guns in 47 out of the 58 times they tried, according to a GAO study published in 2005. Most of the purchases were allowed to proceed because background checks of most of the purchasers “found no prohibiting information, such as felony convictions, illegal immigrant status, or other disqualifying factors.”87 People on the FBI’s ter-roist watch list were able to buy guns in 47 out of 58 time they tried, according to the a GAO study published in 2005.


21

APPENDIX A: TRAINING MATERIAL ON HOW TO SPOT A STRAW PURCHSE “Don’t Lie for the Other Guy” is a training program developed by the National Shooting Sports Foundation (NSSF) in coordination with the ATF. A guide published in connection with the program includes the following points:1 •

•

•

“As a federally licensed firearms dealer, you are responsible under federal law for determining the legality of any firearm transaction.” “To simply have your customer provide identification, fill out the required forms and undergo the criminal background check may not be enough in certain circumstances.” The guide suggests asking questions to investigate the purpose of the purchase, such as, “What is the intended use?” and “What type of firearm are you interested in or most comfortable with?” The brochure also states, “Many times potential strawman purchasers will leave a retail store, never to be seen again, after a salesperson asks these or similar questions.” (This is exactly what happened in the case of the Ohio straw purchaser described above.) “If suspicions arise it is more prudent to follow the precautionary principle of politely refusing the sale to protect yourself from the risk of contributing to a possible illegal transaction.”

The “Don’t Lie for the Other Guy” guide goes on to describe some possible straw purchase scenarios, including: “Bob brings his girlfriend Kay to a gun shop. Bob points out a pistol to Kay, who asks to see it. She briefly looks at the pistol and hands it to Bob who nods his approval and hands the pistol back to Kay. Kay then fills out the Form 4473 to purchase the pistol.”

1

Don’t Lie for the Other Guy: A Retailers Guide to Recognizing and Deterring Strawman Purchases. National Shooting Sports Foundation and Bureau of Alcohol, Tobacco, Firearms and Explosives.

22


As of February 2007, the ATF had distributed “Don’t Lie for the Other Guy” training materials to more than 20,000 licensed FFLs and gun show promoters.2 Other guidance available to dealers about how to spot a straw purchase include: •

•

Seminars at the annual Shooting, Hunting, Outdoor, Trade Show (SHOT) on “detecting and avoiding straw purchases.” The SHOT Show bills itself as the largest trade show for the shooting sports and hunting industries. The straw purchase seminars are one of the most popular programs at the SHOT events, according to a December 2003 Shooting Industry article.3 The ATF’s Learning Theater website, which includes a short animated video called “Straw Purchase Attempt.”

ENDNOTES 1

Project Safe Neighborhoods. “Letter from the President.” Department of Justice. http://www.psn.gov/Presidentsletter.html 2 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms and Explosives. Following the Gun: Enforcing Federal Law Against Firearms Traffickers. Washington, D.C.: Department of the Treasury, 2000. 3 Department of Justice Bureau of Alcohol, Tobacco, Firearms and Explosives. A Progress Report: Gun Dealer Licensing and Illegal Gun Trafficking (1997). 4 Department of Treasury Bureau of Alcohol, Tobacco, Firearms and Explosives. ATF Snapshot 2007. Washington, D.C.: Department of the Treasury, 2007. 5 Department of Treasury, Bureau of Alcohol, Tobacco, Firearms and Explosives. ATF Regulatory Actions: Report to the Secretary on Firearms Initiatives. Washington, D.C.: Department of the Treasury, 2000.

2

Department of the Treasury, Bureau of Alcohol, Tobacco, Firearms and Explosives. Congressional Budget Submission Fiscal Year 2008. Washington, D.C.: DOJ, February 2007. 3 “Identifying and Deterring Straw Purchases: SHOT Show 2001.” New Orleans: National Shooting Sports Foundation and Bureau of Alcohol, Tobacco, Firearms and Explosives, 2001.

Inside Straw Purchasing: How Criminals Get Guns Illegally 6

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Department of Treasury, Bureau of Alcohol, Tobacco, Firearms and Explosives. Commerce in Firearms in the United States. Washington, D.C.: Department of the Treasury, 2000. 7 Department of Treasury, Bureau of Alcohol, Tobacco, Firearms and Explosives. ATF Regulatory Actions: Report to the Secretary on Firearms Initiatives. Washington, D.C.: Department of the Treasury, 2000. 8 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms and Explosives. Following the Gun: Enforcing Federal Law Against Firearms Traffickers. Washington, D.C.: Department of the Treasury, 2000. 9 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms and Explosives. Following the Gun: Enforcing Federal Law Against Firearms Traffickers. Washington, D.C.: Department of the Treasury, 2000. (Percentages do not total to 100 because some investigations involved guns used in multiple types of crimes. 10 Department of Justice. “Nonfatal firearm-related violent crimes, 19932005.” DOJ. http://www.ojp.usdoj.gov/bjs/glance/tables/firearmnonfataltab.htm; Department of Justice. “Homicide trends in the U.S.” DOJ. http://www.ojp.usdoj.gov/bjs/homicide/tables/weaponstab.htm 11 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms and Explosives. Following the Gun: Enforcing Federal Law Against Firearms Traffickers. Washington, D.C.: Department of the Treasury, 2000; This was the only comprehensive study of its kind. 12 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms and Explosives. Following the Gun: Enforcing Federal Law Against Firearms Traffickers. Washington, D.C.: Department of the Treasury, 2000. 13 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms and Explosives. FFL Newsletter Federal Firearms Licensee Information Service. Washington, D.C.: Department of the Treasury, August 2005. 14 Department of Treasury, Bureau of Alcohol, Tobacco, Firearms and Explosives. Commerce in Firearms in the United States. Washington, D.C.: Department of the Treasury, 2000. 15 Interview with Georgia trafficker. 16 U.S.A. v. Downs, et al. Filed September 2006 in U.S. District Court, Eastern District of Pennsylvania. 17 U.S.A. v. Blount, et al. Filed November 2001 in U.S. District Court, Southern District of New York.Georgia.

24 18


Interview with Georgia trafficker. (It is possible that when this or other straw purchases described in this report were made, the gun stores were cooperating with federal law enforcement authorities.) 19 February 2008 Deposition of Herman Ward in City of New York v. A-1 Jewelry and Pawn, et al. Filed May 2006 in U.S. District Court, Eastern District of New York. 20 Selling Crime: High Crime Gun Stores Fuel Criminals. Washington, D.C.: Americans for Gun Safety, 2004.; U.S.A. v. Salazar. Filed May 2004 in U.S. District Court, Southern District of New York.; U.S.A. v. Robinson. Filed March 2005 in U.S. District Court, Southern District of Ohio.; U.S.A. v. Walker. Filed October 1998 in U.S. District Court, Southern District of Ohio.; U.S.A. v. Hancock. Filed February 1995 in U.S. District Court, Southern District of Ohio.; U.S.A. v. Perkins. Filed February 1995 in U.S. District Court, Southern District of Ohio. In 1998, there were 55,990 crime gun traces among the 83,272 dealers nationwide. Department of Treasury, Bureau of Alcohol, Tobacco, Firearms and Explosives. Commerce in Firearms in the United States. Washington, D.C.: Department of the Treasury, 2000. 21 ATF Press release. “ATF/Secret Service Arrest 3, Seize Inventory of Gun Dealer ‘Fueling Violent Crime in New Orleans.” May 16, 2007. 22 US News and World Report, “A Well-Worn Path to a Gun Shop Door,” July 15, 2007. 23 May 2006 indictment in U.S.A. v. D’Andrea. Filed April 2006 in U.S. District Court in Connecticut. 24 May 2006 indictment in U.S.A. v. D’Andrea. Filed April 2006 in U.S. District Court in Connecticut. 25 September 2007 judgment in U.S.A. v. D’Andrea. Filed April 2006 in U.S. District Court in Connecticut. 26 Interview with South Carolina trafficker. 27 Interviews with Pennsylvania, South Carolina and Georgia straw purchasers. 28 Interviews with traffickers and straws. 29 Interviews with Florida, Georgia traffickers and straw purchasers. 30 Interview with Florida trafficker. 31 Interview with Florida trafficker. 32 Interview with Georgia straw purchaser. 33 Interview with Georgia straw purchaser. 34 Interview with Virginia trafficker.


25

Kraft, Mark. “Firearms Trafficking 101 Or Where Do Crime Guns Come From?” United States Attorneys’ Bulletin, January 2002. 36 Interview with former Pennsylvania gun seller. 37 Interview with Pennsylvania straw purchaser. 38 Interview with Florida trafficker. 39 Interview with Virginia trafficker. 40 Interview with Pennsylvania straw purchaser. 41 Interview with former South Carolina gun seller. 42 Interview with Pennsylvania straw purchaser. 43 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms and Explosives. Crime Gun Trace Reports (2000) National Report. Washington, D.C.: Department of Justice, 2002. The ATF’s definition of a multiple sale includes purchases of two or more guns within five business days. See 27 CFR § 478.126a. 44 Following is a list of those cases filed in the Eastern District of Pennsylvania: 06cr00033; 02cr00539; 98cr00437; 05cr00555; 05cr00540; 05cr00421; 03cr00279; 02cr00667; 02cr00069; 99cr00540; 06cr00639; 03cr00622; 02cr00470; 03cr00269; 04cr00059; 01cr00142; 99cr00055; 04cr00296; 06cr00500; 04cr00573; 98cr00060; 00cr00738; 06cr00461; 97cr00326; 06cr00213; 02cr00210; 00cr00529; 99cr00500; 01cr00129; 03cr00282; 00cr00483; 01cr00435; 00cr00484; 01cr00436; 05cr00291; 01cr00439; 03cr00822; 01cr00666; 98cr00443; 00cr00086; 01cr00368; 00cr00246; 02cr00051; 04cr00140; 07cr00146; 01cr00152; 99cr00506; 07cr00506; 99cr00512; 04cr00384; 98cr00505; 06cr00716; 02cr00394; 04cr00816; 03cr00785; 04cr00461; 02cr00058; 99cr00513; 99cr00493; 00cr00245; 99cr00558; 99cr00494; 00cr00084; 07cr00508; 01cr00086; 07cr00509; 99cr00591; 00cr00089; 04cr00235; 05cr00414; 02cr00362; 04cr00254; 02cr00471; 02cr00726; 03cr00026; 03cr00331; 03cr00561; 06cr00146; 05cr00727; 04cr00227; 06cr00171; 99cr00007; 05cr00552; 06cr00660; 04cr00449; 99cr00463; 99cr00310; 99cr00215; 05cr00331; 02cr00226; 99cr00508; 99cr00480; 00cr00030; 00cr00279; 99cr00309; 99cr00665; 98cr00437; 99cr00308; 05cr00324; 99cr00561; 04cr00475; 99cr00479; 02cr00224; 04cr00675; 06cr00525; 96cr00568; 97cr00599; 96cr00260; 04cr00831; 02cr00547; 02cr00391; 02cr00725; 01cr00593; 04cr00446; 03cr00697; 01cr00461; 01cr00158; 99cr00280; 97cr00132; 04cr00502; 96cr00201; 98cr00021; 06cr00534; 07cr00626; 98cr00063; 03cr00126; 07cr00516; 06cr00551; 06cr00443; 05cr00556; 06cr00143; 04cr00823; 04cr00578; 99cr00183; 01cr00580; 04cr00238; 06cr00506;

26


03cr00250; 00cr00698; 06cr00122; 05cr00449; 97cr00486; 04cr00108; 03cr00334; 04cr00518; 99cr00179; 03cr00426; 04cr00517; 98cr00437; 03cr00694; 99cr00489; 05cr00052; 06cr00534; 04cr00362; 05cr00127; 02cr00600; 07cr00173; 99cr00113; 06cr00372; 01cr00666; 07cr00254; 06cr00526; 06cr00316; 05cr00080; 02cr00301; 04cr00353; 05cr00385; 00cr00478; 96cr00150; 05cr00183; 01cr00070; 00cr00672; 99cr00506; 02cr00216; 06cr00374; 05cr00142; 05cr00640; 01cr00390; 02cr00547; 99cr00352; 96cr00196; 02cr00471; 04cr00474; 06cr00213; 05cr00301. 45 U.S.A. v. Johnson et al. Filed August 1999 in U.S. District Court, Eastern District of Pennsylvania. 46 Interview with Pennsylvania straw purchaser. 47 Interview with Georgia trafficker. 48 Interview with Ohio straw purchaser. 49 Interview with Georgia straw purchaser. 50 October 2001 Indictment in U.S.A. v. Mathews, et al. Filed October 2001 in U.S. District Court, Southern District of New York. 51 Testimony in U.S.A. v. Stevens et al. Filed January 2003 in U.S. District Court in the Southern District of New York. 52 Interview with Ohio straw purchaser. 53 U.S.A. v. Craver. Filed December 2003 in U.S. District Court, South District of Ohio. 54 Interview with Ohio straw purchaser. 55 Interview with Ohio trafficker. 56 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms and Explosives. Crime Gun Trace Reports (2000) National Report. Washington, D.C.: Department of Justice, 2002. 57 Interview with Ohio straw purchaser. 58 Interview with former Georgia gun seller. 59 Interview with a former Indiana gun seller. 60 Selling Crime: High Crime Gun Stores Fuel Criminals. Washington, D.C.: Americans for Gun Safety, 2004. In 1998, there were 55,990 crime gun traces among the 83,272 dealers nationwide. Department of Treasury, Bureau of Alcohol, Tobacco, Firearms and Explosives. Commerce in Firearms in the United States. Washington, D.C.: Department of the Treasury, 2000. 61 Interview with former South Carolina gun seller. 62 Interview with former Georgia gun seller. 63 Interview with former Georgia gun seller. 64 Interview with Virginia trafficker. 65 Interview with Ohio straw purchaser.


27

Interview with Ohio straw purchaser. Interview with Ohio straw purchaser. 68 Interview with Ohio straw purchaser. 69 Interview with Ohio gun store owner. 70 Interviews with former gun sellers. 71 Interview with Georgia trafficker. 72 Interview with Ohio trafficker. 73 The 1998 report relied on “review of available literature” and “regression analysis to test statistically whether the difference in the severity of a pair of states’ gun laws can explain the movement of crime guns between states.” The study used ATF trace data from 1989 to 1997. 74 Expert report of Lucy Allen and Jonathan Portes, National Economic Research Associates (NERA) in Hamilton v. AccuTek, Filed January 1995 in U.S. District Court, Eastern District of New York. NERA defined a state’s level of control based on whether it had the following limits: requiring a license or permit for purchase, requiring an ID card for purchase, restrictions on multiple purchases, a waiting period, requiring a local dealer’s license, and reporting sales to state or local agency. 75 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms and Explosives. “ATF Firearms Trace Data.” ATF. http://www.atf.gov/ firearms/tracedata/index.htm 76 Interview with Georgia trafficker. 77 Interview with Georgia trafficker. 78 Interview with Ohio trafficker. 79 Interview with Virginia trafficker. 80 Department of Justice Bureau of Alcohol, Tobacco, Firearms and Explosives. A Progress Report: Gun Dealer Licensing and Illegal Gun Trafficking (1997). 81 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms and Explosives. Following the Gun: Enforcing Federal Law Against Firearms Traffickers. Washington, D.C.: Department of the Treasury, 2000. 82 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms and Explosives. Gun Shows: Brady Checks and Crime Gun Traces. Washington, D.C.: Department of the Treasury, 1999. 83 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms and Explosives. Gun Shows: Brady Checks and Crime Gun Traces. Washington, D.C.: Department of the Treasury, 1999. 67

28 84


General Accounting Office. Counterfeit Identification and Identification Fraud, Statement of Robert J. Cramer, Managing Director Office of Special Investigations to the Senate Committee on Finance, 2001. 85 Department of Justice Bureau of Alcohol, Tobacco, Firearms and Explosives. ATF 2005 Annual Report. Washington, D.C.: Department of the Treasury, 2006. 86 Department of Treasury, Bureau of Alcohol, Tobacco, Firearms and Explosives. Commerce in Firearms in the United States. Washington, D.C.: Department of the Treasury, 2000. 87 Government Accountability Office. Gun Control and Terrorism: FBI Could Better Manage Firearm-Related Background Checks Involving Terrorist Watch List Records. Washington, D.C.: GAO, 2005.



Chapter 2

GUN CONTROL LEGISLATION* William J. Krouse SUMMARY Congress has continued to debate the efficacy and constitutionality of federal regulation of firearms and ammunition, with strong advocates arguing for and against greater gun control. Although several dozen gun controlrelated proposals were introduced in recent Congresses, only a handful of those bills have received significant legislative action. On June 26, 2008, however, the Supreme Court issued its decision in District of Columbia v. Heller and found that the District of Columbia (DC) handgun ban violates an individual’s right under the Second Amendment to lawfully possess a handgun in his home for self defense. Dissatisfied with the District’s response to this decision, pro gun Members have reportedly convinced the House leadership to consider a bill (H.R. 6691) in September that would overturn major provisions of the District’s gun laws. Earlier in the 1 10th Congress, the tragic events at Virginia Tech on April 16, 2007, prompted the passage of the NICS Improvement Amendments Act (P.L. 110- 180; H.R. 2640). This Act includes provisions that encourage states, as a condition of federal funding, to update and make available

30

William J. Krouse

disqualifying records on persons found to be “mental defective” and convicted of misdemeanor crimes of domestic violence for inclusion in the National Instant Criminal Background Check System (NICS). On a related matter, the Senate Veterans’ Affairs Committee has approved a bill (S. 2969) that was amended to include a provision that would revamp procedures by which veterans are found to be “mentally incompetent” and, thus, lose their firearms eligibility (for a similar bill, see S. 3167). The Senate Judiciary Committee, meanwhile, has reported a bill (S. 376) that would amend the Law Enforcement Officers Safety Act (LEOSA) to widen eligibility under that law, as well as clarify other provisions related to eligibility, credentialing, and certification. The House companion bill is H.R. 2726. Congress has made permanent funding limitations on the Bureau of Alcohol, Tobacco, Firearms and Explosives’ release of firearm trace data in the Consolidated Appropriations Act, 2008 (P.L. 110-161). In addition, the House has passed a public housing bill (H.R. 6216) that includes a provision that would prohibit housing authorities from barring tenants from possessing legal firearms as a condition of their lease. The Senate leadership, however, has blocked an amendment to a public lands bill (S. 2483) that would overturn federal regulations prohibiting loaded and concealed firearms in National Parks and Wildlife Refuges (for a similar bill, see S. 2619). Other salient gun control-related issues and related proposals that may reemerge in the remainder of the 110th Congress include (1) authorizing federal judges, judicial officials, U.S. Attorneys, and Department of Justice personnel to carry firearms for self-defense (H.R. 2325 and S. 1235); (2) retaining Brady background check records for approved transactions to enhance terrorist screening (S. 1237, S. 2935, H.R. 2074, and H.R. 3547); (3) more strictly regulating certain long-range .50 caliber rifles (S. 1331); (4) further regulating “assault weapons” and “large capacity ammunition feeding devices” (H.R. 1022, H.R. 1859, H.R. 6257, and S. 2237); and (5) requiring background checks for firearm transfers at gun shows (H.R. 96, S. 2237, and S. 2577).

*

This is an edited, excerpted and augmented edition of a Congressional Research Service Report for Congress publication, Order Code RL 32842, dated September 5, 2008.

