The “F” in ATF stands for “firearms,” and, in the matter of overseeing the sale of these, the ATF is a damned peculiar creature: It is a law enforcement agency dedicated to regulating transactions between federally screened, licensed sellers and a population of buyers from which serious criminals (felons, domestic abusers, those under indictment for such crimes) are excluded. It may not exactly shock you to learn that very few American criminals are carrying firearms legally purchased from a licensed retailer (murderers and armed robbers are not famously punctilious about lesser crimes) but just how small that share is may surprise you: It is less than 2 percent.
There are some other very small percentages that should be kept in mind. The share of U.S. firearms used in a homicide each year? About 0.005 percent, or about 1 in 20,000. The share of homicides carried out by means of so-called assault rifles? So small that the FBI doesn’t even bother to keep track, but estimates run as low as less than 2 percent. Your likelihood of being murdered with an AR-15-style rifle? Way less than a quarter of your odds of being stabbed to death and half your odds of being beaten to death by somebody’s bare hands. The number of legally owned fully automatic weapons that have been used in a murder since World War II? Small enough that you could count them on one hand—and the majority of those were committed by police or military personnel rather than by civilians.
It’s not that our society isn’t violent—it is, and extraordinarily so. But the character of the violence and the instruments by which that violence is carried out is both misunderstood and misrepresented, partly because our entertainment (from movies to video games) naturally leans into the depiction of cinematic weapons, partly because our gun policy discussions are hysterical and intellectually dishonest, and partly because we have a very strong bias toward the exotic and the unusual: The Discovery Channel has “Shark Week” every year, but you are orders of magnitude more likely to be killed by a bee or a cow. Similarly, the most common crime scene firearms sent to the ATF for tracing every year are the exact opposite of exotic, with .22-caliber rifles being the most common among the long guns and 9mm pistols the most common among handguns, according to ATF.
Never mind that so much of our recent high-profile violence was committed by non-firearms means—vehicular terrorism in New Orleans, that bomb in Las Vegas—or that our worst-ever school massacre involved no guns (the killer used explosives) and happened nearly a century ago. We often talk about firearms regulation as though only the ATF were standing between Americans and a Mad Max dystopia of roving gangs terrorizing our cities and suburbs with Kalashnikov rifles and hand grenades.
What if I told you that wasn’t, strictly speaking, true?
Do we need an ATF? There is a reasonable—and strong—case to be made that we do not. At least as far as the question of regulating firearms goes, much of what the ATF does is unnecessary, and its necessary work would be better done by other federal agencies or by states and municipalities. (Other items in the ATF portfolio, such as alcohol and explosives, are beyond my scope here.) The ATF is a hodgepodge agency that has been overseen by different departments over the years ranging from Treasury to Homeland Security—its agents and leaders by their own account really want to spend their energy fighting organized crime, but its main firearms-related activity is the regulation of sporting goods stores. And it is not clear that the agency fighting transnational drug cartels should also be the agency regulating Dick’s Sporting Goods. What is clear from the data is that the activities of licensed firearms retailers are only indirectly and tangentially related to violent crime at all. American gun shops are not a major provider of firearms to American criminals, with more than 90 percent of them getting their firearms from other sources, mainly through theft and black market sales.
(I’d love to share the ATF’s perspective on this with you, but the agency declined a half-dozen or so inquiries and requests for comment.)
That being stipulated, the purpose of this series is not to advocate a particular substantive model of firearms regulation, nor is it to advocate or oppose any particular body of gun control policies, though there will be some incidental presses in that direction. In the interest of full disclosure, I will note that I am deeply skeptical of most so-called gun control policies that are focused on the business practices of federally licensed firearms dealers (FFLs) and their customers, who are, by definition, among the most law-abiding people in the United States.
