Posts tagged ‘ATF’


Remember, gentle reader, that under federal law, “firearm” has a very specific definition

by wfgodbold

A firearm is:

(1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of Title 18, United States Code); and (8) a destructive device.

Under federal law, all such “firearms” must be registered. From the definition, regular handguns, rifles, and shotguns are not included. Only short-barreled rifles & shotguns, machine guns, silencers, destructive devices, and AOWs are “firearms.” Possession of unregistered firearms is a felony punishable by up to ten years in prison and/or a fine of up to $10,000.

So when you read, gentle reader, that President Obama has pardoned someone for “possession of an unregistered firearm,” it means that the person pardoned had either a short-barreled rifle/shotgun, a machine gun, a silencer, a destructive device, or an AOW that was not registered with the ATF.

Now, it could be that Obama now thinks that heavily restricting the possession of firearms is a bad idea. If so, I agree, and I look forward to any proposal for repealing the NFA the president brings forward. Suppressors are great safety devices, and short barrels make rifles far less unwieldy. I shouldn’t have to pay a $200 tax stamp to the government to possess them, and I certainly shouldn’t be prevented from lending them to friends or family (I’m not even going to address the ridiculous necessity of gun trusts the NFA has foisted on us).

Considering Obama’s continued push for standard capacity magazine bans and a reinstatement of the ban on so-called assault weapons, I doubt that’s the case.


[Ir]Rational Basis

by wfgodbold

Via Sebastian and Prof. Volokh, we learn that the Fifth Circuit held in NRA v. BATF that the federal statute forbidding FFL sales of handguns to 18-20 year olds is constitutional.*0

I’m not going to delve into the analysis here,*1 but the Court eventually decides that,

In harmony with well-developed principles that have guided our interpretation of the First Amendment, we believe that a law impinging upon the Second Amendment right must be reviewed under a properly tuned level of scrutiny—i.e., a level that is proportionate to the severity of the burden that the law imposes on the right.*2

The Court applies intermediate scrutiny, and ultimately holds that the prohibition on FFL sales of handguns to 18-20 year olds is constitutional (there is a “reasonable fit between the law and an important government objective”*3). Congress determined that the purchase of handguns by minors*4 is a safety problem (in that it exacerbates their impulsive, violent tendencies, or something), and that prohibiting such purposes is the best way to address that problem is to prevent FFLs from selling handguns to minors.*5 The Court lays out this determination and Congress’s narrow response to it succinctly:

Overall, the government has marshaled evidence showing that Congress was focused on a particular problem: young persons under 21, who are immature and prone to violence, easily accessing handguns, which facilitate violent crime, primarily by way of FFLs. Accordingly, Congress restricted the ability of young persons under 21 to purchase handguns from FFLs. [emphasis in original]*6

The Court defers to Congress’s determination, and upholds 18 U.S.C. § 922 (b)(1)’s prohibition on FFL sales of handguns to those under 21. The government interest is sufficiently narrow, and the means are reasonably adapted to that interest, so intermediate scrutiny is no bar.

The Court then looks at the NRA’s claim as an equal protection matter, and that claim fails under rational basis review (because, unlike race or sex, age is not a suspect classification*7).*8

However, possession/ownership of handguns by those aged 18-20 is (in most states, and under federal law) not illegal. Congress only prohibited (and only intended to prohibit) those persons from buying their handguns through FFLs. If you’re 18 and you receive a handgun as a gift, you’re fine.*9 If you’re 19 and you buy a handgun from a private person, you’re still fine.*10

Hell, you can even tell someone 21 or older to buy the handgun and then pay them for it!*11

Well, two out of three ain’t bad, I guess.*12

So it’s legal for 18-20 year olds to possess handguns, but it’s illegal for them to actually try to buy them from an FFL, or to get someone else to buy them from an FFL.

If you’re 18-20, I hope you know someone who’s generous or looking to sell a handgun they already have – if not, there’s not really any other way for you to legally acquire one.*13

Ladies and Gentlemen, I give you “irrational basis.”*14

*0 Just for the record, I’m still a law student. None of this is legal advice. If you take any of this as legal advice, then on your own head be it.

*1 For reasons I am not currently willing to go into, but will eventually explain. In mid-March/April of 2013, I think.

*2 N.R.A. v. B.A.T.F., No. 11-10959, slip op. at 18 (5th Cir. 2012).

*3 Id. at 33.

*4 The Court in N.R.A. looks at age of majority throughout common law history and determines that it has traditionally and historically began at 21.

*5 And lo, the 1968 GCA and its prohibition on FFL handgun sales to minors heralded the end of youthful violence, and an era of peace and goodwill towards all descended upon the land. Truly, we live in an enlightened age.

*6 Id. at 35.

*7 Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000).

*8 N.R.A. at 40.

*9  So long as you’re not a prohibited person and it’s legal in your jurisdiction, of course.

*10 Same disclaimer as before, but with an added disclaimer about the legality of private sales in your jurisdiction.

*11 DO NOT DO THIS. This is a felony straw purchase, and both you (the actual buyer) and the person you get to buy it for you (the straw buyer) will be awarded an all-expenses paid trip to federal prison. Again, DO NOT DO THIS.

*12 Now, aren’t you glad I didn’t link to a Meat Loaf song?