Gun Control Legislation

31

LEGISLATIVE DEVELOPMENTS Congress has continued to debate the efficacy and constitutionality of further federal regulation of firearms and ammunition. Several dozen gun control-related proposals were introduced in recent Congresses, but only a handful of those bills have received significant legislative action. On June 26, 2008, however, the Supreme Court issued its decision in District of Columbia v. Heller and found that the District of Columbia (DC) handgun ban violates an individual’s right under the Second Amendment to lawfully possess a handgun in his home for self defense.1 Dissatisfied with the District’s response to the Heller decision, pro gun Members have reportedly convinced the House leadership to consider a bill (H.R. 6691) after the Labor Day recess that would further overturn major provisions of the District’s gun laws. Earlier in the 110th Congress, the tragic events at Virginia Tech on April 16, 2007, prompted the passage of the NICS Improvement Amendments Act (P.L. 110- 180; H.R. 2640), a bill designed to provide incentives to states to update and make available disqualifying records on persons adjudicated “mental defective” and convicted of misdemeanor domestic abuse crimes accessible through the National Criminal Background Check System (NICS) for the purposes of determining firearms possession and transfer eligibility. On a related matter, the Senate Veterans’ Affairs Committee has approved a bill (S. 2969) that was amended in full committee markup by Senator Richard Burr to include a provision that would prohibit the Department of Veterans of Affairs (VA) from determining a veteran to be “mentally incompetent” without “the order or finding of a judge, magistrate, or other judicial authority of competent jurisdiction.” The Burr amendment would also require the VA to notify veterans who are found to be mentally incompetent that they will lose their firearms possession eligibility and would give those veterans greater opportunity to appeal those findings administratively. Senator Burr previously introduced a similar bill as a stand-alone bill (S. 3167). The Senate Judiciary Committee has reported a bill (S. 376; S.Rept. 110150) sponsored by its chair, Senator Patrick Leahy, that would amend the Law Enforcement Officers Safety Act (LEOSA) to widen eligibility under that law, as well as clarify other provisions related to eligibility, credentialing, and certification. Representative Randy Forbes has introduced a similar bill (H.R. 2726). Congress has made permanent funding limitations on the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF’ s) release of firearm trace

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William J. Krouse

and multiple handgun sales report data in the Consolidated Appropriations Act, 2008 (P.L. 110-161). In addition, the House has passed legislation (H.R. 6216) that includes a provision that would prohibit the Housing and Urban Development Secretary from accepting as reasonable any management or related fees charged by a Public Housing Authority (PHA) for enforcing any provision of a lease agreement established by a PHA that requires tenants to register an otherwise legally possessed firearm, or prohibits firearm possession outright. On the other hand, the provision would also allow PHAs to terminate the lease of any tenant who illegally uses a firearm. The Senate leadership, meanwhile, has successfully blocked an amendment during consideration of a public lands bill (S. 2483) that would overturn federal regulations that prohibit the carrying of loaded and concealed firearms in National Parks and Wildlife refuges. Senator Tom Coburn previously introduced a similar bill (S. 2619). Other salient gun control-related issues and related proposals that may reemerge in the remainder of the 1 10th Congress include (1) authorizing federal judges, judicial officials, U.S. Attorneys, and Department of Justice personnel to carry firearms for self-defense (H.R. 2325 and S. 1235); (2) retaining Brady background check records for approved transactions to enhance terrorist screening (S. 1237, S. 2935, H.R. 2074, and H.R. 3547); (3) more strictly regulating certain long-range .50 caliber rifles (S. 1331); (4) further regulating “assault weapons” and “large capacity ammunition feeding devices” (H.R. 1022, H.R. 1859, H.R. 6237, and S. 2237); and (5) requiring background checks for firearm transfers at gun shows (H.R. 96, S. 2237, and S. 2577).

BACKGROUND AND ANALYSIS Pro/Con Debate Through the years, legislative proposals to restrict the availability of firearms to the public have raised the following questions: What restrictions on firearms are permissible under the Constitution? Does gun control constitute crime control? Can the nation’s rates of homicide, robbery, and assault be reduced by the stricter regulation of firearm commerce or ownership? Would restrictions stop attacks on public figures or thwart


33

deranged persons and terrorists? Would household, street corner, and schoolyard disputes be less lethal if firearms were more difficult and expensive to acquire? Would more restrictive gun control policies have the unintended effect of impairing citizens’ means of self-defense? In recent years, proponents of gun control legislation have often held that only federal laws can be effective in the United States. Otherwise, they say, states with few restrictions will continue to be sources of guns that flow illegally into more restrictive states. They believe that the Second Amendment to the Constitution, which states that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed,” is being misread in today’s modern society. They argue that the Second Amendment (1) is now obsolete, with the presence of professional police forces; (2) was intended solely to guard against suppression of state militias by the central government and therefore restricted in scope by that intent; and (3) does not guarantee a right that is absolute, but one that can be limited by reasonable requirements. They ask why in today’s modern society a private citizen needs any firearm that is not designed primarily for hunting or other recognized sporting purposes. Proponents of firearm restrictions have advocated policy changes on specific types of firearms or components that they believe are useful primarily for criminal purposes or that pose unusual risks to the public. Fully automatic firearms (i.e., machine guns) and short-barreled rifles and shotguns have been subject to strict regulation since 1934. Fully automatic firearms have been banned from private possession since 1986, except for those legally owned and registered with the Secretary of the Treasury on May 19, 1986. More recently, “Saturday night specials” (loosely defined as inexpensive, small handguns), “assault weapons,” ammunition- feeding devices with capacities for more than seven rounds, and certain ammunition have been the focus of control efforts. Opponents of gun control vary in their positions with respect to specific forms of control but generally hold that gun control laws do not accomplish what is intended. They argue that it is as difficult to keep weapons from being acquired by “high-risk” individuals, even under federal laws and enforcement, as it was intended to stop the sale and use of liquor during Prohibition. In their view, a more stringent federal firearm regulatory system would only create problems for law-abiding citizens, bring mounting frustration and escalation of bans by gun regulators, and possibly threaten citizens’ civil rights or safety.

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William J. Krouse

Some argue that the low violent crime rates of other countries have nothing to do with gun control, maintaining instead that multiple cultural differences are responsible. Gun control opponents also reject the assumption that the only legitimate purpose of ownership by a private citizen is recreational (i.e., hunting and target-shooting). They insist on the continuing need of people for effective means to defend person and property, and they point to studies that they believe show that gun possession lowers the incidence of crime. They say that the law enforcement and criminal justice system in the United States has not demonstrated the ability to furnish an adequate measure of public safety in all settings. Some opponents believe further that the Second Amendment includes a right to keep arms as a defense against potential government tyranny, pointing to examples in other countries of the use of firearm restrictions to curb dissent and secure illegitimate government power. The debate has been intense. To gun control advocates, the opposition is out of touch with the times, misinterprets the Second Amendment, and is lacking in concern for the problems of crime and violence. To gun control opponents, advocates are naive in their faith in the power of regulation to solve social problems, bent on disarming the American citizen for ideological or social reasons, and moved by irrational hostility to firearms and gun enthusiasts.

Gun-Related Statistics Crime and mortality statistics are often used in the gun control debate. According to a recent study, however, none of the existing sources of statistics provide either comprehensive, timely, or accurate data with which to definitively assess whether there is a causal connection between firearms and violence.2 For example, existing data do not show whether the number of people shot and killed with semiautomatic assault weapons declined during the 10-year period (1994-2004) that those firearms were banned from further proliferation in the United States.3 Presented below are data on the following topics: (1) the number of guns in the United States, (2) firearm-related homicides, (3) non-lethal/firearm-related victimizations, (4) gun violence and youth, (5) gun-related mortality rates, (6) use of firearms for personal defense,


35

and (7) recreational use of firearms. In some cases, the data presented are more than a decade old but remain the most recent available. How many Guns Are in the United States? The National Institute of Justice (NIJ) reported in a national survey that in 1994, 44 million people, approximately 35% of households, owned 192 million firearms, 65 million of which were handguns.4 Seventy-four percent of those individuals were reported to own more than one firearm.5 According to the ATF, by the end of 1996, approximately 242 million firearms were available for sale to or were possessed by civilians in the United States.6 That total includes roughly 72 million handguns (mostly pistols, revolvers, and derringers), 76 million rifles, and 64 million shotguns.7 By 2000, the number of firearms had increased to approximately 259 million: 92 million handguns, 92 million rifles, and 75 million shotguns.8 Most guns available for sale are produced domestically. In recent years, 1 to 2 million handguns were manufactured each year, along with 1 million rifles and fewer than 1 million shotguns.9 Annual imports are considerably smaller — from 200,000 to 400,000 handguns, 200,000 rifles, and 100,000 to 200,000 shotguns.10 Retail prices of guns vary widely, from $75 or less for inexpensive, low-caliber handguns to more than $1,500 for higher-end, standard-production rifles and shotguns.11 Data are not available on the number of “assault weapons” in private possession or available for sale, but one study estimated that 1.5 million assault weapons were privately owned in 1994.12 How often are Guns Used in Homicides? Reports submitted by state and local law enforcement agencies to the FBI and published annually in the Uniform Crime Reports13 indicate that the violent crime rate has declined from 1981 through 2004; however, the number of homicides and the proportion involving firearms have increased in recent years. From 1993 to 1999, the number of firearm-related homicides decreased by an average rate of nearly 11% annually, for an overall decrease of 49%. From 2000 to 2003, known firearm-related homicides increased by • • •

2.0% (to 8,661) in 2000, 2.6% (to 8,890) in 2001, 7.2% (to 9,528) in 2002, and

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William J. Krouse •

1.4% (to 9,659) in 2003.

In 2004, firearms-related homicides decreased by 2.8% (to 9,385). In 2005, however, firearms-related homicides increased again by 8.2% (to 10,158). In 2006, firearms- related homicides increased by 0.2% (to 10,177, according to preliminary data). In the past 10 years, about half of all homicides for which the cause is known were handgun-related. Of those homicides, the annual percentage that were firearms- related ranged from a low of 63% in 2001 to a high of 68% in 2006. How often are Guns Used in Non-lethal Crimes? The other principal source of national crime data is the National Crime Victimization Survey (NCVS) conducted by the U.S. Census Bureau and published by the Bureau of Justice Statistics (BJS). The NCVS database provides some information on the weapons used by offenders, based on victims’ reports. Based on data provided by survey respondents in calendar year 2003, BJS estimated that, nationwide, there were 5.4 million violent crimes (rape or sexual assault, robbery, aggravated assault, and simple assault). Weapons were used in about 1.2 million of these criminal incidents. Firearms were used by offenders in about 367,000 of these incidents, or roughly 7%.14 How Prevalent Is Gun Violence among Youth? Youth crime statistics have often been used in the gun control debate. The number of homicides committed annually with a firearm by persons in the 14to 24-year-old age group increased sharply from 1985 to 1993; they have declined since then, but have not returned to the 1985 level. According to BJS, from 1985 to 1993, the number of firearm-related homicides committed by 14- to 17-year-olds increased by 294%, from 855 to 3,371. From 1993 to 2000, the number of firearm-related homicides committed by persons in this age group decreased by 68%, from 3,371 to 1,084. From 1985 to 1993, firearm-related homicides committed by 18- to 24-year-olds increased by 142%, from 3,374 to 8,171. From 1993 to 1999, firearm-related homicides committed by persons in this age group decreased by 39%, from 8,171 to 4,988. They increased by 3% to 5,162 in 2000.15 More recent statistics for youth have yet to be reported. Although gun-related violence in schools is statistically a rare event, a DOJ survey indicated that 12.7% of


37

students age 12 to 19 reported knowing a student who brought a firearm to school.16 How Prevalent Are Gun-Related Fatalities? The source of national data on firearm deaths is the publication Vital Statistics, published each year by the National Center for Health Statistics. Firearm deaths reported by coroners in each state are presented in four categories: homicides and legal intervention,17 suicides, accidents, and unknown circumstances. Firearm fatalities decreased continuously from 1993 through 2001, by an average rate of nearly 5% annually, for an overall decrease of nearly 28%. Compared with firearm deaths in 2000, such deaths increased by 3% in 2001. They increased again by 2% in 2002. In that year, there was a total of 30,242 firearm deaths. Of this total, 12,129 were homicides or due to legal intervention, 17,108 were suicides, 762 were unintentional (accidental) shootings, and 243 were of unknown cause.18 Of firearms-related deaths in 2002, there were 1,443 juvenile (younger than 18 years old). Of the juvenile total, 879 were homicides or due to legal intervention, 423 were suicides, 115 were unintentional, and 26 were of unknown cause. From 1993 to 2001, firearm-related deaths for juveniles decreased by an average rate of 10% annually, for an overall decrease of 56%. From 2001 to 2002, such deaths increased slightly, by less than 1 %.19 How often are Firearms Used in Self-Defense? According to BJS, NCVS data from 1987 to 1992 indicate that in each of those years, roughly 62,200 victims of violent crime (1% of all victims of such crimes) used guns to defend themselves.20 Another 20,000 persons each year used guns to protect property. Persons in the business of self-protection (police officers, armed security guards) may have been included in the survey.21 Another source of information on the use of firearms for self-defense is the National Self Defense Survey conducted by criminology professor Gary Kleck of Florida State University in the spring of 1993. Citing responses from 4,978 households, Dr. Kleck estimated that handguns have been used 2.1 million times per year for self-defense, and that all types of guns have been used approximately 2.5 million times a year for that purpose during the 1988- 1993 period.22

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Why do these numbers vary by such a wide margin? Law enforcement agencies do not collect information on the number of times civilians use firearms to defend themselves or their property against attack. Such data have been collected in household surveys. The contradictory nature of the available statistics may be partially explained by methodological factors. That is, these and other criminal justice statistics reflect what is reported to have occurred, not necessarily the actual number of times certain events occur. Victims and offenders are sometimes reluctant to be candid with researchers. So, the number of incidents can only be estimated, making it difficult to state with certainty the accuracy of statistics such as the number of times firearms are used in self-defense. For this and other reasons, criminal justice statistics often vary when different methodologies are applied. Survey research can be limited, because it is difficult to produce statistically significant findings from small incident populations. For example, the sample in the National Self-Defense Survey might have been too small, given the likely low incidence rate and the inherent limitations of survey research. What about the Recreational Use of Guns According to NIJ, in 1994, recreation was the most common motivation for owning a firearm.23 There were approximately 15 million hunters, about 35% of gun owners, in the United States and about the same number and percentage of gun owners engaged in sport shooting in 1994.24 More recently, the U.S. Fish and Wildlife Service reported that there were more than 14.7 million persons who were paid license holders in 200325 and, according to the National Shooting Sports Foundation, in that year, approximately 15.2 million persons hunted with a firearm and nearly 19.8 million participated in target shooting.26

FEDERAL REGULATION OF FIREARMS Two major federal statutes regulate the commerce in, and possession of, firearms: the National Firearms Act of 1934 (26 U.S.C. § 5801 et seq.) and the Gun Control Act of 1968, as amended (18 U.S.C. Chapter 44, § 921 et seq.). Supplementing federal law, many state firearm laws are stricter than federal law. For example, some states require permits to obtain firearms and impose a


39

waiting period for firearm transfers. Other states are less restrictive, but state law cannot preempt federal law. Federal law serves as the minimum standard in the United States.

The National Firearms Act (NFA) The NFA was originally designed to make it difficult to obtain types of firearms perceived to be especially lethal or to be the chosen weapons of “gangsters,” most notably machine guns and short-barreled long guns. This law also regulates firearms, other than pistols and revolvers, that can be concealed on a person (e.g., pen, cane, and belt buckle guns). It taxes all aspects of the manufacture and distribution of such weapons, and it compels the disclosure (through registration with the Attorney General) of the production and distribution system from manufacturer to buyer.

The Gun Control Act of 1968 (GCA) As stated in the GCA, the purpose of federal firearm regulation is to assist federal, state, and local law enforcement in the ongoing effort to reduce crime and violence. In the same act, however, Congress also stated that the intent of the law is not to place any undue or unnecessary burdens on law-abiding citizens in regard to the lawful acquisition, possession, or use of firearms for hunting, trapshooting, target shooting, personal protection, or any other lawful activity. The GCA, as amended, contains the principal federal restrictions on domestic commerce in small arms and ammunition. The statute requires all persons manufacturing, importing, or selling firearms as a business to be federally licensed; prohibits the interstate mail-order sale of all firearms; prohibits interstate sale of handguns generally and sets forth categories of persons to whom firearms or ammunition may not be sold, such as persons under a specified age or with criminal records; authorizes the Secretary of the Treasury to prohibit the importation of non-sporting firearms; requires that dealers maintain records of all commercial gun sales; and establishes special penalties for the use of a firearm in the perpetration of a federal drug trafficking offense or crime of violence.

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Private transactions between persons “not engaged in the business” are not covered by the GCA. These transactions and other matters such as possession, registration, and the issuance of licenses to firearm owners may be covered by state laws or local ordinances. As amended by the Brady Handgun Violence Prevention Act, 1993 (P.L. 103-159), the GCA requires background checks be completed for all nonlicensed persons seeking to obtain firearms from federal firearms licensees. For a listing of other major firearm and related statutes, see the Appendix. Firearm Transfer and Possession Eligibility Under current law, there are nine classes of persons prohibited from possessing firearms: (1) persons convicted in any court of a crime punishable by imprisonment for a term exceeding one year; (2) fugitives from justice; (3) drug users or addicts; (4) persons adjudicated mental defectives or committed to mental institutions; (5) unauthorized immigrants and most nonimmigrant visitors; (6) persons dishonorably discharged from the Armed Forces; (7) U.S. citizenship renunciates; (8) persons under court-order restraints related to harassing, stalking, or threatening an intimate partner or child of such intimate partner; and (9) persons convicted of misdemeanor domestic violence (18 U.S.C. § 922(g) and (n)). Since 1994, moreover, it has been a federal offense for any nonlicensed person to transfer a handgun to anyone younger than 18 years old. It has also been illegal for anyone younger than 18 years old to possess a handgun (there are exceptions to this law related to employment, ranching, farming, target practice, and hunting) (18 U.S.C. § 922(x)). Licensed Dealers and Firearm Transfers Under current law, federal firearms licensees (hereafter referred to as licensees) may ship, transport, and receive firearms that have moved in interstate and foreign commerce. Licensees are currently required to verify with the FBI through a background check that nonlicensed persons are eligible to possess a firearm before subsequently transferring a firearm to them. Licensees must also verify the identity of nonlicensed transferees by inspecting a government-issued identity document (e.g., a driver’s license). Licensees may engage in interstate transfers of firearms among themselves without conducting background checks. Licensees may transfer long guns (rifles and shotguns) to out-of-state residents, as long as the


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transactions are face-to-face and not knowingly in violation of the laws of the state in which the unlicensed transferees reside. Licensees, however, may not transfer handguns to unlicensed out-of-state residents. Transfer of handguns by licensees to anyone younger than 21 years old is also prohibited, as is the transfer of long guns to anyone younger than 18 years old (18 U.S.C. §922(b)). Also, licensees are required to submit “multiple sales reports” to the Attorney General if any person purchases two or more handguns within five business days. Furthermore, licensees are required to maintain records on all acquisitions and dispositions of firearms. They are obligated to respond to ATF agents requesting firearm tracing information within 24 hours. Under certain circumstances, ATF agents may inspect, without search warrants, their business premises, inventory, and gun records. Private Firearm Transfers Nonlicensees are prohibited from acquiring firearms from out-of-state sources (except for long guns acquired from licensees under the conditions described above). Nonlicensees are also prohibited from transferring firearms to any persons who they have reasonable cause to believe are not residents of the state in which the transaction occurs. In addition, since 1986, it has been a federal offense for nonlicensees to knowingly transfer a firearm to prohibited persons. It is also notable that firearm transfers initiated through the Internet are subject to the same federal laws as transfers initiated in any other manner.27

Brady Handgun Violence Prevention Act After seven years of extensive public debate, Congress passed the Brady Handgun Violence Prevention Act of 1993 (P.L. 103-159, the Brady Act)28 as an amendment to the Gun Control Act of 1968, requiring background checks for firearm transfers between federally licensed firearm dealers and nonlicensed persons. The Brady Act included both interim and permanent provisions.