An FFL cannot sell a firearm to a person convicted of a felony or certain misdemeanors—including those involving domestic violence (such persons cannot legally purchase a firearm from any seller). Individuals under indictment for such crimes are similarly prohibited, as are fugitives from justice, those who have been found mentally incompetent by a court, those who have been dishonorably discharged from the military, illegal aliens, etc. It is illegal for an FFL to sell a person a firearm without performing a background check, and it is illegal for an FFL to sell an out-of-state buyer a firearm that is prohibited in the buyer’s state—and it falls on the FFL to know the states’ laws. While it is true that you can buy a firearm online, any licensed seller can ship those firearms only to another FFL, which then performs the necessary background check before releasing the firearm to a buyer. It is illegal to mail a handgun to a buyer, or to anybody else. Certain firearms require additional special measures to purchase. Despite what you hear about the laxity of U.S. firearms laws, they are extensive and comprehensive where licensed dealers and their customers are concerned.
It is possibly for that reason—though not necessarily for that reason—that firearms purchased from licensed retailers so rarely show up in crimes. According to 2019 figures from the Justice Department, less than 2 percent of incarcerated criminals were in possession of a firearm purchased from a licensed retailer at the time of the crime for which they were incarcerated. Of course, some criminals did not possess a firearm at all, but if you limit the data to those who had a firearm on them, it doesn’t change the outcome very much: Only 7 percent of criminals armed with guns got them through legal retail means, according to the DOJ. The great majority (56 percent) acquired their firearms through black market means or stole them; the remainder—and here we will just have to take the DOJ’s word that the appropriate level of skepticism has been applied to the criminals’ accounts—either found the gun at the scene of the crime, received it as a gift, or obtained it from a family member. And to address another source of common hysteria, fewer than 1 percent of such criminals obtained the firearm from a gun show.
The United States has much more violent crime than the countries of the European Union, the United Kingdom, Canada, Australia, or New Zealand. And, specifically, it has many more shootings and much more criminal use of firearms than those countries, though it has much more violent crime not involving firearms, too. Those facts should not be minimized, but neither should the role of firearms in American violence be overstated: The majority of those criminals in the DOJ study did not fire the gun at all during the course of the crime of which they were convicted, and only 1 in 4 state and federal prisoners serving time for violent felonies used a firearm in the course of their crimes. You may be surprised to learn that only a minority of those serving time for homicide used a firearm: 37 percent of state prisoners and 28 percent of federal prisoners. For all of the talk about so-called assault rifles, all rifles together accounted for only 364 murders in 2019, according to FBI data; for comparison, 600 people were beaten to death by a killer using his bare hands or stomped to death that year. Three times as many Americans were stabbed to death as killed with all rifles combined in 2019.
Again, these figures are not offered in a narrow spirit of advocacy, but for context. Suggestions that we modify the methods by which firearms are regulated in the United States—for example, by devolving the main authority for such regulation to states and municipalities—often are met with fearful responses based on the mistaken notion that the regulatory efforts of the ATF today are a bulwark against an even larger and more sprawling avalanche of violent crime in the United States than the one from which the country already suffers. But there is very little reason to assume that that is the case.
It is much more likely that, left to their own management, the states would produce different models of firearms regulation more narrowly tailored to local needs—and that should be a source of hope rather than a source of fear. For one thing, firearms regulations already vary widely across the country: Remarkably low-crime Vermont has had so-called constitutional carry (meaning that residents may carry a firearm without a special permit) for longer than there has been a federal constitution, and much of New England has relatively liberal firearms laws, whereas many of our highest-crime cities have very strict gun laws. And while it is likely that rural Oklahoma and Manhattan will end up with different rules—as should be the case—the major federal firearms prohibitions (of felons, of mentally ill people, of people under domestic violence restraining orders) have wide support and general political buy-in. It is not as though devolution would mean that the Texas Legislature would suddenly approve firearms sales to convicted murderers or to suspects under indictment for gang-related violent crimes or rape. It would mean that Texas would set—and enforce—Texas’s rules, within the capacious policy space of what is permissible under the Second Amendment.