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Interim Provisions Under the interim provisions, which were in effect through November 1998, background checks were required for handgun transfers, and licensed firearm dealers were required to contact local chief law enforcement officers (CLEOs) to determine the eligibility of prospective customers to be transferred a handgun. The CLEOs were given up to five business days to make such eligibility determinations. Permanent Provisions Under the Brady permanent provisions, Congress required the Attorney General to establish a national instant criminal background check system (NICS) by November 1998. In turn, the Attorney General delegated this responsibility to the FBI. Today, the FBI’s Criminal Justice Information Services (CJIS) division maintains the NICS. Under the Brady permanent provisions, federally licensed firearm dealers are required to contact the FBI or state authorities, who in turn contact the FBI, to determine whether prospective customers are eligible to be transferred a handgun or long gun. The FBI and state authorities have up to three business days to make such eligibility determinations. It is notable that federal firearms laws serve as the minimum standard in the United States. States may choose, and have chosen, to regulate firearms more strictly. For example, some states require set waiting periods and/or licenses for firearm transfers and possession. POC and Non-POC States Although the FBI handles background checks entirely for some states, other states serve as full or partial points of contact (POCs) and federal firearms licensees contact a state agency, and the state agency contacts the FBI for such checks. In 14 states, state agencies serve as full POCs and conduct background checks for both long gun and handgun transfers. In four states, state agencies serve as partial POCs for handgun permits, whereas in another four states, state agencies serve as partial POCs for handgun transfers only. In these eight partial POC states, checks for long gun transfers are conducted entirely through the FBI. In the 28 non-POC states, the District of Columbia, and four territories (Guam, Northern Mariana Islands, Puerto Rico, and the Virgin Islands), federal firearms licensees contact the FBI directly to conduct background checks through NICS for both handgun and long gun checks.


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For state agencies (POCs), background checks may not be as expeditious, but they may be more thorough, because state agencies may have greater access to databases and records that are not available through NICS. According to the Government Accountability Office (GAO), this is particularly true for domestic violence misdemeanor offenses and protective orders.29 Brady Background Check Statistics Through calendar year 2005, nearly 70 million background checks for firearm transfer applications occurred under both the interim and permanent provisions of the Brady Act.30 Of this number, nearly 1,360,000 background checks, or about 1.9%, resulted in firearm transfers being denied.31 Under the interim provisions, nearly 13 million firearm background checks (for handguns) were completed during that four-year period, resulting in 312,000 denials.32 Under the permanent provisions of the Brady Act, more than 57 million checks were completed, resulting in over 1 million denials, or a 2% denial rate.33 Nearly 32 million of these checks were completed entirely by the FBI for non-POC states, the District, and four territories.34 Those checks resulted in a denial rate of 1.5%.35 More than 25 million checks were conducted by full or partial POC states.36 Those checks resulted in a higher denial rate of 2.3%.37 System Delayed Transfers NICS eligibility determination rates (how expeditiously the system makes eligibility determinations) have been controversial. According to GAO, about 72% of the NICS checks handled by the FBI resulted in immediate determinations of eligibility. Of the remaining 28% that resulted in a nondefinitive response, neither a “proceed” nor a denial, 80% were turned around within two hours. The remaining 20% of delayed transactions took hours or days for the FBI NICS examiners to reach a final determination.38 In many cases, firearm transfers were delayed because there was an outstanding charge without a final disposition against the person seeking to purchase the firearm. Such cases necessitate that the FBI examiners contact local or state authorities for additional information. Under current law, the FBI is authorized to delay the sale for three business days to determine the outcome of the charge and, thus, establish the eligibility of the transferee to possess a firearm. The FBI reported that, from July 2002 through March 2003,

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the immediate determination rate for NICS increased to 91%, compared with less than 77% from November 2001 through July 2002.39 Systems Availability NICS availability — how regularly the system can be accessed during business hours and not delay legitimate firearm transfers — has also been a source of complaint. GAO found, however, that in the first year of NICS operation, the FBI had achieved its system availability goal of 98% for four months. System availability for the remaining eight months averaged 95.4%.40 The FBI reports that NICS service availability was increased to 99% in FY2001 and FY2002.41 During consideration of legislation in the 106th Congress to extend the Brady Act background check provisions to all firearm transfers at gun shows, the capacity of NICS to instantaneously accomplish these checks became a major stumbling block to enactment.

LEGISLATIVE ACTION IN THE 110TH CONGRESS In the wake of the Supreme Court decision in District of Columbia v. Heller that the DC handgun ban violated an individual’s right under the Second Amendment to possess a handgun, the House of Representatives reportedly will consider legislation to overturn certain related DC gun laws. Some Members of Congress maintain that the DC Council has not changed its laws to adequately reflect the “spirit” of the Supreme Court’s decision. Congress has also passed, and the President has signed, a bill designed to strengthen Brady background checks for firearms transfers as a response to the tragic events at Virginia Tech on April 16, 2007, and other shootings. The Senate Judiciary Committee has approved a bill that would revamp procedures by which Veterans are adjudicated “mentally incompetent” and, thus, lose their firearms eligibility. The House has passed legislation that would prohibit public housing authorities from barring tenants from possessing legal firearms as a condition of their lease. The Senate leadership has prevented consideration by that body of a proposal that would overturn federal regulations prohibiting the possession of loaded and concealed firearms in National Parks and Wildlife Refuges. In addition, the Senate Judiciary Committee has reported legislation that would amend the Law Enforcement Officers Safety Act (P.L. 108-277), a law


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that gives concealed carry privileges to certain qualified active-duty and retired law enforcement officers. Furthermore, Congress has reconsidered and made permanent funding limitations placed on the ATF in regard to the release of firearm trace and multiple handgun sales report data.

Constitutionality of DC Handgun Ban and Related Legislation On June 26, 2008, the Supreme Court issued its decision in District of Columbia v. Heller on the constitutionality of a DC gun law that banned handguns for 32 years, among other things. Passed by the DC Council on June 26, 1976, the DC handgun ban required that all firearms within the District be registered, all owners be licensed, and prohibited the registration of handguns after September 24, 1976. In a 5-4 decision, the Supreme Court found the handgun ban to be unconstitutional, because it violated an individual’s right under the Second Amendment to possess a handgun in his home for lawful purposes such as self defense.42 DC Council Passes Emergency Law On July 15, 2008, the DC Council passed a temporary, emergency law that allows residents to apply for a “home” handgun license that would allow them to keep a handgun in their home as long as that firearm has a capacity of fewer than 12 rounds of ammunition and is not loadable from a magazine in the handgrip, which in effect limits legal handguns under the temporary law to revolvers as opposed to semiautomatic pistols. The emergency law also continues to require that handguns be kept unloaded or disassembled or trigger locked, unless an attack in a home is imminent or underway. Pro gun groups immediately criticized the Council’s emergency law for not being in the “spirit” of the Supreme Court’s decision, because it continued to ban semiautomatic pistols and did not fully roll back the trigger lock requirement. Legislation to Overturn Major DC Gun Laws Reportedly, pro gun Members of Congress are also dissatisfied with the DC Council’s temporary law. On July 24, 2008, Representative Mike Ross filed a motion to discharge the Rules Committee from consideration of H.Res. 1331, a resolution that provides for the consideration of a bill to restore Second Amendment rights in the District of Columbia (H.R. 1399).43 This bill

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is similar to previous bills introduced by Representative Mark Souder and Senators Kay Bailey Hutchison and Orrin Hatch in previous congresses. Representative Ross introduced H.R. 1399 in the 110th Congress for himself and Representative Souder on March 27, 2007, and Senator Hutchison introduced a companion measure (S. 1001) on March 28, 2007. In the 1 10th Congress, Representative Travis Childers introduced a similar bill (H.R. 6691) on July 31, 2008. All three bills would amend the DC Code to • •

• • • • •

limit the Council’s authority to regulate firearms; remove the term “semiautomatic weapon,” defined as a firearm that can fire more than 12 rounds without manually reloading, from the definition of “machine gun”; amend the registration requirements so that they do not apply to handguns, but only to sawed-off shotguns, machine guns, and shortbarreled rifles; remove restrictions on ammunition possession; repeal requirements that DC residents keep firearms in their possession unloaded and disassembled, or bound by a trigger lock; repeal firearm registration requirements generally; and repeal certain criminal penalties for possessing unregistered firearms or carrying unlicensed handguns.

Representatives John Dingell, John Tanner, and Mike Ross reportedly have an agreement with the House leadership to consider H.R. 6691 sometime in early September.44 H.R. 6691 includes language that states as a congressional finding that DC officials “have indicated their intention to continue to unduly restrict law firearm possession and use by citizens of the District.” H.R. 6691 also includes a provision that would allow DC residents to purchase firearms from federally licensed gun dealers in Virginia and Maryland. DC Voting Rights Act Representative Lamar Smith successfully scuttled the District of Columbia House Voting Rights Act of 2007 (H.R. 1433) on March 22, 2007, when he offered a motion to recommit the bill to the House Oversight and Government Reform Committee for consideration of an amendment to repeal


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portions of the DC handgun ban.45 Rather than vote on the motion, debate on H.R. 1433 was postponed indefinitely.

NICS Improvement Amendments Act of 200746 Earlier in the 1 10th Congress, the Senate amended and passed the NICS Improvement Amendments Act of 2007 (H.R. 2640) following lengthy negotiations, as did the House, on December 19, 2007, clearing that bill for the President’s signature. President Bush signed this bill into law on January 8, 2008 (P.L. 110-180). The enacted NICS amendments: •

•

•

•

•

strengthen a provision in the Brady Handgun Violence Prevention Act (P.L. 103-159) that requires federal agencies to provide, and the Attorney General to secure, any government records with information relevant to determining the eligibility of a person to receive a firearm; require states, as a condition of federal assistance, to make available to the Attorney General certain records that would disqualify persons from acquiring a firearm for inclusion in the FBI-administered National Instant Criminal Background Check System (NICS), particularly those records related to convictions for misdemeanor crimes of domestic violence and persons adjudicated as mentally defective;47 require states, as a condition of federal assistance, as well as federal agencies like the Department of Veterans Affairs (VA), to establish administrative relief procedures under which a person who has been adjudicated mental defective could apply to have his firearms possession and transfer eligibility restored;48 authorize additional appropriations for grant programs to help states, courts, and local governments establish or improve automated record systems; and prohibit the FBI from collecting any fees for such background checks.

H.R. 2640 was introduced by Representative Carolyn McCarthy and cosponsored by Representative John Dingell. As passed by the House, by a voice vote, on June 13, 2007, H.R. 2640 reportedly reflected a compromise between groups favoring and opposing greater gun control.49 The Senate

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Judiciary Committee approved similar, but not identical, NICS improvement amendments as part of the School Safety and Law Enforcement Improvement Act of 2004 on August 2, 2007, and reported this bill on September 21, 2007 (S. 2084; S.Rept. 110-183). The Senate Judiciary Committee included four other measures in S. 2084. With some modification, those measures included the School Safety Improvements Act (S. 1217), the Equity in Law Enforcement Act (S. 1448), the PRECAUTION Act (S. 1521), the Terrorist Hoax Improvements Act (S. 735), and the Law Enforcement Officers Safety Act of 2007 (LEOSA, S. 376). Support for the NICS improvement and the LEOSA amendments (described below) in S. 2084 was reportedly divided and uneven, however.50 Citing privacy and cost issues related to the NICS amendments, Senator Coburn reportedly placed a hold on that legislation.51 In addition, some opposition to NICS improvement amendments had coalesced around an assertion made by Larry Pratt of Gun Owners of America that, under these amendments, any veteran who was or had been diagnosed with Posttraumatic Stress Disorder (PTSD)52 and was found to be a “danger to himself or others would have his gun rights taken away ... forever.”53 Under current law, however, any veteran or other VA beneficiary who is adjudicated or determined to be mental defective, because he poses a danger to himself or others, or is incapable of conducting his day- to-day affairs, is ineligible to possess a firearm. A diagnosis of PTSD in and of itself is not a disqualifying factor for the purposes of gun control under the NICS improvement amendments or previous law. Under the enacted NICS improvement amendments, VA beneficiaries who have been determined to be mental defective could appeal for administrative relief and possibly have their gun rights restored if they could demonstrate that they were no longer afflicted by a disqualifying condition.

Veterans, Mental Incompetency, and Firearms Eligibility On June 26, 2008, in full committee markup, Senator Burr successfully amended the Veterans’ Medical Personnel Recruitment and Retention Act of 2008 (S. 2969) with language that would provide that “a veteran, surviving spouse, or child who is mentally incapacitated, deemed mentally incompetent, or experiencing an extended loss of consciousness shall not be considered


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adjudicated as a mental defective” for purposes of the Gun Control Act, “without the order or finding of a judge, magistrate, or other judicial authority of competent jurisdiction that such veteran, surviving spouse, or child is a danger to him or herself or others.” Mental Defective Adjudications Under 27 CFR §478.11, the term “adjudicated as a mental defective” includes a determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease (1) is a danger to himself or others, or (2) lacks the mental capacity to manage his own affairs. The term also includes (1) a finding of insanity by a court in a criminal case and (2) those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. §§850a, 876(b). This definition of “mental defective” was promulgated by the ATF in a final rule published on June 27, 1997.54 In the final rule, the ATF noted that the VA had commented on the “proposed rulemaking” and had correctly interpreted that “adjudicated as a mental defective” includes a person who is found to be “mentally incompetent” by the Veterans Benefit Administration (VBA). Under veterans law, an individual is considered “mentally incompetent” if he or she lacks the mental capacity to contract or manage his or her own affairs for reasons related to injury or disease (under 38 CFR § 3.353).55 In a proposed rulemaking, the ATF opined that the inclusion of “mentally incompetent” in the definition of “mental defective” was wholly consistent with the legislative history of the 1968 Gun Control Act.56 Reportedly, the VA could have been the only federal agency that had promulgated a definition like “mentally incompetent” that overlapped with the term “mental defective.”57 Veterans, Mental Incompetency, Firearms Eligibility In November 1998, the VBA provided the FBI with disqualifying records on 88,898 VA beneficiaries, whom VA rating specialists had determined to be “mentally incompetent” based on medical evidence that they were incapable of managing their own affairs.58 Thus, a fiduciary (or designated payee) was appointed for them. During the determination process, beneficiaries were notified that the VA was proposing to rate them “mentally incompetent,” and

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they were able to submit evidence to the contrary if they wished.59 This determination process is still followed today at the VA.60 Interestingly enough, the Veterans Medical Administration has not submitted any disqualifying records on VA beneficiaries to the FBI for inclusion in NICS for any medical/psychiatric reason (like PTSD), unless those veterans had been involuntarily committed under a state court order to a VA medical facility because they posed a danger to themselves or others. In those cases, the state in which the court resides would submit the disqualifying record to the FBI, if such a submission would be appropriate and permissible under state law.61 Nevertheless, the decision by the VA to submit VBA records on “mentally incompetent” veterans to the FBI for inclusion in the NICS mental defective file generated some degree of controversy in 1999 and 2000.62 Critics of this policy underscored that veterans routinely consented to mentally incompetent determinations so that a fiduciary (designated payee) could be appointed for them. Those critics contended that to take away a veteran’s Second Amendment rights without his foreknowledge was improper. They also pointed out that no other federal agencies were providing similar disqualifying records to the FBI. This controversy subsided, but it reemerged when Congress considered the NICS improvement amendments (described above). Also, as of April 30, 2008, VA records make up about one-fifth (or 2 1.0%) of all the 552,800 federal and state records in the NICS mental defective file. Senator Burr has introduced a bill, the Veterans 2nd Amendment Protection Act (S. 3167), that would achieve the same ends as his amendment to S. 2969.

Public Housing and Firearms Possession and Use On July 9, 2008, the House passed legislation that would make changes related to the administration of the public housing program (H.R. 6216). The public housing program is administered by the Department of Housing and Urban Development (HUD) through local public housing authorities (PHAs). The bill includes a provision that would prohibit the HUD Secretary from accepting as reasonable any management or related fees charged by a PHA for enforcing any provision of a lease agreement that requires tenants to register firearms that are otherwise legally possessed, or prohibits their possession


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outright. On the other hand, the bill would allow PHAs to terminate the lease of any tenant who was found illegally using a firearm. The gun-related provision in H.R. 6216 reportedly reflects a compromise.63 The original language restricting fees for enforcing gun restrictions was included in a motion to recommit offered during floor debate on a similar public housing bill (H.R. 3521). That bill was not approved by the House, but was sent back to the House Financial Services Committee for further consideration. A new version of the public housing bill (H.R. 5829) was introduced that included language from the motion to recommit, but it did not include the lease termination proviso, and the bill received no further consideration.

Public Lands and Firearms Possession and Use During consideration of a public land bill (S. 2483), Senator Coburn offered, but later withdrew, an amendment (S.Amdt. 3967) that would have overturned federal regulations that prohibit visitors to parks and wildlife refuges managed by the National Park Service (NPS)64 and Fish and Wildlife Service (FWS)65 from possessing operable and loaded firearms. While these regulations were last revised substantively in 1981 and 1983, similar firearm restrictions go back to the 1930s in an effort to curb poaching and other illegal activities. There are exceptions for hunting and marksmanship under current law. Since the 1 980s, however, many states have passed laws that allow persons to carry concealed handguns for personal protection. Although 48 states have “concealed carry” laws, only 24 of those states reportedly allow concealed handguns to be carried in state parks.66 On April 30, 2008, at the urging of pro-gun Members of Congress in part, the Department of Interior (DOI) published proposed regulations that would authorize the possession of loaded and concealed firearms, as long as carrying those firearms in that fashion would be legal under the laws of the states where the public lands are located.67 While the initial comment period was scheduled to end on June 30, 2008, it was extended until August 8, 2008.68 DOI reports receiving approximately 90,000 comments on those proposed regulations. Senator Coburn has also introduced a bill, the Protecting Americans from Violent Crime Act of 2008 (S. 2619), that is very similar to his proposed

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amendment and DOI’s proposed regulations. Supporters of those proposals point to a reported rise in illegal activities and violent crime on public lands. Opponents argue that the risk of a violent crime encounter in National Parks and Wildlife Refuges is negligible.69 They argue further that allowing others to carry loaded and concealed handguns on their person would make them less safe.

Law Enforcement Officers Safety Act of 2007 On September 5, 2007, the Senate Judiciary Committee reported the Law Enforcement Officers Safety Act of 2007 (S. 376; S.Rept. 110-150). This bill was introduced by Senator Leahy, Chair of the Judiciary Committee. Representative Forbes has introduced a similar bill (H.R. 2726). As described above, the language of S. 376 was incorporated into S. 2084 when that bill was reported on September 21, 2007 (S .Rept. 110-183). That language would amend the Law Enforcement Officers Safety Act (LEOSA, P.L. 108-277), which authorizes certain qualified active-duty and retired police officers to carry concealed firearms across state lines. The Senate-reported LEOSA amendments would (1) clarify that certain AMTRAK and executive branch law enforcement officers are eligible for concealed carry privileges under P.L. 108-277, (2) reduce the length of service criterium for eligibility under that law from 15 to 10 years, and (3) clarify other provisions of the law related to certification and credentialing. In the 109th Congress, the Senate amended H.R. 1751 with similar LEOSA provisions and passed that measure.

Tiahrt Amendment and Firearm Trace Data Limitations Representative Todd Tiahrt offered an amendment that placed several funding restrictions and conditions on ATF and the FBI during full committee markup of the FY2004 DOJ appropriations bill (H.R. 2799). While modified, those restrictions were included in the Consolidated Appropriations Act, 2004 (P.L. 108-199). The Tiahrt language:


•

•

•

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prohibits the use of any funding appropriated for ATF to disclose firearm trace or multiple handgun sales report data for any purpose other than supporting “bona fide” criminal investigation or agency licensing proceeding, prohibits the use of any funding appropriated for ATF to issue new regulations that would require licensed dealers to conduct physical inventories of their businesses, and requires the next-day destruction of approved Brady background check records.

Of these limitations, the first dealing with disclosure of firearm trace or multiple handgun sales report data is probably the most contentious. A coalition of U.S. mayors, including New York City Mayor, Michael Bloomberg, maintain that they should have access to such data in order to identify out-of-state federally licensed gun dealers who wittingly or unwittingly sell large numbers of firearms to illegal gun traffickers. Despite this opposition, Congress has subsequently included the Tiahrt language in DOJ appropriations measures for FY2005 through FY2008. For FY2008, the Tiahrt limitation on firearm trace and multiple handgun sales report data debate, when the Senate CJS Appropriations Subcommittee did not include this limitation in its draft bill. Senator Richard Shelby amended the FY2008 CJS appropriations bill (which became S. 1745) with similar, but modified, limitations in full committee markup. Similar language had been included in the House-passed CJS appropriations bill (H.R. 3093), and was included in the Consolidated Appropriations Act, 2008 (P.L. 110161; H.R. 2764), into which the CJS appropriations were folded.70 The modified FY2008 limitation includes new language that authorizes ATF to • • •

share firearms trace data with tribal and foreign law enforcement agencies and federal agencies for national intelligence purposes; share firearms trace data with law enforcement agencies and prosecutors to exchange among themselves; and release aggregate statistics on firearms traffickers and trafficking channels, or firearms misuse, felons, and trafficking investigations.

The FY2008 limitation, however, continues to prohibit the release of firearms trace data for the purposes of suing gun manufacturers and dealers.

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Moreover, the limitation includes the phrase, “in fiscal year 2008 and thereafter,” which makes the limitation permanent law according to the Government Accountability Office.71

Firearms Enforcement-Related Funding Bills The 1 10th Congress has considered legislation that either funds the ATF or authorizes increased appropriations for that law enforcement agency. ATF Appropriations for FY2008 and FY200972 The ATF enforces federal criminal law related to the manufacture, importation, and distribution of alcohol, tobacco, firearms, and explosives. ATF works both independently and through partnerships with industry groups, international, state and local governments, and other federal agencies to investigate and reduce crime involving firearms and explosives, acts of arson, and illegal trafficking of alcohol and tobacco products. From FY1999 to FY2008, Congress increased ATF appropriations from $541.6 million to nearly $1.008 billion, an increase of 86%. The FY2008 funding includes $984.1 million for salaries and expenses and $23.5 million for construction. For the same 10 years, with some fluctuation, ATF staffing increased from 3,969 to 4,880 full-time equivalent (FTE) positions, a 23% increase. Despite increased funding, the acting ATF Director, Michael Sullivan, recently testified before Congress that ATF is currently operating under a $37 million shortfall, as funding for ATF salaries and expenses was not increased for FY2008. Meanwhile, Congress has provided an additional $4 million in the Supplemental Appropriations Act, 2008 (P.L. 110-252) for ATF operations in Iraq. For FY2009, the Administration has requested $ 1.028 billion and 4,942 FTE positions for ATF salaries and expenses, or $44 million and 62 FTE positions more than the amounts appropriated for FY2008 ($984 million, not counting the $4 million supplemental). According to ATF, the FY2009 request would be allocated among ATF budget decision units in the following amounts: $740 million (72%) for firearms compliance and investigations, $267.2 million (26%) for arson and explosives investigations, and $20.6 million (2%) for alcohol and tobacco diversion. The House Appropriations Committee-approved draft FY2009 Commerce, Justice, Science, and Related


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Agencies (CJS) appropriations bill would provide $1 .054 billion million for ATF, $70 million (4.6%) more than the FY2008 enacted level and $26 million (2.6%) more than the FY2009 request. The Senate-reported bill (S. 3182) would provide $1.043 billion, $35 million (3.5%) more than the FY2008 enacted level and $15 million (1.5%) over the FY2009 request. Merida Initiative and Southwest Border Gun Trafficking On the Southwest border with Mexico, firearms violence has spiked sharply in recent years as drug trafficking organizations have reportedly vied for control of key smuggling corridors into the United States. In March 2008, President Felipe Calderón called on the United States to increase its efforts to suppress gun trafficking from the United States into Mexico. As part of the Merida Initiative,73 the House has passed a bill (H.R. 6028) that would authorize to be appropriated over three years, for FY2008 through FY20 10, a total of $73.5 million to increase ATF resources dedicated to stemming illegal gun trafficking into Mexico. Similar authorizations are included in S. 2867, H.R. 5863, and H.R. 5869.

LEGISLATIVE ACTION IN THE 109TH CONGRESS In the 1 09th Congress, gun control-related legislative action included (1) passage of two laws; (2) the approval of four bills by the House Judiciary committee, one of which the House passed; and (3) consideration of several amendments to, and provisions in, appropriations and crime legislation.

Enacted Legislation and Related Amendments Protection of Lawful Commerce in Arms Act The 109th Congress reconsidered and passed the Protection of Lawful Commerce in Arms Act (P.L. 109- 92).74 This legislation (S. 397) was very similar to a bill considered in the 108th Congress.75 P.L. 109-92 prohibits certain types of lawsuits against firearm manufacturers and dealers to recover damages related to the criminal or unlawful use of their products (firearms and ammunition) by other persons.76 The Senate passed S. 397 on July 29, 2005, by a recorded vote of 65-31 (Recorded Vote Number 219). The House

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Judiciary Committee had previously reported a similar bill (H.R. 800; H.Rept. 109-124) on June 14. The House considered and passed the Senate-passed bill (S. 397) by a recorded vote of 283-144 (Roll no. 534) on October 20, 2005. It is notable that several amendments passed by the Senate in the 108th Congress were also reconsidered and passed — for example, an amendment offered by Senator Herb Kohl requiring that a child safety lock be provided with newly transferred handguns, and another offered by Senator Larry Craig increasing penalties for using armor-piercing handgun ammunition in the commission of a crime of violence or drug trafficking. However, other amendments related to assault weapons or gun shows that were passed by the Senate in the previous Congress were not considered. It is notable that Housepassed legislation (H.R. 5672) included a provision that would have blocked implementation of the child safety lock provision sponsored by Senator Kohl. Child Safety Locks and Handguns As described above, P.L. 109-92 includes a provision that requires a child safety lock be provided with newly transferred handguns.77 The House passed an amendment, offered by Representative Marilyn Musgrave, to the FY2007 DOJ appropriations bill (H.R. 5672) that would have prohibited the expenditure of any funding provided under that bill for the purposes of enforcing the child safety lock provision in P.L. 109-92. The House passed H.R. 5672 on June 29, 2006. The Senate reported H.R. 5672, but no further actions was taken on that bill. Armor-Piercing Ammunition The “Armor Piercing Ammunition” Ban (P.L. 99-408, 1986, amended in P.L. 103-322, 1994) prohibits the manufacture, importation, and delivery of handgun ammunition composed of certain metal substances and certain fulljacketed ammunition. As described above, P.L. 109-92 includes provisions that (1) increase penalties for using armor-piercing handgun ammunition in the commission of a crime of violence or drug trafficking and (2) require the Attorney General to submit a report (within two years of enactment) on “armor-piercing” ammunition based on certain performance characteristics, including barrel length and amount of propellent (gun powder).


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Disaster Recovery Personal Protection Act of 2006 In the Department of Homeland Security Appropriations Act, 2007 (P.L. 109-295), Congress included a provision (§ 557) that amends the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. § 5207).78 This enacted provision prohibits federal officials from seizing or authorizing the seizure of any firearm from private persons during a major disaster or emergency, if possession of that firearm was not already prohibited under federal or state law. It also forbids the same officials from prohibiting the possession of any firearm that is not otherwise prohibited. Also, the law bans any prohibition on carrying firearms by persons who are otherwise permitted to legally carry such firearms, because those persons are working under a federal agency, or the control of an agency, providing disaster or emergency relief. Section 557 of P.L. 109-295 is very similar to bills (H.R. 5013/S. 2599) that were introduced by Representative Bobby Jindal and Senator David Vitter. Those bills addressed firearms seizures that occurred in New Orleans after Hurricane Katrina.79 On July 13, 2006, the Senate passed a related amendment, offered by Senator David Vitter, to the Department of Homeland Security appropriations bill (H.R. 5441) by a recorded vote of 68-32 (Record Vote Number 191), and the Senate passed that bill on the same day. On July 25, 2006, the House Committee on Transportation and Infrastructure ordered reported H.R. 5013 (H.Rept. 109-596), and the House passed that bill on the same day by a recorded vote of 322-99 (Roll no. 401). While H.R. 5013 received no further action, the language of the Vitter amendment was included in P.L. 109-295, as described above.80

House Judiciary Committee Considered Gun Bills The House Judiciary Crime, Terrorism and Homeland Security Subcommittee approved four firearms-related bills, which were subsequently considered by the full committee. Two of those bills were ordered reported. One was passed by the House. ATFE Modernization and Reform Act of 2006 H.R. 5092 was introduced by Representative Howard Coble, chair of the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security,

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and Representative Robert Scott, the subcommittee’s ranking Minority Member, on April 5, 2006. Among other things, the bill would have amended Gun Control Act provisions governing the suspension and revocation of federal licenses for firearms dealers, manufacturers, and importers by establishing a graduated scale of fines and penalties for administrative violations. For serious violations, however, revocation would have remained an option. It would have also barred ATF from initiating administrative enforcement actions for violations that are more than five years old, except for cases involved the intentional obstruction of discovery of such violations by the licensee. Proponents for this proposal argue that these provisions would allow federal firearms licensees greater opportunity to address non-substantive recordkeeping issues that under current law could have led to the revocation of their licenses. Opponents argue that relaxing such provisions would weakened ATF authority and efforts to reduce the number of “kitchen table top” dealers, who were not substantively engaged in the business and, hence, ineligible for such licenses. H.R. 5092 was approved by the Crime subcommittee on May 3, 2006. The House Judiciary Committee ordered this bill reported on September 7, and a written report was filed on September 21 (H.Rept. 109-672). The House passed this bill on September 26, 2006, by a recorded vote of 277-13 1 (Roll no. 476), but no further action was taken on this bill. ATF Operations at Richmond Area Gun Shows H.R. 5092 included provisions that would have required the DOJ’s Office of Inspector General to conduct a study of ATF firearms enforcement operations at gun shows and would have required the Attorney General to establish guidelines governing such future operations. The House Judiciary Crime subcommittee held two oversight hearings examining ATF firearms enforcement operations at guns shows in Richmond, Virginia, in 2005.81 ATF agents reportedly provided state and local law enforcement officers with confidential information from background check forms (ATF Form 4473s), so that those officers could perform residency checks on persons who had otherwise legally purchased firearms at those gun shows. Questions were also raised as to whether ATF agents had profiled gun purchasers at those gun shows on the basis of race, ethnicity, and gender. In addition, according to testimony heard from both gun show participants and organizers, as well as ATF officials, firearms were seized from some of


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the gun purchasers, and some of those seizures might have been illegal. ATF officials conceded that those Richmond area gun show operations “were not implemented in a manner consistent with ATF’s best practices,”82 and that guidance had subsequently been provided to ATF field offices on such matters. Firearms Corrections and Improvements Act H.R. 5005 was introduced by Representative Lamar Smith on March 16, 2006. It was the topic of a hearing held by the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security on March 28, 2006. This bill was approved by the subcommittee on May 18, 2006. The House Judiciary Committee began considering this bill on September 7 and ordered it reported on September 13, 2006. However, a written report was never filed, and no further action was taken on this bill. It is notable that H.R. 5005 included several provisions related to firearms trace data and multiple handgun sales reports that are opposed by mayors in several major cities.83 Codification of Firearms Trace Data Limitations84 Of the provisions in H.R. 5005, Section 9 was the most controversial. It would have codified limitations on the disclosure of firearms trace data and multiple handgun sales reports for any purpose other than a bona fide criminal investigation. Similar limitations were included in the ATF appropriations language since FY2004.85 Proponents for Section 9 contend that the business records of federal firearms licensees should be confidential. They argue that access to these records is only authorized under federal law for the purposes of conducting ATF trace requests in order to solve crimes. They argue further that it was never intended that firearm trace data should be used to support civil public nuisance lawsuits against firearms manufacturers and dealers, such as a lawsuit pursued by New York City.86 Opponents of Section 9, like Mayor Bloomberg, counter that every tool is needed to “crackdown” on irresponsible gun dealers by analyzing firearm trace data on a regional and national basis, so that federal, state, and local law enforcement authorities can be informed of the source and market areas for “crime guns.”87 They contend further that Section 9, if enacted, would have precluded such analysis. Senator Robert Menendez and Representative Steven R. Rothman introduced identical bills (S. 2460/H.R. 5033) to repeal the FY2006

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appropriations limitation on ATF sharing firearms trace data and multiple handgun sales reports. Senator Charles Schumer introduced a similar bill (S. 2629) and has reintroduced that bill (S. 77) in the 1 10th Congress. Multiple Handgun Sales Report Restrictions Regarding multiple handgun sales, section 7 of H.R. 5005 would have eliminated a provision that provides for the transfer of multiple handgun sale reports made by gun dealers to the Attorney General to state and local law enforcement authorities. Proponents argue that state and local authorities have mishandled such confidential records and often ignore certain certification requirements set out in the Gun Control Act. Opponents counter that those reports often lead to illegal gun traffickers and without them vital leads would go undiscovered. Gun Dealer Out-of-Business Records Section 8 of H.R. 5005 would have prohibited the Attorney General from electronically retrieving the records of gun dealers who had gone out of business by name or any personal identification. It is notable that “out-ofbusiness” records have been converted from paper to a digital format at the ATF National Tracing Center. Proponents argue that such a prohibition would protect the privacy of former federal firearms licensees, and that the prohibition would not extend to searches of those records by firearms serial number. Opponents counter that, if available, those records should be analyzed further to uncover wider patterns of gun trafficking and other illegal activities. Importation of Machine Gun Parts Kits and other Matters Section 3 of H.R. 5005 would have lifted restrictions on the possession, transfer, and importation of machine guns, and certain other shotguns and rifles, for contractors providing national security services to the United States government and training related to such services, and for manufacturers for test, research, design, and development purposes. Section 10 would have relaxed importation restrictions on barrels, frames, and receivers for firearms other than handguns for repair and replacement parts. Those proposals are generally supported by Class III gun dealers who are licensed under the National Firearms Act of 1934 to deal in machine guns and other destructive


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devices, which are more tightly regulated under federal law than other firearms. Codification of Brady Background Check Fee Prohibition Finally, section 5 of H.R. 5005 would have codified a limitation in the DOJ appropriations acts for the past eight years (FY1999 through FY2006) that prohibits the Attorney General from charging any tax or fee for any background check made for the purposes of determining firearms possession/transfer eligibility. In the 1 10th Congress, the House-passed H.R. 2640 and Senate-reported S. 2084 would also codify the background check fee prohibition. Firearm Commerce Modernization Act H.R. 1384 was introduced by Representative Phil Gingrey on March 17, 2005. This bill would have amended the Gun Control Act to allow federal firearms licensees to transfer any firearm to out-of- state residents as long as those transfers complied with the laws of both states, that is, the laws of the state in which the licensee’s business was located and the laws of the state in which the licensee’s customer resided. Under current law, licensees are permitted to transfer long guns to out-of-state residents only if such transfers are made in person (face-to-face). H.R. 1384 would have allowed federal firearms licensees to transfer handguns to out-of-state residents as well. In addition, H.R. 1384 would have allowed federal firearms licensees to transfer any firearm to other federal firearms licensees at out-of-state gun shows or similar events as long as those transfers complied with the laws of both states. Under current law, federal firearms licensees are permitted to display and take orders for firearms at out-of-state gun shows, but they must return to their business locations to initiate the subsequent transfers of those firearms. Proponents argue that this proposal would eliminate federal requirements on shipping such firearms interstate and reduce the risk that such firearms would be stolen during shipment. Opponents counter that relaxing existing federal requirements regarding the interstate transfer of handguns could necessitate dual-state background checks. In addition, in the view of the proposals’s opponents, the relaxation of these requirements could be exploited by illegal firearms traffickers. H.R. 1384 was approved in subcommittee markup on May 18, 2006, but no further action was taken on this bill.

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NICS Improvement Act of 2005 H.R. 1415 was introduced by Representative Carolyn McCarthy and cosponsored by Representative John Dingell. Among other things, this proposal would have (1) amended the Brady Handgun Violence Prevention Act to require federal agencies to provide, and the Attorney General to secure, any government records with information relevant to determining the eligibility of a person to receive a firearm for inclusion in NICS; (2) established incentives to states to make available to the Attorney General certain records that would disqualify persons from acquiring a firearm, particularly those records that relate to convictions for misdemeanor crimes of domestic violence and persons adjudicated as mentally defective; and (3) authorized appropriations for grant programs to help states, courts, and local governments establish or improve such automated record systems. H.R. 1415 was approved in subcommittee markup on May 18, 2006, but no further action was taken on this bill.88 Representative McCarthy reintroduced this bill (H.R. 297) in the 1 10th Congress. As described above, a modified bill (H.R. 2640) was introduced and passed by the House on June 13, 2007. Congress passed this bill, and it was enacted (P.L. 110-180).