To the extent that there would be a role for federal coordination, it is not clear that the ATF is needed, or that it would even be the best agency for the job. For example, the background check system used by retailers (NICS, the National Instant Criminal Background Check System) is maintained and operated not by the ATF but by the FBI, which provides background check services to 35 states, five territories, and the District of Columbia, with the remaining states performing their own.
So, what does the ATF really do, vis-à-vis firearms? While the agency’s culture has a very pronounced Wyatt Earp sensibility, the agency itself is best understood as a tax-collector.
For about 200 years, the United States of America got along without the Bureau of Alcohol, Tobacco, Firearms and Explosives. And, for much of that history, most Americans lived under a firearms-regulation regime that was relaxed or, in many places, effectively nonexistent. It is worth considering that there is a parallel between the Second Amendment and the First Amendment, with early firearms regulations often taking the same form as permissible restrictions on speech and other communication: time, place, and manner regulations. Americans had generally unrestricted rights to acquire firearms but might have been prohibited from carrying them in certain urban areas or restricted places (such as saloons) or while drunk, which was a real consideration in the hard-drinking 19th century.
The progenitors of the ATF were all fundamentally tax collectors and assistants to tax collectors. The earliest bureaucratic ancestor of the modern ATF was the Revenue Laboratory established within the Treasury by Congress in 1886, whose role was to examine alcoholic products (and suspected alcoholic products) to ensure that all of the necessary duties had been paid and that the products were otherwise in compliance with federal regulations.
As we have seen in other instances—notably in the case of the Affordable Care Act—when Congress cannot find a plausible constitutional basis for some action its members wish to undertake, that action often is repackaged as a tax, with the Supreme Court having long conceded congressional taxing authority to be effectively unlimited and plenipotentiary. Before the ratification of the 18th Amendment and the launching of Prohibition, federal alcohol regulation had largely been enacted through tax policy, to such an extent that in the early 20th century, as much as 40 percent of federal revenue came from taxes on alcohol. As documentarian Lynn Novick (Ken Burns’ partner in Prohibition) points out, it was the enactment of one keystone progressive policy—the income tax—that enabled Prohibition, another major progressive priority at the time.
A similar tax-as-regulation model has long been applied to firearms: To this day, the federal permission slip one needs to legally possess certain firearms (such as short-barreled rifles) or appliances (such as acoustic suppressors) is a tax stamp, certifying that some small tax ($200 for most items) has been paid. Of course, the revenue isn’t the point—ATF collects only about $100 million a year in revenue from taxes authorized by the National Firearms Act but has a budget of $1.4 billion. The point is creating regulatory burdens to keep Americans from doing things certain people in the government don’t want Americans to do without explicitly prohibiting those things, i.e. treating the power to tax as a backdoor to the power to regulate where that regulation might not otherwise pass constitutional muster.
I will give you a personal example: A couple of years ago, I bought a .45-caliber handgun that I wanted to put a shoulder stock on. Unless the barrel is at least 16 inches long, a handgun with a shoulder stock on it is a “short-barreled rifle,” one of those special categories of highly restricted weapons under the National Firearms Act. You can buy a firearm with the stock already attached, in which case you fill out one kind of form, pay the tax, and wait however many months (sometimes more than a year) for the ATF to give you your tax stamp; or, if you prefer (because it often is faster) you can buy the firearm and the stock separately and fill out a different ream of paperwork—one that makes you a firearms “manufacturer” whose manufacturing activity consists of fastening two screws one time—and pay your $200 and wait however many months it takes. You also have to get yourself fingerprinted, submit a passport-style photo, etc. I am a reasonably smart guy, and I didn’t get my manufacturing paperwork right on the first try—ATF rejected it. (My omission? I did not put “US” before the serial number.) If I fasten those screws without my tax stamp, I am a federal felon. I also have a wife, three jobs, and four children, and so doing the paperwork a second time has not risen to the top of my agenda in the year or more since then. And that is how you use regulation to enact a soft prohibition when you cannot enact a legal one.
ATF’s primitive regulatory ancestors were hatched at Treasury and moved around from department to department over the years until something like the modern agency was birthed within the IRS—as the Alcohol, Tobacco, and Firearms Division of the Internal Revenue Service—with the passage of the Gun Control Act of 1968. ATF became an independent bureau shortly thereafter, on July 1, 1972. The Homeland Security Act of 2002 moved ATF from Treasury back to Justice. And that may have had some real influence on how the agency does its business, inasmuch as the Justice Department is generally understood to be more political than Treasury, and more responsive to the political needs of the president.
And that matters.
The ATF Is an Arbitrary Regulator
Consider the saga of the forearm brace, a footlong bit of plastic that might or might not have made you a federal felon, depending on how the ATF is feeling on any given Wednesday morning. Set aside questions about guns and violent crime and think about this as an issue of administrative license being used as a substitute for law made by duly elected lawmakers.
The first thing you need to know about forearm braces is that they are … nonsense. I know I am going to hear from some disabled veteran writing to tell me that forearm braces made it possible for him to shoot again after suffering some terrible injury, and I am sure that is true. But forearm braces really were never about forearm braces. They were about short-barreled rifles (SBRs).
As described earlier in the series, putting a shoulder stock on a handgun with a barrel less than 16 inches long—notice the immediate descent into regulatory minutiae—makes it a short-barreled rifle under the National Firearms Act, and making or having or selling one without a special federal permission slip in the form of an ATF-issued tax stamp is a felonious no-no. If you go into a gun shop and look at these “handguns”—and they say “handgun” right there on the side, to prevent any federally felonious misunderstanding—the thing you’ll notice is that a lot of them don’t look like what you’re thinking of when you think of a handgun. They look like AR-15s or other rifles with shoulder stocks removed and short barrels. Because that is what they are. For example, conventional handguns generally have a magazine well within the grip, but many of these “handguns” have magazines in front of the trigger, as in the familiar AR-pattern rifle and most other semiautomatic rifles as well as many bolt-action rifles. The stock is gone, and you can’t put a new one on without a tax stamp. But you can—or could—put a forearm brace on. And if that forearm brace happened to be roughly in the shape of a folding rifle stock, and if it happened to be just the right size and shape to use as a rifle stock—in that case, then you’ve got your SBR in effect without having to go through the rigamarole with the pile of paperwork and the tax stamp and the fingerprinting and becoming a firearms manufacturer.
Of course, the forearm brace thing was nonsense, but it was ATF-approved nonsense, at least for a long time. Federally licensed firearms dealers are a conservative and risk-averse bunch, and they have to be: Lose that license and you’ve lost your business. You can’t have a gun shop that doesn’t sell guns. So FFLs asked ATF about the braces. Everybody probably kind of rolled their eyes, but braces got the green light.
That lasted until December 2020. (Joe Biden had won the election and Donald Trump was on his way out, but the executive power had not officially changed over yet.) That was when ATF—very possibly anticipating that the Biden administration would press it for more aggressive interpretations of the law—issued a notice that it was going to use its rulemaking authority to reclassify pistols with forearm braces as SBRs and, thus, as restricted items under the NFA. And then ATF changed its mind and withdrew the rule. Once the Biden administration was in place, Attorney General Merrick Garland signed rule 2021R-08, “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces,” which put handguns equipped with forearm braces back on the NFA naughty list if those handguns have “features inherent in shoulder-fired weapons.” What might those features be? The list is mostly subjective evaluations of the weight and length of the firearm as well as such ironclad empirical criteria as “information demonstrating the likely use of the weapon in the general community.”
(I should mention here that I contacted ATF several times over several months for comment on this essay, and the agency ignored those inquiries.)