Gun Provisions Attached to Funding and Crime Bills Gun control-related provisions were either included in, or amended to, appropriations and crime legislation in the 109th Congress. District of Columbia Handgun Ban Representative Souder reintroduced a bill to overturn the District of Columbia (DC) handgun ban (H.R. 1288), which was previously passed by the House.89 Senator Hutchison introduced a companion measure (S. 1082). In addition, during consideration of the FY2006 DC appropriations bill (H.R. 3058), the House passed an amendment offered by Representative Mark Souder that would have prohibited the use of funding provided under that bill to enforce the DC code’s trigger lock requirement on June 30, 2005, by a recorded vote: 259-161, 1 present (Roll no. 349). Although there was some support in the Senate for including a similar provision in the funding bill considered by that body, such a provision was not included in P.L. 109-115,


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the omnibus funding measure into which the FY2006 DC appropriations bill was folded. Sex Offenders and Firearm Possession Eligibility The Children’s Safety Act of 2005 (H.R. 3132) was amended on September 14, 2005, to include a provision that would have prohibited the transfer or possession of a firearm to or by a person convicted of a sex offense against a minor. This amendment was offered by Representative Jerrold Nadler. H.R. 3132 was passed by the House on the same date, but no further action was taken on this bill. During consideration of H.R. 5005, however, the House Judiciary Committee amended that bill with language of the Nadler amendment. Court Security and LEOSA Amendments The House-passed Secure Access to Justice and Court Protection Act of 2005 (H.R. 1751) was amended on November 9, 2005, by Representative Steve King to include a provision that would have authorized any federal judge, magistrate, U.S. Attorney, or any DOJ officer who represents the United States in a court of law to carry firearms for self-defense. Similar provisions were included in the House-passed Adam Walsh Child Protection Act of 2006 (H.R. 4472), but they were not included in the Senate-passed version of this bill, which was subsequently passed in the House and signed into law by the President (P.L. 109-248). Representative Phil English introduced a similar bill (H.R. 4477) as well. The Senate, in turn, amended H.R. 1751 with an amendment in the nature of a substitute, and passed that bill on December 6, 2006. The Senate-passed version included similar provisions regarding firearms and federal judicial officials, as well as amendments to the Law Enforcement Officers Safety Act (LEOSA, P.L. 108-277) that would have clarified and expanded this law, which gives concealed carry privileges to qualified on-duty and retired law enforcement officers. Other House- passed provisions, however, related to mandatory minimum sentences and the death penalty were not included in the Senate bill, and no further action was taken on H.R. 1751. In the 1 10th Congress, as described above, similar provisions that would authorize certain federal judicial officials to carry firearms for self-defense were not included in the Senate-passed court security bill (S. 378), nor were they included in the House-passed bill (H.R. 660). Regarding LEOSA,

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however, Senator Leahy has included amendments to that Act in a stand-alone measure (S. 376), which was reported by the Judiciary Committee (S.Rept. 110-150) on September 5, 2007. The provisions of S. 376 were also folded into S. 2084 in the reported version of that bill (S.Rept. 110-183). ATF Appropriations for FY2005, FY2006, and FY2007 For FY2005, Congress appropriated $882 million for ATF (P.L. 108-447; P.L. 109-13). According to DOJ, this amount funded 5,073 positions, including 2,446 agents and 785 industry operations investigators and industry operations specialists, as well as 1,842 other positions. For FY2006, Congress appropriated nearly $936 million for ATF. This amount reflects certain department- and government-wide rescissions in P.L. 109-108 and P.L. 109148, as well as supplemental appropriations. This amount funded 5,128 positions, including 2,509 agents and 797 industry operations investigators and industry operations specialists, as well as 1,822 other positions. For FY2007, the Administration requested $860 million for ATF; Congress provided $984 million in the FY2007 Continuing Resolution (P.L. 110-5). This amount is anticipated to fund 5,148 positions, including 2,502 agents and 797 industry operations investigators and specialists, as well as 1,849 other positions. For FY2008, the Administration’s request includes $1.0 14 billion and 5,032 positions for ATF (a net reduction of 116 positions, compared with FY2007). The Senate-passed CJS appropriations bill (S. 1745) includes $1.049 billion for ATF’s FY2008 appropriation, an increase of $35 million over the Administration’s budget request and $65 million more than the FY2007 appropriation. The House-passed CJS appropriations bill (H.R. 3093) would provide the same amount as requested by the President, $30 million more than the FY2007 appropriation. Proposed Explosives User Fee The Administration’s FY2007 request was based on a legislative proposal that would have authorized an explosives user fee for criminal background checks required under the Safe Explosives Act (P.L. 107- 296). The Administration projected that this fee would have generated $120 million in off-setting receipts in FY2007 for ATF. The House-passed DOJ appropriations bill (H.R. 5672; H.Rept. 109-520) would have provided $950 million. The Senate- reported bill (H.R. 5672; S.Rept. 109-280) would have provided $985 million. The House bill included a provision that would have


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authorized an explosives fee that was projected to generate $30 million in offsetting receipts. The Senate bill did not include a similar provision. No final action was taken on H.R. 5672, and no provision was included in the FY2007 Continuing Resolution for such a fee. Furthermore, the Administration’s FY2008 request did not call for such a fee. ATF Authorizations for Appropriations In the Violence Against Women and Department of Justice Reauthorization Act of 2005 (P.L. 109-162), Congress authorized to be appropriated for ATF the following amounts: $924 million for FY2006, $961 million for FY2007, $999 million for FY2008, and $1 .039 billion for FY2009. Also, on May 11, 2005, the Gang Deterrence and Community Protection Act of 2005 (H.R. 1279) was amended with a provision offered by Representative Diane Watson that would have authorized additional appropriations to hire 100 agents and 100 inspectors at ATF to be assigned to new “High-Intensity Gang Activity Areas.” The House subsequently passed H.R. 1279, but no further action was taken on this bill.

OTHER SALIENT GUN CONTROL LEGISLATIVE ISSUES Other salient firearm-related issues that continue to receive attention include (1) retaining Brady background check records for approved firearm transactions to enhance terrorist screening, (2) more strictly regulating certain long-range .50 caliber rifles, (3) further regulating certain firearms previously defined in statute as “assault weapons,” and (4) requiring background checks for private firearm transfers at gun shows.

Brady Background Checks and Terrorist Watch Lists90 Background Check Fee and Record Retention Beginning in FY1999, Congress has prohibited the collection of any fee for firearms-related background checks made through the FBI-administered NICS in DOJ appropriations.91 Beginning in FY2004, that provision also included language (originally added by the Tiahrt amendment) to require the next-day destruction of approved background check records. The issue of

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approved Brady background check record retention has been contentious since the inception of the FBI-administered NICS, because a provision in the Brady Act (§ 103(i)) prohibits the establishment of any electronic registry of firearms, firearm owners, or approved firearm transactions and dispositions. Nevertheless, under Attorney General Janet Reno, DOJ proposed a rule that would have allowed such records to be maintained for up to six months for audit purposes on October 30, 1998.92 The NRA challenged this proposed rule in federal court, arguing that retaining the approved records was tantamount to a temporary registry. On July 11, 2000, the United States Court of Appeals for the District of Columbia found that nothing in the Brady Act prohibited the temporary retention of information about lawful firearm transfers for certain audit purposes.93 On January 22, 2001, DOJ promulgated a final rule that allowed such records to maintained for up to 90 days.94 Attorney General John Ashcroft opposed this rule, however, and DOJ proposed another rule that called for the next-day destruction of those files on July 6, 2001.95 In July 2002, meanwhile, GAO reported that under Attorney General Reno, the FBI had conducted “nonroutine” searches of the NICS audit log for law enforcement agencies to determine whether a person, whom subsequent information showed was a prohibited person, had been transferred a firearm within the previous 90 days. The FBI informed GAO that such searches were routinely conducted but were a “secondary benefit” given that the audit log was maintained primarily to check for system “accuracy, privacy, and performance.” In addition, GAO reported that the next-day destruction of records would “adversely affect” other NICS operations, including firearmretrieval actions, NICS audit log checks for previous background checks, verifications of NICS determinations for federal firearms licensees, and ATF inspections of federal firearms licensees’ record keeping.96 Despite those adverse affects, opponents of greater federal gun control viewed the non-routine use of NICS records as beyond the scope of authority given the Attorney General under the Brady Act. As described below, GAO reported that DOJ took steps to minimize the adverse affects of the next-day destruction of those records, but in the wake of the September 11, 2001, terrorist attacks, additional issues regarding Brady background checks emerged.


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Terrorist Watch List Checks Historically, terrorist watch list checks were not part of the Brady background check process, because being a suspected or known terrorist was and is not a disqualifying factor for firearm transfer/possession eligibility under federal or state law. As is the case today, to determine such eligibility, FBI-NICS examiners check three databases maintained by the FBI. They include the National Crime Information Center (NCIC), the Interstate Identification Index (III), and the NICS index. The NICS index includes disqualifying records on persons (1) dishonorably discharged from the armed forces, (2) adjudicated mentally defective, or (3) convicted of certain serious immigration violations. The III includes criminal history records for persons arrested and convicted of felonies and misdemeanors. The NCIC includes law enforcement hot files on fugitives and persons subject to restraining orders, among other persons. NCIC also includes a “hot file” known as the Violent Gang and Terrorist Offender File (VGTOF). Prior to the 9/11 attacks, this file included limited information on known or suspected terrorists and gang members. NICS examiners were not informed of VGTOF hits, as such information was not considered relevant to determining firearms transfer/possession eligibility. Following the 9/11 attacks, FBI officials reportedly searched approved firearm transaction records in the then NICS 90-day audit log for 186 illegal alien detainees. Two were found to have been improperly cleared to be transferred firearms.97 Upon learning of this practice, however, then Attorney General Ashcroft barred the FBI from searching the NICS audit log, maintaining that the Brady Act prohibited the use of NICS as an electronic registry of firearms, dispositions, or owners.98 Advocates of greater gun control opposed this shift in policy, arguing that law enforcement and counterterrorism officials ought to have access to NICS records to further ongoing terrorist and criminal investigations. As described above, however, gun rights advocates successfully amended the FY2004 Justice appropriations to require the destruction of those records within 24 hours. A similar requirement was enacted for FY2005 and FY2006 as well. It was also been included in the House-passed and Senate-reported versions of the FY2007 DOJ appropriations bill (H.R. 5672). In February 2002, DOJ initiated a NICS transaction audit to determine whether prohibited aliens (non-citizens) were being improperly transferred

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firearms. As part of this audit, NICS procedures were changed, so that NICS examiners were informed of VGTOF hits. Under Homeland Security Presidential Directive 6, moreover, the Administration initiated a broad-based review of the use of watch lists, among other terrorist identification and screening mechanisms.99 In September 2003, the FBI- administered Terrorist Screening Center (TSC) was established and work was begun to improve and merge several watch lists maintained by U.S. government into a consolidated Terrorist Screening Database (TSDB). One of these “watch lists” was VGTOF. As part of those efforts, TSDB lookout records from other agency watch lists were downloaded into VGTOF, growing that file from 10,000 to more than 140,000 records. Effective February 2004, the FBI officially changed its NICS operating procedures to inform NICS examiners of VGTOF hits for known and suspected terrorists.100 Under the new procedures in non-Point of Contact (non-POC) states, NICS staff validate terrorism-related VGTOF hits by contacting TSC staff. The latter have greater access to identifiers in terrorist files, with which known and suspected terrorists can be more positively identified. In full and partial POC states, the law enforcement officials that conduct firearms-related background checks under the Brady Act contact TSC staff directly. In the case of valid hits, NICS staff delay the transactions for up to three business days and contact the FBI Counterterrorism Division to allow field agents to check for prohibiting factors. If no prohibiting factors are uncovered within this three-day period, NICS staff anonymize the transaction record by deleting the subject’s identifying information. The firearms dealers may proceed with the transaction at their discretion, but FBI counterterrorism officials continue to work the case for up to 90 days. If they learn of a prohibiting factor within that 90-day period, they are able to contact the NICS unit and deanonymize the transaction record by filling in the subject’s identifying fields. At the end of 90 days, if no prohibiting factor has been found, all records related to the NICS transaction are destroyed. Senators Joseph Biden and Frank Lautenberg requested that GAO report on these new NICS operating procedures.101 In January 2005, GAO reported that in a five-month period — February 3, 2004 through June 30, 2004 — NICS checks resulted in an estimated 650 terrorist-related record hits in VGTOF. Of these, 44 were found to be valid. As noted above, however, being identified as a known or suspected terrorist is not grounds to prohibit a person from being transferred a firearm under current law. As a consequence, 35 of


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these transactions were allowed to proceed, 6 were denied, one was unresolved, and 2 were of an unknown status.102 GAO recommended that the Attorney General should (1) clarify what information generated by the Brady background check process could be shared with counterterrorism officials and (2) either more frequently monitor background checks conducted by full and partial POC States that result in terrorism-related VGTOF hits, or allow the FBI to handle such cases.103 Several related pieces of legislation were introduced that are related to NICS operations and terrorist watch lists. The Terrorist Apprehension and Record Retention Act of 2005 (S. 578/H.R. 1225), introduced by Senator Lautenberg and Representative John Conyers, would have required that the FBI, along with appropriate federal and state counterterrorism officials, be notified immediately when the NICS indicated that a person seeking to obtain a firearm was a known or suspected terrorist. Furthermore, the proposal would have (1) required that the FBI coordinate the response to such occurrences, (2) authorized the retention of all related records for at least 10 years, and (3) allowed federal and state officials access to such records. In addition, Representative Peter King introduced H.R. 1168, a bill that would have required the Attorney General to promulgate regulations to preserve records of terrorist- and gang-related record hits during such background checks until they were provided to the FBI. Representative Carolyn McCarthy introduced H.R. 1195, a bill that would have made it unlawful for anyone to transfer a firearm to a person who was on the “No Fly” lists maintained by the Transportation Security Administration. In the 1 10th Congress, Representative McCarthy has reintroduced this measure (H.R. 1167). Also, Senator Lautenberg has introduced a bill (S. 1237) that would authorize the Attorney General to deny the transfer of firearms or the issuance of firearms and explosives licenses to known or suspect terrorists. The language of S. 1237 reportedly reflects a legislative proposal made by the Department of Justice.104 Representative King has introduced an identical measure (H.R. 2074). More recently, Senator Lautenberg has introduced a separate measure (S. 2935) that would authorize the Attorney General to retain firearm transfer records on persons who are suspected terrorists or their supporters, but who have been transferred a firearm.

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Long-Range .50 Caliber Rifles105 In the 1 09th Congress, legislation was introduced to regulate more strictly certain .50 caliber rifles. Some of these rifles are chambered to fire a relatively large round originally designed for the Browning Machine Gun (BMG) and have been adopted by the U.S. military as long-range “sniper” rifles. Gun control advocates argue that these firearms have little sporting, hunting, or recreational purpose. They maintain that these rifles could be used to shoot down aircraft, rupture pressurized chemical tanks, or penetrate armored personnel carriers. Gun control opponents counter that these rifles are expensive, cumbersome, and rarely, if ever, used in crime. Furthermore, they maintain that these rifles were first developed for long-range marksmanship competitions and then adopted by the military as sniper rifles. The Fifty Caliber Sniper Weapons Regulation Act of 2005 (S. 935), introduced by Senator Dianne Feinstein, would have amended the National Firearms Act (NFA)106 to regulate “.50 caliber sniper weapons” in the same fashion as short- barreled shotguns and silencers, by levying taxes on the manufacture and transfer of such firearms and by requiring owner and firearm registration. In the 1 10th Congress, Senator Feinstein has introduced a similar measure (S. 1331). The other proposal introduced by Representative James Moran, the 50 Caliber Sniper Rifle Reduction Act (H.R. 654), would have also amended the NFA to include those weapons but would have also amended the Gun Control Act107 to effectively freeze the population of those weapons legally available to private persons and to prohibit any further transfer of those firearms. In other words, H.R. 654 would have grandfathered in existing rifles but would have banned their further transfer. Consequently, the proposal would have eventually eliminated those rifles all together from the civilian gun stock. It would have been likely that covered .50 caliber rifles would have had to be destroyed or handed over to the ATF as contraband when the legal firearm owner died or wanted to give up the firearm. H.R. 654 included no compensation provision for rifles destroyed or handed over to the federal government. Furthermore, both proposals (S. 935 and H.R. 654) would have defined “.50 caliber sniper weapon” to mean “a rifle capable of firing center-fire cartridge in .50 caliber, .50 BMG caliber, any other variant of .50 caliber or any metric equivalent of such calibers.” Many rifles, and even some handguns,


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are chambered to fire .50 caliber ammunition, meaning the projectile is about one-half inch in diameter. Opponents of this legislation note that this definition was very broad and would have likely covered .50 caliber rifles that would not be considered “long-range” or “sniper” rifles. The .50 BMG caliber round, on the other hand, is an exceptionally large cartridge (projectile and casing), which was once used almost exclusively as a heavy machine gun round. Representative Moran also offered an amendment to the FY2006 Department of Commerce appropriations bill (H.R. 2862) that would have prohibited the use of funding provided under that bill to process licenses to export .50 caliber rifles, but that amendment was not adopted by the House.

Expired Semiautomatic Assault Weapons Ban In 1994, Congress banned for 10 years the possession, transfer, or further domestic manufacture of semiautomatic assault weapons (SAWs) and large capacity ammunition feeding devices (LCAFDs) that hold more than 10 rounds that were not legally owned or available prior to the date of enactment (September 13, 1994). The SAW-LCAFD ban expired on September 13, 2004. Assault rifles were originally developed to provide a lighter infantry weapon that could fire more rounds, more rapidly (increased capacity and rate of fire). To increase capacity of fire, detachable, self-feeding magazines were developed. These rifles were usually designed to be fired in fully automatic mode, meaning that once the trigger is pulled, the weapon continues to fire rapidly until all the rounds in the magazine are expended, or the trigger is released. Often these rifles were also designed with a “select fire” feature that allowed them to be fired in short bursts (e.g., three rounds per pull of the trigger), or in semiautomatic mode (i.e., one round per pull of the trigger), as well as in fully automatic mode. Semiautomatic firearms by comparison, including semiautomatic assault weapons, fire one round per pull of the trigger. Under current law, any firearm, including “assault weapons,” that can be fired in fully automatic mode or in multi-round bursts is classified as a “machine gun” and must be registered with the federal government under the National Firearms Act of 1934. Furthermore, it is illegal to assemble a machine gun with legally or illegally obtained parts. The population of legally owned machine guns has been frozen since 1986, and they were not covered

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by the semiautomatic assault weapons ban. According to a 1997 survey of 203,300 state and federal prisoners who had been armed during the commission of the crimes for which they were incarcerated, fewer than 1 in 50, or less than 2%, used, carried, or possessed a fully automatic or semiautomatic assault weapon.108 The statute classified a rifle as a semiautomatic assault weapon if it was able to accept a detachable magazine and included two or more of the following five characteristics: (1) a folding or telescoping stock, (2) a pistol grip, (3) a bayonet mount, (4) a muzzle flash suppressor or threaded barrel capable of accepting such a suppressor, or (5) a grenade launcher.109 There were similar definitions for pistols and shotguns that were classified as semiautomatic assault weapons.110 Semiautomatic assault weapons that were legally owned prior to the ban were not restricted and remained available for transfer under applicable federal and state laws. Opponents of the ban argue that the statutorily defined characteristics of a semiautomatic assault weapon were largely cosmetic, and that these weapons were potentially no more lethal than other semiautomatic firearms that were designed to accept a detachable magazine and were equal or superior in terms of ballistics and other performance characteristics. Proponents of the ban argue that semiautomatic military-style firearms, particularly those capable of accepting large capacity ammunition feeding devices, had and have no place in the civilian gun stock. In the 108th Congress, proposals were introduced to extend or make permanent the ban, whereas other proposals were made to modify the definition of “semiautomatic assault weapon” to cover a greater number of firearms by reducing the number of features that would constitute such firearms, and expand the list of certain makes and models of firearms that are statutorily enumerated as banned. A proposal (S. 1034) introduced by Senator Dianne Feinstein would have made the ban permanent, as would have a proposal (H.R. 2038/S. 1431) introduced by Representative Carolyn McCarthy and Senator Frank Lautenberg. The latter measure, however, would have modified the definition and expanded the list of banned weapons. Senator Feinstein also introduced measures that would have extended the ban for 10 years (S. 2109/S. 2498). In addition, on March 2, 2004, the Senate passed an amendment to the gun industry liability bill (S. 1805) that would have extended the ban for 10 years, but the Senate did not pass this bill.111 In the 1 09th Congress, Senator Dianne Feinstein introduced a bill that would


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have reinstated previous law for 10 years (S. 620). Representative McCarthy and Senator Lautenberg reintroduced their bills to make the ban permanent (H.R. 1312/S. 645). In the 1 10th Congress, Representative McCarthy has reintroduced a similar proposal (H.R. 1022) and another measure (H.R. 1859) that would prohibit the transfer of a semiautomatic assault weapon with a large capacity ammunition feeding device, among other things. Representative Mark Steven Kirk has introduced the Assault Weapons Ban Reauthorization Act of 2008 (H.R. 6257). Senator Biden has included provisions to reauthorize the ban in the Crime Control and Prevention Act of 2007 (S. 2237).