The U.S. District Court in the Northern District of Texas (Amarillo) issued an injunction against the rule. The fight went up to the 5th Circuit and back down to the district court, and, ultimately, the rule was thrown out. The court ruled that the ATF’s actions had been “arbitrary and capricious,” which, of course, they were. As the opinion (edited lightly to remove legal citations, etc.) puts it:
For close to a decade, the ATF concluded that “attaching the brace to a firearm does not alter the classification of the firearm or subject the firearm to NFA control.” The ATF changed course on this position for the first time in 2023, when it issued the Final Rule reversing the agency’s otherwise long-standing policy. “When an agency changes course, as [the ATF] did here, it must ‘be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.’”
“It would be arbitrary and capricious to ignore such matters.” But this is exactly what Defendants did when they inexplicably and fundamentally switched their position on stabilizing braces without providing sufficient explanations and notice.
Under the Final Rule, the ATF estimated about 99% of pistols with stabilizing braces would be reclassified as NFA rifles. The ATF contemporaneously issued approximately sixty adjudications pursuant to the Final Rule that reclassified different configurations of firearms with stabilizing braces as NFA rifles. The ATF provided no explanations for how the agency came to these classifications and there is no “meaningful clarity about what constitutes an impermissible stabilizing brace.”
In fact, the Fifth Circuit “[could not] find a single given example of a pistol with a stabilizing brace that would constitute an NFA-exempt braced pistol.” Such “‘unexplained’ and ‘inconsistent’ positions” are arbitrary and capricious.
Even with the question notionally settled in favor of permitting the sale of handguns with braces, there are many retailers who will not sell those weapons. They are worried that the legal status of such firearms will once again change—possibly in an arbitrary and capricious way—and a lot of those retailers are small businesses that do not want to order $50,000 worth of merchandise they are not sure they can sell.
Arbitrary and capricious, yes. But far from unpredictable, and not without a sense of being politically directed. Directed toward what and why isn’t always exactly clear: Nobody who knows the first thing about firearms really understands why we are fighting about short-barreled rifles. The short-barreled kind isn’t any more dangerous than the long-barreled kind. If anything, short-barreled rifles are a little less dangerous than their long-barreled counterparts, because bullets coming out of shorter barrels generally move a bit more slowly than those coming out of longer barrels (the physics here gets a little complicated, and sometimes it doesn’t make very much difference, but it is generally true) and hence are carrying less energy, and short-barreled rifles are a little more difficult to shoot accurately than are longer-barreled rifles. (Do you know who is happy that long-barreled, well-tuned, bolt-action rifles haven’t become a fetish object the way more compact AR-style rifles have? Donald Trump.) But that gets into a whole other consideration that we’ll get into later: The most powerful firearms in private hands in the United States are—by far—relatively common hunting rifles and big-game rifles that hardly ever even enter the gun-control conversation. Supposedly, the case for treating SBRs as a special dangerous class of weapons has to do with concealability, which is pretty silly: Criminals do care about concealability, which is why the overwhelming majority of criminal gun use in the United States involves ordinary handguns. Yes, a rifle with a 12-inch barrel is easier to conceal than the same rifle with a 16-inch barrel, but neither is as easy to stuff into the glovebox or down your pants as an old-fashioned pistol.
But there is a kind of mirroring effect at work: The regulators fetishize what the gun nuts fetishize, and the gun nuts want what the regulators don’t want them to want. And that’s really the story with SBRs, which are used in violent crimes only vanishingly rarely. And thus did millions of law-abiding Americans became felons—or had to scramble to avoid becoming felons—without anybody having passed a law. When libertarian types complain about the unpredictable convulsions of the administrative state, that is what they are talking about. Arbitrary and capricious, sure.
But also vindictive.
“There’s so much gray,” says J.D. “I want black and white.” J.D. is irritated enough by the ATF to talk to the press about it and worried enough to request anonymity. Guns are not his entire business, but they are about 40 percent of it, and the economy is not going gangbusters in his particular corner of these fruited plains. COVID lockdowns wiped out the business he owned before his current one, and gun sales are not great for him right now, either. If you want a leading economic indicator for life in rural or small-town America, ask a gun dealer how many new firearms he’s selling—or a pawnbroker how many used ones he is buying.
J.D. cannot afford uncertainty. It is a tax that takes food off his table.
“Take the braces—so much gray,” he tells me. “Is it legal? Is it not? If I receive a transfer from GunBroker [a popular online gun shop], do I need to yank that brace off there immediately? Once that started getting wrapped up in litigation, that’s where I was left as a dealer going ‘No! No! No!’ I don’t even want it in here, even though it may have been legally perfectly fine at the time. It was gray.”
For J.D., regulatory uncertainty means passing up sales—not only of firearms but also of services. Here is a thing you may not know: Anything that goes into a federally licensed firearms dealer (FFL) for repairs becomes, as a legal matter, the FFL’s responsibility if it stays in the business’s custody for 24 hours. If that happens, then the shop has to do a background check and a legal transfer before returning the repaired firearm to the customer, as though it were selling it for the first time. J.D. does some basic repairs and work, and he could do a lot more, but he doesn’t want the risk—and he doesn’t want to charge his customers what amounts to a penalty to cover his regulatory hassles. “We charge $25 for a transfer,” he says. “What am I going to do? Charge $30 for a $5 part that takes five minutes to put in? I’d like to do more of that kind of work, but it feels wrong, and, if I start screwing people, they’re not going to come in here.”
Another stymied part of J.D.’s business is transfers. As mentioned earlier in the series, you can buy a firearm online, but it will go to an FFL, who will put you through the background check and paperwork as though he were selling you the firearm himself—which, in effect, he is. Many small businesses such as J.D.’s supplement their incomes that way, and a few businesses are really just transfer agents, receiving shipments and running background checks, performing transfers for a fee with no inventory of their own.
But there are risks.
As also mentioned earlier, an FFL can get into trouble if he transfers a firearm that is perfectly legal in his state to a resident of another state in which the item is prohibited. A lot of dealers in places with transient populations—college towns, towns near military bases, etc.—make a lot of sales to people with out-of-state IDs, but it is a risk. J.D. won’t do it at all. If somebody shows up to pick up a transfer with an out-of-state ID, he gives them six months to become a resident of his state and pick up the firearm, after which he charges them “rent” on the item, in the form of a percentage of its value, until that rent reaches the firearm’s value, at which point J.D. sells it. There isn’t much he can do: He isn’t going to risk the out-of-state sale and generally can’t send it back to the original vendor under the terms of the sale. At any given time, his little shop is home to some amount of effectively unsellable inventory.
“That’s how they got rid of 80-percent receivers, too,” he says. He is talking about the partially finished receivers—the main body of the firearm to which most of the other components are attached—that are purchased by hobbyists building their own firearms, which is a perfectly legal thing to do. There are people who do not want that to be a perfectly legal thing to do, but those people have not yet succeeded in passing a law against it. They can still make it difficult and risky to engage in the business, though. “They [the ATF] put that on the dealer. I can sell you an 80-percent gun, but then I have 30 days to report to the ATF what serial number you put on [the finished firearm]. That’s on me, not on you. It’s pretty smart on their side. Sneaky.”
J.D. would also like to get into the business of selling suppressors, which are another “National Firearms Act item” under U.S. law. Because so many people think that suppressors in the real world perform like they do in James Bond movies—a discreet “pew! pew!”—Americans have to jump through bureaucratic hoops to buy safety gear that is sold over the counter in many European countries and required at some European gun ranges. In reality, suppressed firearms are often still so loud that you cannot fire them safely without hearing protection—the suppressors do reduce the sound, but they do not eliminate it or, in most cases, even reduce it as much as inexperienced people would expect. Suppressors are a pretty good business, but dealing in them would require J.D. to get a different kind of license than the one he already has and, so far, he hasn’t judged it worth the hassle.
Think about that for a second: This is a small-business owner who has gone through a thorough federal background check selling common sporting goods to people who go through federal background checks, customers who have clean criminal and mental-health records, and he is passing up business—both in merchandise and in services—purely for regulatory reasons. And, in some cases, he is responding to legal burdens that nobody ever voted for and that Congress never passed—purely administrative creations like the pistol-brace rule.