Gun Shows and Private Firearm Transfers Federal law does not regulate gun shows specifically. Federal law regulating firearm transfers, however, is applicable to such transfers at gun shows. Federal firearms licensees — those licensed by the federal government to manufacture, import, or deal in firearms — are required to conduct background checks on nonlicensed persons seeking to obtain firearms from them, by purchase or exchange. Conversely, nonlicensed persons — those persons who transfer firearms, but who do not meet the statutory test of being “engaged in the business” — are not required to conduct such checks. To some, this may appear to be an incongruity in the law. Why, they ask, should licensees be required to conduct background checks at gun shows, and not nonlicensees? To others, opposed to further federal regulation of firearms, it may appear to be a continuance of the status quo (i.e., non-interference by the federal government into private firearm transfers within state lines). On the other hand, those seeking to increase federal regulation of firearms may view the absence of background checks for firearm transfers between nonlicensed/private persons as a “loophole” in the law that needs to be closed. A possible issue for Congress is whether federal regulation of firearms should be expanded to include private firearm transfers at gun shows and other similar venues. Among gun show-related proposals, there are two basic models. The first model is based on a bill (S. 443) that was introduced in the 106th Congress by Senator Lautenberg, who successfully offered this proposal as an amendment to the Senate- passed Violent and Repeat Juvenile Offender Act (S. 254).

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Several members introduced variations of the Lautenberg bill in the 107th Congress. In the 108th Congress, Representative Conyers — ranking minority member of the Judiciary Committee — introduced H.R. 260, which was very similar to the Lautenberg bill. In addition, former Senator Daschle introduced the Justice Enhancement and Domestic Security Act of 2003 (S. 22), which included gun show language that was similar to the Lautenberg bill. The second model is based on a bill (S. 890) introduced in the 107th Congress by Senators McCain and Lieberman. In the 108th Congress, Senators McCain and Reed introduced a bill (S. 1807), which was similar to S. 890. In the 1 08th Congress, on March 2, 2004, the Senate passed an amendment offered by Senator McCain to the gun industry liability bill (S. 1805) that would have required background checks for private firearm transfers at gun shows, but the Senate did not pass this bill.112 In the 109th and 1 10th Congresses, Representative Michael Castle reintroduced this bill as the Gun Show Loophole Closing Act of 2005 (H.R. 3540 and H.R. 96). Senator Lautenberg has reintroduced his gun show proposal as the Gun Show Background Check Act 2008 (S. 2577). Previously, Senator Biden had included similar provisions in the Crime Control and Prevention Act of 2007 (S. 2237).

APPENDIX. MAJOR FEDERAL FIREARM AND RELATED STATUTES The following principal changes have been enacted to the Gun Control Act since 1968. •

•

The Firearms Owners Protection Act, McClure-Volkmer Amendments (P.L. 99-308, 1986), eases certain interstate transfer and shipment requirements for long guns, defines the term “engaged in the business,” eliminates some record-keeping requirements, and bans the private possession of machine guns not legally owned prior to 1986. The Armor Piercing Ammunition Ban (P.L. 99-408, 1986, amended in P.L. 103-322, 1994) prohibits the manufacture, importation and delivery of handgun ammunition composed of certain metal substances and certain full-jacketed ammunition.


•

•

•

•

•

•

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The Federal Energy Management Improvement Act of 1988 (P.L. 100-615) requires that all toys or firearm look-a-likes have a blazed orange plug in the barrel, denoting that it is a non-lethal imitation. The Undetectable Firearms Act (P.L. 100-649, 1988, amended by P.L. 108-174, 2003), also known as the “plastic gun” legislation, bans the manufacture, import, possession, and transfer of firearms not detectable by security devices. The Gun-Free School Zone Act of 1990 (P.L. 10 1-647), as originally enacted, was ruled unconstitutional by the U.S. Supreme Court (United States v. Lopez, 514 U.S. 549 [1995], April 26, 1995). The Act prohibited possession of a firearm in a school zone (on the campus of a public or private school or within 1,000 feet of the grounds). In response to the Court’s finding that the Act exceeded Congress’s authority to regulate commerce, the 104th Congress included a provision in P.L. 104-208 that amended the Act to require federal prosecutors to include evidence that the firearms “moved in” or affected interstate commerce. The Brady Handgun Violence Prevention Act, 1993 (P.L. 103-159), requires that background checks be completed on all nonlicensed person seeking to obtain firearms from federal firearms licensees. The Violent Crime Control and Law Enforcement Act of 1994 (P.L. 103-322) prohibited the manufacture or importation of semiautomatic assault weapons and large capacity ammunition feeding devices for 10 years. The Act also bans the sale or transfer of handguns and handgun ammunition to, or possession of handguns and handgun ammunition, by juveniles (younger than 18 years old) without prior written consent from the juvenile’s parent or legal guardian; exceptions related to employment, ranching, farming, target practice, and hunting are provided. In addition, the Act disqualifies persons under court orders related to domestic abuse from receiving a firearm from any person or possessing a firearm. It also increased penalties for the criminal use of firearms. The assault weapons ban expired on September 13, 2004. Federal Domestic Violence Gun Ban (the Lautenberg Amendment, in the Omnibus Consolidated Appropriations Act for FY1997, P.L. 104208) prohibits persons convicted of misdemeanor crimes of domestic violence from possessing firearms and ammunition. The ban applies regardless of when the offense was adjudicated: prior to, or following

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•

•

•

•

enactment. It has been challenged in the federal courts, but these challenges have been defeated.113 The Omnibus Consolidated and Emergency Appropriations Act, 1999 (P.L. 105-277), requires all federal firearms licensees to offer for sale gun storage and safety devices. It also bans firearm transfers to, or possession by, most nonimmigrants, and those nonimmigrants who have overstayed the terms of their temporary visa. The Treasury, Postal and General Government Appropriations Act (P.L. 106-58) requires that background checks be conducted when former firearm owners seek to redeem a firearm that they sold to a pawnshop. The Homeland Security Act of 2002 (P.L. 107-296) establishes a Bureau of Alcohol, Tobacco, Firearms and Explosives by transferring the law enforcement functions, but not the revenue functions, of the former Bureau of Alcohol, Tobacco and Firearms from the Department of the Treasury to the Department of Justice. Law Enforcement Officers Safety Act of 2004 (P.L. 108-277) provides that qualified active and retired law enforcement officers may carry a concealed firearm. This Act supersedes state level prohibitions on concealed carry that would otherwise apply to law enforcement officers, but it does not override any federal laws. Nor does the Act supersede or limit state laws that permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property or prohibit or restrict the possession of firearms on any state or local government property, installation, building, base, or park.

ENDNOTES 1

For legal analysis, see CRS Report RL34446, District of Columbia v. Heller: The Supreme Court and the Second Amendment, by T. J. Halstead. 2 National Research Council, Firearms and Violence: A Critical Review (Washington, 2005), p. 48. 3 Ibid., p. 49.

Gun Control Legislation 4

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Jens Ludwig and Phillip J. Cook, Guns in America: National Survey on Private Ownership and Use of Firearms, NCJ 165476, May 1999, 12 pp., available at [http://www.ncjrs.org/ pdffiles/165476.pdf]. 5 Ibid. 6 U.S. Department of the Treasury, Bureau of Alcohol, Tobacco & Firearms, Commerce in Firearms in the United States, February 2000, pp. A3-A5. 7 Ibid., pp. A3-A5. 8 U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Firearms Commerce in the United States 2001/2002, ATF P 9000.4, April 2002, pp. E1-E3. 9 Ibid., pp. E1-E3. 10 Ibid. 11 Ned Schwing, 2005 Standard Catalog of Firearms: The Collector’s Price and Reference Guide, 15th edition (Iola, Wisconsin, 2005), 1,504 pp. 12 Christopher S. Koper, Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003 (Washington, July 2004), 108 pp. 13 Go to [http://www.fbi.gov/ucr/ucr.htm]. 14 U.S. Department of Justice, Bureau of Justice Statistics, National Crime Victimization Survey, Criminal Victimization, 2003, by Shannan M. Catalano, available online at [http://www.ojp.usdoj .gov/bj s/pub/pdf/cv03 .pdf]. 15 U.S. Department of Justice, Bureau of Justice Statistics, Homicide Trends in the United States, by James Alan Fox and Marianne W. Zawitz, at [http://www.ojp.usdoj.gov/bjs/ homicide/teens.htm]. 16 For further information, see CRS Report RL30482, The Safe and Drug-Free Schools and Communities Program: Background and Context, by Edith Fairman Cooper. 17 “Legal interventions” include deaths (in these cases by firearms) that involve legal uses of force (justifiable homicide or manslaughter) usually by the police. 18 National Vital Statistics System data taken from the Injury Statistics Query and Reporting System (WISQARS), available at [http://www.cdc.gov /ncipc/wisqars/default.htm]. 19 Ibid. 20 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Guns and Crime: Handgun Victimization, Firearm Self

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Defense, and Firearm Theft, NCJ-147003, April 1994, available at [http://www.ojp.usdoj .gov/bj s/pub/ascii/hvfsdaft.txt]. 21 Ibid. 22 Gary Kleck, “Armed Resistance to Crime: The Prevalence and Nature of Self Defense with a Gun,” Journal of Criminal Law and Criminology, vol. 86, issue 1, 1995, available at [http://www.guncite.com/gcdgklec.html]. 23 Jens Ludwig and Phillip J. Cook, Guns in America: National Survey on Private Ownership and Use of Firearms, NCJ 165476, May 1999, p. 2. 24 Ibid., p. 3. 25 U.S. Department of the Interior, U.S. Fish and Wildlife Service, National Hunting License Report (December 2, 2004), [http://www.nssf.org/ IndustryResearch/PDF/CurrLicSales.pdf]. 26 American Sports Data, Inc., The SUPERSTUDY of Sports Participation, available at [http://www.nssf.org/IndustryResearch/PDF/HistTrends Participation.pdf]. 27 For further information, see CRS Report RS20957, Internet Firearm Sales, by T.J. Halstead. 28 107 Stat. 1536, November 30, 1993. 29 For further information, see GAO, Gun Control: Opportunities to Close Loopholes in the National Instant Criminal Background Check System, GAO-02-720, July 2002, p. 27. 30 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Background Checks for Firearm Transfers, 2005, November 2004, p. 1. 31 Ibid. 32 Ibid. 33 Ibid., p. 2. 34 Ibid. 35 Ibid. 36 Ibid. 37 Ibid. 38 For further information, see GAO, Gun Control: Implementation of the National Instant Criminal Background Check System, GGD/AIMD-00-64, p. 68. (Hereafter cited as GAO, Implementation of NICS.) 39 See National Instant Criminal Background Check System (NICS): 2001/2002 Operational Report, May 2003, p. 8. (Hereafter cited as NICS 2001/2002 Operational Report.)


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See GAO, Implementation of NICS, p. 94. See NICS 2001/2002 Operational Report, p. 6. 42 For legal analysis, see CRS Report RL34446, District of Columbia v. Heller: The Supreme Court and the Second Amendment, by T. J. Halstead. 43 Under the Home Rule Act (P.L. 93-198), Congress has reserved for itself the authority to legislate for the District. 44 Keith Perine and Seth Stern, “House Democrats Plan Vote To Roll Back D.C. Gun Laws,” CQ Today Online News, August 5, 2008. 45 Jonathan Allen, “Gun-Rights Gambit Sidetracks D.C. House Vote,” CQ Today, March 22, 2007; and for further information on H.R. 1433, see CRS Report RL33830, District of Columbia Voting Representation in Congress: An Analysis of Legislative Proposals, by Eugene Boyd. 46 As described in greater detail above, the National Instant Criminal Background Check System (NICS) is administered by the FBI, so that federally licensed gun dealers can process a background check to determine a customer’s eligibility to possess a firearm before proceeding with a transaction. 47 Under 27 CFR 478.11, the term “adjudicated as mental defective” includes a determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease (1) is a danger to himself or others, or (2) lacks the mental capacity to manage his own affairs. The term also includes (1) a finding of insanity by a court in a criminal case and (2) those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. §850a, 876(b). 48 Federal law authorizes the Attorney General to consider applications from prohibited persons for relief from disqualification (18 U.S.C. §925(c)). Since FY1993, however, Congress has attached an appropriations rider on the ATF salaries and expenses account that prohibits the expenditure of any funding under that account to process such applications. 49 Jonathan Weisman, “Democrats, NRA Reach Deal on Background-Check Bill,” Washington Post, June 10, 2007, p. A02. 50 David Rogers, “Democrats Stall on Gun-Records Bill: Despite Support, Background- Check Measure Staggers in Senate Amid Infighting,” Wall Street Journal, September 21, 2007, p. A6. 41

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Seth Stern, “Coburn Blocks Gun Background-Check Bill, Citing Concerns About Privacy, Spending,” CQ Today, September 25, 2007. 52 PTSD is an anxiety disorder that can occur after one has been through a traumatic event. Symptoms may manifest soon after the trauma, or may be delayed. For further information, see U.S. Department of Veterans Affairs, National Center for Posttraumatic Stress Disorder, Fact Sheet, available at [http://www.ncptsd.va.gov/ncmain/ncdocs/fact_shts/fs_what_ is_ptsd.html]. 53 Larry Pratt, “Veterans Disarmament Act To Bar Vets From Owning Guns,” September 23, 2007, available at [http://www.prisonplanet.com/ articles/september2007/230907Disarmament.htm]. 54 Federal Register, vol. 62, no. 124, June 27, 1997, p. 34634. 55 Federal Register, vol. 61, no. 174, September 6, 1996, p. 47095. 56 Ibid. 57 Personal communication with Compensation and Pension Program staff, Department of Veterans Affairs, July 9, 2008. 58 Ibid. 59 Ibid. 60 Ibid. 61 For further information on the treatment of mental illness and substance abuse for the purposes of gun control, see Donna M. Norris, M.D., et al., “Firearm Laws, Patients, and the Roles of Psychiatrists,” American Journal of Psychiatry, August 2006, pp. 1392-1396. 62 John Dougherty, “VA Give FBI Health Secrets: Veterans’ Records Could Block Firearms Purchases,” WorldNet Daily.com, June 22, 2000; and “VA Defends Vets’ Records Transfers to NICS System,” New Gun Week, vol. 35, issue 1650, July 10, 2000, p. 1. 63 Seth Stern, “House to Try Again on Public Housing Bill,” CQ Today, July 8, 2008. 64 36 Code of Federal Regulations Part 2. 65 50 Code of Federal Regulations Part 27. 66 Warren Richey, “Bid to Allow Guns in National Parks,” Christian Science Monitor, August 19, 2008, p. 3. 67 73 Federal Register 23388. 68 73 Federal Register 39272. 69 CRS compilation of FBI Uniform Crime Reports data show that from 2002 through 2006 there were 15 murders and non-negligent homicides


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reported by the FWS and 48 reported by the NPS. However, FWS reports all crimes encountered by its agents, whether or not they occurred on refuge land. It is difficult to determine how many of the 15 murders occurred on refuges. 70 For further information, see CRS Report RS22458, Gun Control: Statutory Disclosure Limitations on ATF Firearms Trace Data and Multiple Handgun Sales Reports, by William J. Krouse. 71 U.S. General Accounting Office, “Bureau of Alcohol, Tobacco, Firearms, and Explosives — Prohibition in the 2008 Consolidated Appropriations Act,” July 15, 2008, available at [http://www.gao.gov/decisions/appro/3 165 10.pdf]. 72 For further information, see CRS Report RL345 14, The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF): Budget and Operations, by William J. Krouse. 73 For further information, see CRS Report RS22837, Merida Initiative: U.S. Anticrime and Counterdrug Assistance to Mexico and Central America, by Colleen W. Cook and Clare Ribando Seelke. 74 119 Stat. 2095, October 26, 2005. 75 In the 108th Congress, the House passed a similar “gun industry liability” bill (H.R. 1036). The Senate considered a similar bill (S. 1805) and amended it with several gun control provisions, but this bill did not pass. 76 For further information, see CRS Report RS22074, Limiting Tort Liability of Gun Manufacturers and Gun Sellers: Legal Analysis of P.L. 109-92 (2005), by Henry Cohen. 77 In addition, the Omnibus Consolidated and Emergency Appropriations Act, 1999 (P.L. 105-277), requires all federal firearm licensees to offer for sale gun storage and safety devices. 78 120 Stat. 1391, October 4, 2006. 79 Regarding those seizures, the National Rifle Association (NRA) and others maintained that state “emergency powers” do not trump the Second Amendment right to keep and bear arms. The NRA and the Second Amendment Foundation filed a joint lawsuit in federal court seeking injunctive relief from those seizures. Pursuant to a court order, New Orleans authorities were directed to cease seizing firearms from citizens, who had otherwise committed no criminal violations, and to return already confiscated firearms. NRA v. Nagin, Civil Decision No. 05-20,000 (E.D. La. September 23, 2005).