If J.D. were a baker selling organic croissants in downtown Washington, D.C., and having to tell his customers that he would like to sell them coffee and muffins but can’t because of some legal ambiguity in the high-carbohydrate assault-pastry industry, people would get why that’s a problem. They might not necessarily take the next step and support the kind of reform agenda that is top of mind for libertarian critics of the administrative state, but they would understand the economic problem with that kind of uncertainty and regulatory ad-hocracy. But even though there are good-faith actors on the prohibitionist side, in the most fundamental sense gun regulation isn’t about crime or public safety—it is almost purely a culture-war industry, and the partisans on the other side despise people such as J.D. and his customers. Every time one of them goes out of business, they do a little happy dance.
Hence the Biden administration’s “zero tolerance” policy at the ATF.
But for Some Flubbed Paperwork…
Here is an interesting story about how gun regulations really work.
A man walks into a gun shop and buys a gun. He fills out his paperwork and starts the background check. Those background checks do not always go as quickly as you might expect: Sometimes the results are instantaneous, sometimes they take hours or even days.
I have some personal experience with this. Every now and then I get an instant approval, but in the great majority of cases, my background checks go into “research,” meaning that the transaction is delayed for a few hours or, in some cases, for days or weeks. What that means, practically, is that I often fill out my paperwork, leave the shop, and then come back later in the day, or the next day, when I have Uncle Sam’s permission to take home the item I have just purchased. (I suspect that the issue is that I have a fairly common name and have had a bunch of home addresses over the years. But it could be anything.) And for some reason—probably that reason—the guy in our story left without his gun that day. He wasn’t a prohibited buyer; he passed the background check just fine. It just took a while. And so he rolled back in a few weeks later and picked up his pistol or his rifle or whatever and went home. No problem.
Except that the store seems to have made the mistake of employing an English major, who got his date calculations flubbed and let the firearm go on the 31st day after the original background check was submitted. Anything past 30 days, and you are required to start from scratch with the background check. A few days later, the mistake was discovered by the back office, and so the shop did the right thing: They called up their customer, explained their error, persuaded him to bring the firearm back in, took custody of it, resubmitted his background check, and gave him the weapon when he passed it again. Rules are rules and the mistake was an actual mistake, but it was a minor one involving a guy who had just passed a background check and who was not a prohibited buyer.
But the shop almost lost its license over it. In fact, it might very well have if not for the fact that the business in question is a big-box chain that can afford good lawyers and probably has some political connections.
Dealers all over the country are reporting the same thing. Minor infractions that once would have resulted in a warning letter are now being used as pretexts to revoke retailers’ licenses. Sen. Joni Ernst, an Iowa Republican, was concerned enough about aggressive new ATF practices that she wrote up a bill to try to reel them in (though apparently not concerned enough to speak to your favorite correspondent about it—she and her staff refused interview requests and declined to answer questions in writing. With friends like these …). In 2022, there were 88 licensure revocations; in 2023, there were 157. (In the last six months of 2021, there were only five.) Another 165 FFLs kept their licenses but were put through revocation hearings.
We aren’t talking about dirty dealers diverting weapons to gangs or the black market here. Not in the vast majority of the cases. I spent a few days reading through ATF revocation reports, and I have a hard time imagining that any of these actions had any effect at all on violent crime. A typical case is that of a small business in Texas—an Ace Hardware shop that sells some firearms—run by a fellow who doesn’t seem to be very good with computers. The guy was having his customers fill out their forms electronically, printing out a copy for them to sign, and then printing out another form for his records after the transaction was completed. The thing is, ATF forms have individual serial numbers, and he was mixing up the pages, basically using three different forms to produce one complete one. His electronic system was old and out of compliance with current regulations, and some of his records were still kept in hard copy. The guy wasn’t selling guns to prohibited parties—he was just a hardware-shop owner who got confused by the computer system and paperwork and couldn’t get himself squared away. So he lost his license.
And maybe he should have. But taking away his license is not going to make anybody in this country safer from armed criminals, who do not get their guns after passing a background check at an Ace Hardware in Nocona, Texas.
We see license revocations happening in response to that sort of thing. For example, people with concealed-carry permits do not need to go through background checks to buy a gun (the idea being that the background check for the license was sufficient) but you can’t accept an out-of-state license. As one industry insider tells me, part of the issue is that the ATF revokes licenses for “willful” violations of regulations, but there is no statutory definition of “willful” and “courts have interpreted it very broadly” when ATF goes after a dealer. “Where’s the public safety risk?” he asks. “It’s a mistake, but there’s no real risk. But they’ll go after the license. In the past, that didn’t happen.”
“The top of our wish list would be that they do away with the counterproductive zero-tolerance policy, which is harming the relationship between the ATF and the industry,” says Lawrence Keane, senior vice president for government affairs at the National Shooting Sports Foundation, an industry group. “ATF acknowledges that the industry has cooperated with them to get bad guys—trigger-pullers. On the regulatory side, they need to develop a culture of customer service, something more like the industry’s experience with NICS [the National Instant Criminal Background Check System]. Unfortunately, there isn’t a culture of that. We’d also like to see them make better use of technology.”
ATF has a funny attitude toward technology. The agency long resisted developing electronic background-check forms. When it finally did so, it rejected an industry model that would have automatically blocked the submission of forms in which a would-be buyer had answered a question in a disqualifying way. Keane, who was involved in the project, was puzzled by that choice. But then he figured it out: “ATF didn’t want to do that because they wanted to create evidence for criminal prosecutions—that was their answer, rather than stopping transactions in the first place.” Keane would like to see a more customer-oriented ATF, but he is skeptical of proposals for radical reform. “We’ve never supported disbanding the ATF,” he said. “We’re not sure it would be beneficial to the industry to have Homeland Security or the FBI, agencies with no real experience being a regulator, fill that role.”
That regulatory burden sits heavily on retailers, but it also sits heavily on something less frequently appreciated: a much-welcomed bright spot in old-fashioned American manufacturing.
American gunmakers are thriving, and even overseas firms such as Austria’s Glock and the Swiss-German gunmaker SIG Sauer have made large investments in manufacturing in the United States. Some European firms have U.S. subsidiaries that are bigger than their mother companies. “There’s been tremendous growth in manufacturing in the past several years,” Keane says. That’s been driven by soaring demand. There will often be spikes in demand followed by declines back to something closer to historical levels. But while the COVID-era spike in gun sales has moderated somewhat, sales remain significantly higher than before COVID.
“We come off the peaks, but the valley is higher than before,” Keane says. “There is more diversity in the customer base than there was 20 years ago, and manufacturing has shifted here. There’s a healthy import-export market, with [Glock products] made in the United States and exported back to Austria, for example.” Keane says manufacturers have a generally good relationship with ATF, but there are persistent problems, too: “We don’t get clear answers from them. We get a lot of talk, but we don’t always get real answers to real questions. They need to stop moving the goalposts” on regulatory interpretations.
Manufacturers are hesitant to speak about ATF at all, even off the record. But industry sources say that while they often have positive relationships with the ATF personnel with whom they interact, they also get the impression that decisions are really being driven by more senior people at the DOJ and that political calculations, not public safety, dominate. “We have regulators whose bosses want us to go out of business,” one executive says.
That political pressure is felt outside of government, too. Ruger, one of the largest firearms manufacturers in the United States, has been debanked on more than one occasion. In a 2023 quarterly statement, the firm reported that “we have been notified twice in the past five years by two of the nation’s largest banks, Bank of America and Wells Fargo, that they would not provide us with any credit because of the lawful products that we design, manufacture and sell.”
This analysis has been republished with permission from The Dispatch. It is the product of Kevin Williamson’s work with the Competitive Enterprise Institute.