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120 Stat. 1391, § 557. U.S. Congress, House of Representatives, Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, Oversight Hearing on the “Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) Parts I & II: Gun Show Enforcement,” February 15 and 28, 2006. 82 Testimony of ATF Assistant Director for Field Operations Michael R. Bouchard, U.S. Congress, House of Representatives, Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, Oversight Hearing on the “Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) Part ll: Gun Show Enforcement,” 109th Cong., 2nd sess., February 28, 2006. 83 Sewell Chan, “15 Mayors Meet in New York to Fight Against Gun Violence,” New York Times, April 26, 2006, p. A18. 84 For further information, see CRS Report RS22458, Gun Control: Statutory Disclosure Limitations on ATF Firearms Trace Data and Multiple Handgun Sales Reports, by William J. Krouse. 85 For FY2004, the limitation on the use of ATF firearm trace data was inserted into the ATF appropriations language by an amendment offered by Representative Todd Tiahrt in full committee markup. 86 For further information, see City of New York v. Beretta U.S.A., No. 00-CV364 1, 2006 U.S. Dist. LEXIS 24452 (E.D.N.Y. April 27, 2006). 87 Sewell Chan, “15 Mayors Meet in New York to Fight Against Gun Violence,” New York Times, April 26, 2006, p. A18. 88 During the 107th Congress, the House passed a similar bill entitled Our Lady of Peace Act (H.R. 4757), but no further action was taken on it before that Congress adjourned. In the 108th Congress, Senator Daschle introduced the Justice Enhancement and Domestic Security Act of 2003 (S. 22), which included the Our Lady of Peace Act (Title V, Subtitle B), and Senator Charles Schumer introduced a similar bill (S. 1706). Neither bill was acted on, however, in the 108th Congress. 89 In the 108th Congress, the House passed a bill (H.R. 3193) introduced by Representative Souder that would have repealed the “DC handgun ban” and other limitations on firearms possession on September 29, 2004 by a recorded vote: 250-17 1, 1 present (Roll no. 477). A similar measure was introduced in the Senate (S. 1414) by Senator Orrin Hatch. 81


83

For further information, see CRS Report RL3301 1, Terrorist Screening and Brady Background Checks for Firearms, by William J. Krouse. 91 In the 1 10th Congress, the House-passed H.R. 2640 and Senate-reported S. 2084 include provisions that would permanently codify the NICS fee prohibition (see discussion of the NICS Improvement Amendments Act of 2007 above). For FY2008, such a prohibition is also included on an annual basis in the House-passed and Senate-reported CJS appropriations bills (H.R. 3093/S. 1745). 92 63 Federal Register 58303. 93 NRA v. Reno (No. 99-5270, 216 F. 3d 122; 2000 U.S. App. Lexis 15906). 94 66 Federal Register 6470. 95 66 Federal Register 35567. 96 For further information on these issues, see GAO, Gun Control: Potential Effects of Next- Day Destruction of NICS Background Check Records, GAO-02-653, July 2002. 97 Fox Butterfield, “Justice Dept. Bars Use of Gun Checks in Terror Inquiry: FBI Wants to See Files,” New York Times, December 6, 2001, p. A1. 98 Subparagraph 103(i) of P.L. 103-159 (107 Stat. 1542). 99 For further information, see CRS Report RL32366, Terrorist Identification, Screening, and Tracking Under Homeland Security Presidential Directive 6, by William J. Krouse. 100 Dan Eggen, “FBI Gets More Time on Gun Buys,” Washington Post, November 22, 2003, p. A05. 101 For further information, see GAO, Gun Control and Terrorism: FBI Could Better Manage Firearm-Related Background Checks Involving Terrorist Watch List Records, GAO-05-127, January 2005, 38 pp. 102 Ibid., p. 9. 103 Ibid., p. 26. 104 Michael Luo, “U.S. Proposal Could Block Gun Buyers Tied to Terror,” New York Times, April 27, 2007. 105 For further information, see CRS Report RS22151, Long-Range Fifty Caliber Rifles: Should They Be More Strictly Regulated? by William J. Krouse. 106 26 USC, Chapter 53, §580 1 et seq. 107 18 USC, Chapter 44, §921 et seq. 108 For further information, see Firearm Use by Offenders, by Caroline Wolf Harlow, at [http://www.ojp.usdoj .gov/bj s/pub/pdf/fuo.pdf].

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18 U.S.C. § 921(a)(30)(B). 18 U.S.C. § 921(a)(30)(C) and (D). 111 For further information, see CRS Report RL32077, The Assault Weapons Ban: Legal Challenges and Legislative Issues, by T.J. Halstead, and CRS Report RL32585, Semiautomatic Assault Weapons Ban, by William J. Krouse. 110



Chapter 3

GUN CONTROL: STATUTORY DISCLOSURE LIMITATIONS ON ATF FIREARMS TRACE DATA * AND MULTIPLE HANDGUN SALES REPORTS William J. Krouse SUMMARY For FY2003-FY2006, a rider on the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) appropriations has prohibited that agency from disclosing firearm trace data (based on firearm transfer records maintained in part by licensed gun dealers) and multiple handgun sales reports data for any purpose other than supporting a “bona fide” criminal investigation or agency licensing proceeding. This rider is known as the “Tiahrt” amendment, for its sponsor in full committee markup of the FY2004 Commerce-Justice-State appropriations bill, Representative Todd Tiahrt. Those limitations and conditions on ATF funding remained in effect for FY2007 under the Revised Continuing Appropriations Resolution (P.L. 1105). A coalition of 210 city mayors led by New York City Mayor Michael Bloomberg favors the repeal of this rider, but the Fraternal Order of Police *

This is an edited, excerpted and augmented edition of a Congressional Research Service Report for Congress publication, Order Code RS22458, dated February 1, 2008.

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favors retaining it, as does ATF. For FY2008, Congress included modified Tiahrt amendment language that authorizes the release of aggregate trace data on illegal gun trafficking in the Consolidated Appropriations Act, 2008 (P.L. 110-161).

BACKGROUND Located in the Department of Justice (DOJ),1 ATF is the lead law enforcement agency charged with administering and enforcing federal laws related to the manufacture, importation, and distribution of firearms and explosives. ATF also investigates arson cases with a federal nexus and violations of laws related to the manufacture, importation and distribution of alcohol and tobacco. For FY2006, Congress appropriated nearly $932 million for ATF, of which nearly $671 million (72%) was allocated for the firearms decision unit in the ATF budget.2 For FY2007, Congress appropriated $984 million for ATF, but breakouts by decision unit have not been made available. Under the Tiahrt amendment, for FY2003-FY2007, ATF did not disclosed trace data or multiple handgun sales reports to any person or entity, unless the request for such data was part of a “bona fide” criminal investigation within their jurisdiction. As a result, firearms trace data were no longer available for municipalities and other third parties to build cases against gun manufacturers and dealers in civil lawsuits. In addition, ATF stopped publishing annual reports on crime gun trends and patterns. For FY2008, the language of the Tiahrt amendment was modified to authorize the release of aggregate statistics on “firearms traffickers and trafficking channels, or firearms misuse, felons, and trafficking investigations.”3 The FY2008 Tiahrt language, however, continues to prohibit the release of firearm trace data for the purposes of suing gun manufacturers and dealers.

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ATF FIREARM TRACE DATA AND MULTIPLE HANDGUN SALES REPORTS To enforce federal firearms laws, ATF conducts firearm traces for federal, state, tribal, county, and municipal law enforcement agencies. Gun dealers must also report multiple handgun sales to ATF. Firearm trace data and multiple handgun sales reports, along with other investigative data, can be strong indicators of illegal firearms trafficking. For several reasons, however, there are methodological and operational limits on the use of such data and reports, in addition to the statutory limitations, as discussed below.

Firearm Trace Process As part of a trace, law enforcement officers submit to ATF certain information about a firearm in question, including the manufacturer, model, caliber, and serial number. In turn, ATF firearm specialists systematically research the firearm’s transfer documents, which Federal Firearms Licensees (FFLs) are required to maintain, as a firearm passes through the commercial chain of distribution, from manufacturer/importer, to wholesaler/distributor, and to first retail seller. From the first retail dealer’s transfer records (bound log book and ATF Form 4473s), ATF can determine the first private person to whom the firearm was transferred. When dealers go out of business, these records are sent to, and maintained by, ATF.4 By following up with the private person to whom the firearm was last transferred, investigators are often able to generate new leads to solve firearms-related crimes.

YCGII and Comprehensive Tracing As gun violence increased from the mid- 1980s to the early 1990s, law enforcement agencies increasingly availed themselves of ATF’s firearm tracing capabilities. As the firearm trace database grew, it yielded new insights for law enforcement agencies. In 1994, ATF made “comprehensive tracing,” which entails tracing all “crime guns” recovered by law enforcement in a particular geographic area, an agency objective. In 1996, the Clinton Administration launched the Youth Crime Gun Interdiction Initiative

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(YCGII). Under this initiative, participating cities were provided funding to comprehensively trace crime guns and improve information about the illegal sources of firearms. In FY1996, 27 cities participated in this program. By FY2004, it had been expanded to more than 60 cities. For FY2005, the Bush Administration requested and received funding to expand Project Safe Neighborhoods (PSN) and YCGII to 80 cities, yet ATF dropped the YCGII program in FY2005 and began promoting the PSN program as part of its wider integrated violence reduction strategy. For the years 1997 through 2000, ATF published YCGII reports that included data on firearm traces by participating city.5 Although the data in those reports were anonymized and did not identify individual FFLs, ATF has issued no additional YCGII reports. ATF had also made trace data available to researchers under contract with disclosure restrictions, but such data were only released after five years, because ATF did not want to compromise ongoing investigations, among other things. After reviewing the trace data, some researchers suggested that through comprehensive crime gun tracing new findings could be made regarding illegal gun trafficking — especially at the regional level,6 while others noted methodological shortcomings in the firearms trace data that arguably have precluded making conclusions about crime guns at a national level.7

Methodological Limits on Firearms Trace Data ATF has defined “crime gun” to mean any firearm that is illegally possessed, used in crime, or suspected to have been used in crime. An abandoned firearm may also be categorized as a crime gun if it is suspected it was used in a crime or illegally possessed.8 Under this definition, most, but not all, traced firearms are “crime guns.” Firearms trace data, however, are limited and may be biased by several factors: • •

traced firearms are generally recovered by law enforcement, and they may not be representative of firearms possessed and used by criminals; there remains significant variation over time and from jurisdiction to jurisdiction as to “when, why, and how” a firearm is recovered and selected to be traced; and

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a substantial percentage of recovered firearms cannot be successfully traced for several reasons including poor recordkeeping by FFLs.

According to ATF, the firearms trace database is an operational system designed to aid in ongoing investigations, rather than a system to capture “crime gun” statistics.9 Nevertheless, combined with multiple handgun sales reports and other investigative data, firearm trace data have proven to be a viable tool for ATF in targeting regulatory and investigative resources with greater effect.

Multiple Handgun Sales Reports Federal law requires FFLs to report to the Attorney General (AG) whenever they transfer more than one handgun (pistol or revolver) to any nonlicensee within five consecutive business days.10 The FFL must also forward this information to either the state police or local law enforcement agency that has jurisdiction in the area where the transfer occurred.11 Furthermore, except for information pertaining to persons prohibited from possessing firearms, federal law prohibits state or local law enforcement agencies from disclosing those records to any person or entity, and requires those records be destroyed within 20 days of receipt, so that those records cannot be used as a registry of firearms or firearms owners.12 At the end of every six-month period, the state or local law enforcement agency is required to certify to the AG that the record nondisclosure and destruction requirements were complied with.

Operational Limits on Illegal Firearms Trafficking Indicators ATF analyzes firearm trace data, multiple handgun sales reports, and firearms-trafficking investigative data to more effectively target armed violent criminals and gun traffickers for prosecution. By aggregating these data, ATF analysts are often able to discern regional illegal firearms trafficking trends and patterns. Working with contract researchers at Northeastern University, ATF developed indicators of illegal firearms trafficking:13

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• • • • • •

multiple crime guns traced to an FFL or first retail purchaser; short time-to-crime for crime guns traced to an FFL or first retail purchaser; incomplete trace results, due to an unresponsive FFL or other causes; significant or frequently reported firearms losses or thefts by an FFL; frequent multiple sales of handguns by an FFL or multiple purchases of firearms by a non-licensee, combined with crime gun traces; and recovery of firearms with obliterated serial numbers.

In February 2000, ATF reported that (1) out of 83,200 FFLs, about 1,020 had 10 or more firearms that were traced back to them in 1998; (2) while those FFLs only represented about 1.2% of licensed retail dealers, they accounted for more than 50% of traces to retail dealers in that year; and (3) less than 1% of retail dealers, about 330 FFLs, had 25 or more firearms traced back to them. 14 By concentrating their enforcement and regulatory actions on this small percentage of FFLs, ATF sought to prevent the further diversion of firearms into illegal channels of commerce. At the same time, ATF’ s findings might have undergirded the policies of a number of municipalities, under which civil lawsuits were pursued against the gun industry for gun violence in their jurisdictions. This is despite the fact that ATF has consistently stated that trace frequency, in and of itself, is not indicative of criminal activity by an FFL. In addition, with ATF data, gun control advocates began identifying and publishing the names of FFLs who in their judgement were “bad apple” dealers, as the data showed “crime guns” being traced back to their businesses, along with multiple handgun sales reports, in numbers the gun control advocates found unacceptable.15 As noted above, while multiple handgun sales reports, along with firearm trace and other investigative data, can be strong indicators of illegal firearms trafficking, alone they do not constitute proof of criminal wrongdoing on the part of an FFL. As required under the appropriations rider, which was initially predicated on ATF’s disclosure policy, ATF declined to disclose such data to the City of Chicago. ATF argued in part that trace and multiple handgun sales data were exempt from the Freedom of Information Act (FOIA), as such data could potentially compromise ongoing investigations. While the 7th Circuit rejected ATF’s FOIA arguments, the Tiahrt amendment was enacted, preventing ATF from releasing trace data for any purpose other than a “bona fide” criminal investigation.16

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LAWSUITS AGAINST THE GUN INDUSTRY Mayors and other municipal leaders have sought to curb gun violence in their communities by filing civil lawsuits against gun manufacturers and dealers based on three arguments: (1) the firearms they sold were defective, (2) the gun industry had engaged in improper marketing techniques, and (3) the proliferation of firearms in certain urban areas constituted a public nuisance. Many lawsuits against the gun industry were dismissed, while others were not. In some of these cases, analyses of ATF firearms trace and investigative data by nongovernmental parties were submitted as evidence showing liability on the part of gun manufacturers and/or dealers. Congress passed the Protection of Lawful Commerce in Arms Act (P.L. 109-92) to limit the tort liability of gun manufacturers and dealers by prohibiting civil actions or proceedings or administrative proceedings against any gun manufacturer or dealer, or trade association for damages resulting from the criminal or unlawful misuse of a firearm or ammunition.17 Exceptions were provided under certain circumstances. The city of New York has pursued a public nuisance civil suit against multiple gun manufacturers based in part on ATF trace and investigative data that were acquired under a strict confidentiality order entered by a federal judge before the disclosure limits were enacted.18

RELATED LEGISLATIVE PROPOSALS For FY2003-FY2006, a rider on the ATF appropriations language has prohibited that agency from disclosing data on illegal gun trafficking based on firearm traces and FFL transfer records, as well as multiple handgun sale reports, for any purpose other than supporting a “bona fide” criminal investigation. This rider is known as the “Tiahrt” amendment, for its sponsor in full committee markup of the FY2004 Commerce-JusticeState appropriations bill, Representative Todd Tiahrt. Under the FY2007 Continuing Appropriations Resolution (P.L. 110-5), the Tiahrt limitations remained in effect for that fiscal year. Proponents of the Tiahrt amendment contend that the business records of FFLs should be confidential, and that access to these records is only authorized under federal law for the purposes of conducting ATF trace

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requests in order to solve crimes. They argue further that it was never intended that firearm trace data be used to support civil, public nuisance lawsuits against firearms manufacturers and dealers. Opponents of the amendment counter that every tool is needed to “crackdown” on irresponsible FFLs by analyzing firearm trace data on a regional and national basis, so that federal, state, and local law enforcement authorities can be informed of the source and market areas for “crime guns.”19 A coalition of 210 city mayors led by New York City Mayor Michael Bloomberg favors the repeal of this amendment, but the Fraternal Order of Police reportedly favors retaining it,20 as does ATF.21 In the 1 09th Congress, House Judiciary Committee ordered reported H.R. 5005, a bill that included a provision (Section 9) that would have codified the Tiahrt amendment; however, that bill saw no further action. In addition, Senator Robert Menendez and Representative Steven R. Rothman introduced identical bills (S. 2460/H.R. 5033) to repeal the FY2006 appropriation rider. Senator Charles Schumer introduced a similar bill (S. 2629), which he has reintroduced in the 110th Congress (S. 77). Also, in the 1 10th Congress, Senator Richard Shelby amended the FY2008 Commerce-Justice-Science (CJS) appropriations bill (S. 1745; S .Rept. 110-124) with a modified rider in full committee markup. A similar rider was included in the House- reported and passed CJS appropriations bill (H.R. 3093). The Senate passed H.R. 3093, amended with the language of S. 1745. While conference negotiations on H.R. 3093 broke down for reasons unrelated to gun control, the FY2008 CJS appropriations and the Tiahrt language were enacted as part of the Consolidated Appropriations Act, 2008 (P.L. 110-161). Although the Tiahrt language was modified to authorize the release of aggregate firearms trace data on illegal gun trafficking, it still prohibits the use of those data for the purposes of suing gun manufacturers and dealers.

ENDNOTES 1

As part of the Homeland Security Act (P.L. 107-296, 116 Stat. 2135), Congress transferred ATF’s enforcement and regulatory functions for firearms and explosives to the DOJ from the Department of the Treasury, adding “explosives” to ATF’s title. The regulatory aspects of those laws

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related to the manufacture, importation, and distribution of alcohol and tobacco are the domain of the Tax and Trade Bureau (TTB), which remained at the Department of the Treasury. 2 The other two decision units include (1) arson and explosives and (2) alcohol and tobacco. 3 Consolidated Appropriations Act, 2008 (P.L. 110-161). 4 Another ATF appropriations rider prohibits those records from being searched electronically by firearm or firearm owner to prevent their use as a gun registry. Those records are currently indexed by firearm serial number 5 Those reports are available at [http://www.atf.treas.gov/firearms/ycgii/ 2000/index.htm]. 6 Philip J. Cook and Anthony A. Braga, “Comprehensive Firearms Tracing: Strategic and Investigative Uses of New Data on Firearms Markets,” Arizona Law Review, vol. 43:2, 2001, p. 290. 7 Ibid. 8 See U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Crime Gun Trace Reports (2000), National Report, The ATF Youth Crime Gun Interdiction Initiative, (July. 2002), p. A-3. Available at [http://www.atf.gov/ firearms/ycgii/2000/index.htm]. 9 Ibid. 10 18 U.S.C. 923(g)(3). 11 Ibid. 12 In the 109th Congress, section 7 of H.R. 5005 (discussed below) would have repealed the multiple handgun reporting requirement to state and local law enforcement. 13 U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Commerce in Firearms in the United States (February 2000), p. 22. 14 Ibid. 15 Brady Campaign to Prevent Gun Violence, “Brady Campaign to Prevent Gun Violence: Ten Worst ‘Bad Apple’ Gun Dealers in America,” July 16, 2003. 16 For further information, see City of Chicago v. U.S. Department of Treasury, 297 F.3d 672 (7th Cir. 2002), vacated and remanded, 537 U.S. 1229 (2003), vacated on rehearing, 423 F.3d 377 (7th Cir. 2005).

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For further information, see CRS Report RS22074, Limiting Tort Liability of Gun Manufacturers and Gun Sellers: Legal Analysis of P.L. 109-92 (2005), by Henry Cohen. 18 For further information, see City of New York v. Beretta U.S.A., No. 00-CV3641, 2006 U.S. Dist. LEXIS 24452 (E.D.N.Y. April 27, 2006). 19 Sewell Chan, “15 Mayors Meet in New York to Fight Against Gun Violence,” New York Times, April 26, 2006, p. A18. 20 Alex Wayne, “Senate Democrats May Pursue Wider Access to Gun Crime Information,” CQ Today, April 19, 2007. 21 Michael J. Sullivan, “Gun-Trace Data Shared — Prudently,” Boston Herald, May 2, 2007.

INDEX # 9/11, 67

A access, 43, 53, 59, 67, 68, 69, 92 accidental, 37 accidents, 37 accuracy, 38, 66 acquisitions, 41 administration, 50 administrative, 47, 48, 58, 91 age, 3, 6, 8, 36, 39 agents, 41, 58, 64, 65, 81 aid, 14, 17, 89 alcohol, 54, 86, 93 aliens, 67 amendments, 47, 48, 50, 52, 55, 56, 63, 64 analysts, 89 anxiety, 80 anxiety disorder, 80 appropriations, ix, 47, 52, 53, 54, 55, 56, 57, 59, 60, 61, 62, 64, 65, 67, 71, 79, 82, 83, 85, 90, 91, 92, 93 appropriations bills, 83 Arizona, 20, 93 armed forces, 40, 67 arrest, 19 arson, 54, 86, 93

assault, ix, 2, 30, 32, 33, 34, 35, 36, 56, 65, 71, 72, 73, 75 ATF, v, vii, ix, 2, 3, 4, 6, 9, 10, 11, 13, 14, 18, 19, 20, 21, 22, 23, 24, 27, 28, 35, 41, 45, 49, 52, 53, 54, 55, 58, 59, 60, 64, 65, 66, 70, 77, 79, 81, 82, 85, 86, 87, 88, 89, 90, 91, 92, 93 attacks, 32, 66, 67 Attorney General, 39, 41, 42, 47, 56, 58, 60, 61, 62, 66, 67, 69, 79, 89 authenticity, 20 authority, 31, 46, 49, 58, 66, 75, 79 availability, 32, 44

B Boston, 94 Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), viii, ix, 5, 21, 22, 23, 24, 26, 27, 28, 30, 31, 76, 81, 82, 85 Bush Administration, 88 buyer, vii, 1, 3, 4, 39

C caliber, ix, 30, 32, 35, 65, 70, 87 capacity, ix, 30, 32, 44, 45, 49, 71, 72, 73, 75, 79 Census Bureau, 36 Centers for Disease Control, 5

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Central America, 81 certification, viii, 30, 31, 52, 60 chain of distribution, 87 channels, 53, 86, 90 children, 14 citizens, 33, 39, 46, 82 citizenship, 40 civil action, 91 civil law, 86, 90, 91 civil rights, 33 civilian, 70, 72 CJS, 53, 55, 64, 83, 92 classes, 40 Clinton Administration, 87 cocaine, 9 colors, 8 Columbia, viii, 29, 31, 42, 44, 45, 46, 62, 66, 76, 79 commerce, 32, 38, 39, 40, 75, 90 Commerce, Justice, Science, 54 Committee on the Judiciary, 82 communication, 80 communities, 91 compensation, 70 compilation, 81 compliance, 54 components, 33 confidentiality, 91 Congress, viii, ix, 29, 30, 31, 32, 39, 41, 42, 44, 45, 46, 47, 50, 51, 52, 53, 54, 55, 56, 57, 60, 61, 62, 63, 64, 65, 69, 70, 71, 72, 73, 74, 75, 79, 81, 82, 83, 85, 86, 91, 92, 93 Connecticut, 6, 24 consent, 75 Consolidated Appropriations Act, viii, ix, 30, 32, 52, 53, 75, 81, 86, 92, 93 Constitution, 32, 33 construction, 54 contractors, 60 control, vii, viii, 27, 29, 32, 33, 34, 55, 57, 62, 70, 90 corridors, 55 counterfeit, 20 counterterrorism, 67, 68, 69 Court of Appeals, 66

courts, 47, 62, 76 crack, 5, 9 credentialing, viii, 30, 31, 52 crime, vii, 2, 5, 6, 11, 13, 18, 24, 26, 27, 32, 34, 36, 39, 40, 52, 54, 55, 56, 59, 62, 70, 86, 87, 88, 89, 90, 92 crimes, viii, 2, 5, 17, 23, 30, 31, 37, 47, 59, 62, 72, 75, 81, 87, 92 criminal activity, 90 criminal justice, 34, 38 criminal justice system, 34 criminals, vii, 1, 2, 5, 88, 89 criminology, 37 CRS, 76, 77, 78, 79, 81, 82, 83, 84, 94 cultural differences, 34 customers, 9, 14, 15, 42

D danger, 48, 49, 50, 79 database, 20, 36, 87, 89 dating, 13 death, 2, 63 death penalty, 63 deaths, 37, 77 decisions, 81 defense, viii, ix, 29, 30, 31, 32, 33, 34, 37, 38, 45, 63 definition, 25, 46, 49, 71, 72, 88 delivery, 56, 74 demand, 17 Democrats, 79, 80, 94 denial, 43 Department of Commerce, 71 Department of Homeland Security, 57 Department of Housing and Urban Development (HUD), 32, 50 Department of Interior (DOI), 51 Department of Justice (DOJ), ix, 5, 22, 23, 25, 26, 27, 28, 30, 32, 65, 69, 76, 77, 78, 86 Department of the Interior, 78 destruction, 53, 65, 66, 67, 89 detainees, 67 disaster, 57 disclosure, 39, 53, 59, 88, 90, 91

Index disposition, 43 disputes, 33 distribution, vii, 2, 39, 54, 86, 87, 93 District of Columbia, viii, 29, 31, 42, 44, 45, 46, 62, 66, 76, 79 division, 42 domestic violence, viii, 30, 40, 43, 47, 62, 75 draft, 53, 54 driver’s license, 20, 40 drug addict, 8 drug trafficking, 6, 39, 55, 56 drug use, 40 drugs, 8, 9, 16

E Emergency Assistance, 57 emergency relief, 57 employees, 5, 8, 9, 14, 15, 16, 17 employers, 17 employment, 40, 75 ethnicity, 58 explosives, 54, 64, 69, 86, 93 eyes, 9

F faith, 34 family, 19 farming, 40, 75 fatalities, 37 February, 20, 22, 24, 67, 68, 77, 82, 85, 90, 93 Federal Bureau of Investigation (FBI), 5, 28, 35, 40, 42, 43, 44, 47, 49, 50, 52, 65, 66, 67, 68, 69, 79, 80, 81, 83 federal courts, 76 federal criminal law, 54 federal government, 70, 71, 73 federal law, 19, 21, 24, 33, 38, 41, 59, 61, 76, 86, 89, 92 Federal Register, 80, 81, 83 fee, 61, 64, 65, 83 feeding, ix, 30, 32, 33, 71, 72, 73, 75 fees, 32, 47, 50, 51

97

feet, 75 felon, 3, 6, 11, 15 felony, 20 field agents, 68 fines, 58 fire, 46, 70, 71 firearm, vii, viii, ix, 2, 3, 4, 8, 21, 23, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 51, 53, 55, 57, 59, 61, 62, 63, 65, 66, 67, 68, 69, 70, 71, 73, 74, 75, 76, 79, 81, 82, 85, 86, 87, 88, 89, 90, 91, 92, 93 firearms, vii, viii, ix, 2, 3, 4, 5, 6, 17, 19, 20, 21, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 50, 51, 52, 53, 54, 55, 57, 58, 59, 60, 61, 63, 65, 66, 67, 68, 69, 70, 71, 72, 73, 75, 76, 77, 82, 83, 86, 87, 88, 89, 90, 91, 92, 93 Fish and Wildlife Service (FWS), 38, 51, 78, 81 floating, 17 flow, 33 folding, 72 Fox, 77, 83 Freedom of Information Act (FOIA), 90 frustration, 33 funding, viii, ix, 30, 31, 45, 52, 53, 54, 56, 62, 71, 79, 85, 88 funds, 54

G gangs, 14 gender, 58 General Accounting Office, 28, 81 Georgia, 4, 5, 6, 9, 12, 13, 14, 15, 17, 18, 19, 23, 24, 26, 27 girls, 9 glass, 11 government, 5, 33, 34, 40, 47, 54, 60, 62, 64, 68, 70, 71, 73, 76 Government Accountability Office(GAO), 28, 43, 54 Government Reform Committee, 46 groups, 45, 47, 54

98

Index

Guam, 42 guardian, 75 guidance, 17, 22, 59 guidelines, 58 guilty, 6, 13, 49, 79 gun control, viii, ix, 29, 30, 31, 32, 33, 34, 36, 47, 48, 55, 66, 67, 80, 81, 90, 92 guns, vii, 1, 2, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 23, 25, 27, 28, 33, 34, 35, 37, 39, 40, 41, 46, 58, 59, 60, 61, 71, 74, 87, 88, 90, 92

H hands, vii, 2, 14, 15, 21 hearing, 59 high-risk, 33 Home Rule Act, 79 Homeland Security, 57, 59, 68, 76, 82, 83, 93 Homeland Security Act, 76, 93 homicide, 23, 32, 77 hostility, 34 House, viii, 29, 30, 31, 32, 44, 46, 47, 50, 51, 53, 54, 55, 56, 57, 58, 59, 61, 62, 63, 64, 65, 67, 71, 79, 80, 81, 82, 83, 92 House Appropriations Committee, 54 household, 33, 38 households, 35, 37 housing, viii, 30, 44, 50, 51 Housing and Urban Development (HUD), 32, 50 hunting, 22, 33, 34, 39, 40, 51, 70, 75 Hurricane Katrina, 57

I identification, 11, 20, 21, 60, 68 identity, 40 imitation, 75 immigrants, 40 immigration, 67 implementation, 56 importer, vii, 2, 87 imports, 35

imprisonment, 40 incentives, 31, 62 incidence, 34, 38 inclusion, viii, 30, 47, 49, 50, 62 incongruity, 73 Indiana, 14, 26 indication, 14 indicators, 20, 87, 89, 90 industry, 5, 54, 64, 72, 74, 81, 90, 91 injury, 49 inspections, 20, 66 Inspector General, 58 inspectors, 65 institutions, 40 integrity, 17 intelligence, 49, 53, 79 interference, 73 Internet, 41, 78 interstate, 17, 18, 39, 40, 61, 74, 75 interstate commerce, 75 intervention, 37 interviews, 5, 7, 8, 10, 11, 15, 28 inventories, 53 Investigations, 28 investigative, vii, 1, 87, 89, 90, 91 Iraq, 54

J January, 25, 26, 27, 47, 66, 68, 83 jewelry, 11 judge, 31, 49, 63, 91 judges, ix, 30, 32 judgment, 24 Judiciary, viii, 30, 31, 44, 48, 52, 55, 56, 57, 58, 59, 63, 64, 74, 92 Judiciary Committee, viii, 30, 31, 44, 48, 52, 56, 57, 58, 59, 63, 64, 74, 92 jurisdiction, 31, 49, 86, 88, 89 jurisdictions, 90 justice, 38, 40 juveniles, 37, 75

Index

K Katrina, 57 King, 63, 69

L land, 51, 81 language, ix, 46, 48, 51, 52, 53, 57, 59, 63, 65, 69, 74, 82, 86, 91, 92 law, viii, 4, 5, 6, 8, 19, 20, 21, 24, 30, 31, 33, 34, 35, 38, 39, 40, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 57, 58, 59, 60, 61, 63, 66, 67, 68, 71, 73, 76, 79, 86, 87, 88, 89, 92, 93 law enforcement, 5, 6, 8, 34, 35, 39, 42, 45, 52, 53, 54, 58, 59, 60, 63, 66, 67, 68, 76, 86, 87, 88, 89, 92, 93 laws, viii, 27, 29, 31, 33, 38, 40, 41, 42, 44, 51, 55, 61, 72, 76, 86, 87, 93 lawsuits, 55, 59, 86, 90, 91, 92 lead, 60, 86 leadership, viii, 29, 30, 31, 32, 44, 46 learning, 67 legality, 21 legislation, vii, 32, 33, 44, 48, 50, 54, 55, 56, 62, 69, 70, 71, 75 legislative, viii, ix, 29, 30, 31, 32, 49, 55, 64, 69 legislative proposals, 32 licenses, 20, 40, 42, 58, 69, 71 licensing, ix, 53, 85 limitation, 53, 60, 61, 82 limitations, viii, ix, 30, 31, 38, 45, 53, 59, 83, 85, 87, 91 liquor, 33 local authorities, 60 local government, 47, 54, 62, 76 loss of consciousness, 48 losses, 20, 90 Louisiana, 6

99

M magazines, 71 major cities, 59 management, 14, 32, 50 manslaughter, 77 manufacturer, vii, 2, 39, 87, 91 manufacturing, 39 Mariana Islands, 42 marijuana, 9 market, vii, 2, 14, 19, 59, 92 marketing, 91 markets, vii, 2, 17, 19 Maryland, 17, 18, 19, 46 measures, 48, 53, 72 men, 15 mental capacity, 49, 79 mental illness, 49, 79, 80 metric, 70 Mexico, 20, 55, 81 Miami, 1, 8 military, 70, 72 militias, 33 minority, 74 models, 13, 72, 73 modern society, 33 money, 5, 8, 10, 13, 16 Montana, 20 mortality, 34 mortality rate, 34 motion, 45, 46, 51 motivation, 38 movement, 27

N national, 6, 11, 14, 35, 36, 37, 42, 53, 59, 60, 88, 92 National Crime Victimization Survey, 36, 77 National Park Service, 51 National Park Service (NPS), 51 National Research Council, 76 national security, 60 natural, 2

100

Index

NCVS, 36, 37 New Mexico, 20 New Orleans, 6, 22, 24, 57, 82 New York, ix, 5, 9, 15, 17, 18, 19, 23, 24, 26, 27, 53, 59, 82, 83, 86, 91, 92, 94 New York Times, 82, 83, 94 No Fly, 69 non-citizen, 67 non-citizens, 67 nondisclosure, 89 nongovernmental, 91 nonimmigrants, 76 NPS, 51, 81

O obsolete, 33 obstruction, 58 offenders, 36, 38 Office of Justice Programs, 78 Ohio, 13, 15, 16, 17, 21, 24, 26, 27 old age, 36 omnibus, 63 online, 77 opposition, 34, 48, 53 organizations, 6, 55 oversight, 58 ownership, 32, 34

poor, 89 population, 70, 71 powder, 56 power, 34 powers, 81 President Bush, 47 prices, 35 prisoners, 72 privacy, 48, 60, 66 private, 33, 34, 35, 57, 65, 70, 73, 74, 75, 76, 87 probation, 13 production, 35, 39 profit, 13 program, 21, 50, 88 proliferation, 34, 91 property, 34, 37, 38, 76 protection, 37, 39, 51 PTSD, 48, 50, 80 public, viii, 30, 32, 33, 34, 41, 44, 50, 51, 52, 59, 75, 91, 92 public housing, viii, 30, 44, 50, 51 public nuisance law, 59, 92 public safety, 34 Puerto Rico, 42

Q questioning, 15, 16

P R paper, 60 partnerships, 54 penalties, 39, 46, 56, 58, 75 penalty, 63 Pennsylvania, 5, 9, 11, 23, 24, 25, 26 performance, 56, 66, 72 permit, 27, 76 perpetration, 39 personal, 34, 39, 51, 60 Philadelphia, 9 plastic, 75 play, 19 police, 15, 33, 37, 52, 77, 89

race, 58 range, ix, 30, 32, 65, 70, 71 rape, 36 record keeping, 66 recovery, 90 recreation, 38 recreational, 34, 35, 70 reduction, 64, 88 Reform Act, 57 refuge, 81 regional, 59, 88, 89, 92 regression, 27

Index regression analysis, 27 regulation, viii, 29, 31, 32, 33, 34, 39, 73 regulations, ix, 30, 32, 44, 51, 52, 53, 69 regulators, 6, 33 relaxation, 61 repair, 60 research, 5, 38, 60, 87 researchers, 38, 88, 89 resolution, 45 resources, 55, 89 retail, vii, 2, 21, 87, 90 retention, 66, 69 revenue, 76 risk, 21, 33, 52, 61 risks, 33 robbery, 32, 36 Rules Committee, 45

S safety, 33, 56, 76, 81 salaries, 54, 79 sales, vii, ix, 2, 6, 11, 14, 16, 17, 18, 27, 32, 39, 41, 45, 53, 59, 60, 85, 86, 87, 89, 90 sample, 38 sampling, 19 Saturday, 33 school, 36, 75 search, 41 searches, 60, 66 searching, 67 Secret Service, 24 Secretary of the Treasury, 33, 39 security, 33, 37, 60, 63, 75 seizure, 57 seizures, 57, 59, 81 Self, 37, 38, 78 Senate, viii, 28, 30, 31, 32, 44, 47, 48, 52, 53, 55, 56, 57, 61, 62, 63, 64, 67, 72, 73, 74, 80, 81, 83, 92, 94 Senator Leahy, 52, 64 sentences, 63 September 11, 66 series, 15, 16 services, 60

101

severity, 27 sex, 63 sexual assault, 36 sharing, 60 shipping, 61 shoot, 70 signs, 16 silencers, 70 smuggling, 18, 55 social problems, 34 South Carolina, 6, 14, 17, 24, 25, 26 sponsor, ix, 85, 91 sports, 22 spouse, 48 staffing, 54 state laws, 40, 72, 76 statistical analysis, 18 statistics, 34, 36, 38, 53, 86, 89 statutes, 38, 40 statutory, 73, 87 stock, 70, 72 storage, 76, 81 students, 37 substance abuse, 80 substances, 56, 74 supplemental, 54, 64 suppression, 33 suppressor, 72 Supreme Court, viii, 29, 31, 44, 45, 75, 76, 79 surviving, 48 systems, 47, 62

T tanks, 70 taxes, 39, 70 teens, 77 tenants, viii, 30, 32, 44, 50 terrorism, 68, 69 terrorist, ix, 20, 30, 32, 65, 66, 67, 68, 69 terrorist attack, 66 Terrorist Screening Center (TSC), 68 Terrorist Screening Database (TSDB), 68 Terrorist Watch List, 28, 65, 67, 83 terrorists, 33, 67, 68, 69

102

Index

test statistic, 27 testimony, 58 The Homeland Security Act, 76 threatened, 10 threatening, 40 time, 9, 10, 11, 13, 20, 54, 88, 90 title, 93 tobacco, 54, 86, 93 tort, 91 toys, 75 trade, 22, 91 training, 17, 21, 22, 60 transactions, ix, 5, 6, 30, 32, 40, 41, 43, 65, 66, 68, 69 transfer, ix, 4, 31, 40, 41, 43, 47, 60, 61, 63, 67, 69, 70, 71, 72, 73, 74, 75, 85, 87, 89, 91 transport, 40 Transportation Security Administration, 69 trauma, 80 Treasury, 19, 22, 23, 24, 25, 26, 27, 28, 33, 39, 76, 77, 93, 94 trial, 49, 79 tribal, 53, 87

U U.S. Department of the Treasury, 77, 93 U.S. military, 70 Uniform Code of Military Justice, 49, 79 Uniform Crime Reports, 35, 81 United States, vii, 2, 9, 10, 23, 24, 25, 26, 28, 33, 34, 35, 38, 39, 42, 55, 60, 63, 66, 75, 77, 93 United States Attorneys, 9, 10, 25 urban areas, 91

V variation, 88 venue, 19 veterans, viii, 30, 31, 49, 50 victims, 2, 5, 37 violence, 34, 36, 39, 55, 56, 87, 90, 91 violent, 2, 6, 23, 34, 35, 36, 37, 52, 89 violent crime, 2, 23, 34, 35, 36, 37, 52 Violent Crime Control and Law Enforcement Act, 75 violent crimes, 2, 23, 36 VIP, 9 visa, 76 visible, 8 Vitter, 57 voice, 47 Voting Rights Act, 46

W Wall Street Journal, 80 warrants, 41 Washington Post, 79, 83 weapons, ix, 9, 30, 32, 33, 34, 35, 36, 39, 56, 65, 70, 71, 72, 75 wildlife, 51 Wisconsin, 77 witnesses, 5 women, 10 wrongdoing, 90

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