*13 It’s like if  18-20 year olds could possess/drink booze, but were prohibited from buying it or getting others to buy it for them. Sure, it’s technically legal, but it’s a major PITA to actually do what you’re legally entitled to do.

*14 It’s the Chewbacca defense of standards of scrutiny!


I’ve thought of some ways Congress can help Holder stem the flow of guns to Mexico…

by wfgodbold
I’ve even numbered them (with small numbers, so they’re more easily understood); all they have to do is pick one!
  1. Abolish the ATF. My personal favorite. If there’s no ATF, then there’s no agency to lean on FFL dealers and pressure them to sell guns to known straw purchasers against their will.
  2. Defund the ATF. Cut them down to the bare minimum needed to process NFA paperwork, and they won’t be able to afford to pay the idiots who thought this plan was a good idea.
  3. Appoint a special prosecutor to charge everyone person in the ATF and DOJ involved in Fast and Furious; if the people responsible for overseeing them can’t do their jobs, bring them up on charges and throw them in jail. Especially if they’re actively breaking the law instead of enforcing it.

For some reason, I don’t think any of these are what the New York Times and Holder have in mind…

The attorney general apparently did his damnedest to conflate Fast and Furious with Operation Wide Receiver (Andrew McCarthy goes into detail on how exactly the two programs differed (substantially, as it turnes out (for example, in Wide Receiver, ~350 guns were involved and the US had the cooperation of the Mexican government; in Fast and Furious, more than 2000 guns were involved, and the Mexican government was completely in the dark))).

The paper of making up the record* (and Holder as well) are also incredulous that many are opposed to the ATF’s proposed multiple long gun purchase registration requirement; the only problem with that is that it’s illegal.

It was also nice to see someone publicly refute the Mexican Gun Canard:

By comparison, Mr. Holder and Senator Dianne Feinstein, Democrat of California, noted statistics showing that of the nearly 100,000 guns that were seized in Mexico and traced in recent years, about two-thirds originated in the United States.

Mr. Grassley said those numbers were “faulty” as a portrayal of the smuggling of weapons that had been sold in a retail store in the United States. They include weapons that had originally been sold to the Mexican military, weapons that were transferred into Mexico many years ago, Fast and Furious guns, and firearms from other sources, he said.

If anything about Fast and Furious was botched, it’s that this effort at under the radar gun control failed so spectacularly. If the ATF had had their way, they’d probably just use this as “proof” gun stores are arming the cartels and that we need more gun control to combat them. As it is, the ATF and DOJ look like incompetent fools and still are crying for more gun control.

Not going to happen.

*Say Uncle can certainly coin a phrase.


More truth in political cartoons

by wfgodbold

From Michael Ramirezvia Say Uncle:

If Watergate had been this bad, the press would have been trampling each other in the rush to get the next big scoop.

Instead, we get crickets.


Those damn gun owners!

by wfgodbold

Operation Fast and Furious is all their fault*!

The LA Times even trots out gun control shill Dennis Henigan:

“The bottom line is the gun lobby will oppose any nominee who promises to be a strong and effective director of the ATF,” said Dennis Henigan, vice president of the Brady Center to Prevent Gun Violence. “Fast and Furious is what happens when you don’t have a strong director,” he said.

Apparently only strong directors will actually obey the law. Weak directors ignore it!

I suppose that does explain the multiple long gun sale reporting requirement

*Pay no attention to the White House emails discussing Fast and Furious. They’re irrelevant.


That’s some interesting logic…

by wfgodbold

Fast and Furious was a failure right from the beginning:

Five months into the surveillance effort — dubbed Operation Fast and Furious — no indictments had been announced and no charges were immediately expected. Worse, the weapons had turned up at crime scenes in Mexico and the ATF official was worried that someone in the United States could be hurt next.

The LA Times goes on to give a bit of background information on Fast and Furious:

Fast and Furious was a highly secret undercover program begun with great ambition. The border was out of control, and the new Obama administration wanted to stop U.S. guns from crossing into Mexico and arming drug cartels.

We had to arm the cartels in order to disarm the cartels, I guess.

I’m not sure if the article is an indictment of the operation or a cry for more funding for the ATF, especially with their claim that the only reason the ATF failed to track each weapon was because it didn’t have enough resources.

The piece does a pretty good job of highlighting the complete incompetence of the ATF at every step of Fast and Furious, from its conception to its implementation to the inevitable conclusion.


How do you respond to ridiculous arguments?

by wfgodbold

With ridicule, of course.

NRA executive VP Wayne LaPierre brings ridicule in spades in his response to yesterday’s USA Today unsigned editorial on gun control (H/T Say Uncle).

The multiple long gun form is unlawful.

Even if it were lawful, it would probably be just as ineffective as the multiple hand gun purchase form was; the USA Today editorial begins with the story of a man who illegally purchased dozens of guns in AZ for resale in CA for two years before the he was finally caught.

As LaPierre points out:

The cartels run a $40 billion enterprise. They flood our neighborhoods with drugs. They rape and torture and murder. They feed their enemies to lions.

The cartels get their machine guns, grenades, missile launchers and tanks from Russia, China and South America. State Department cables, released byWikiLeaks, prove it. But the administration wants the public to believe that it’s going to disarm cartels with a form? Who is the president kidding?

Read the whole thing.


Proof that the government can always outperform even the most cynical of projections…

by wfgodbold

At the beginning of July, I said:

I look forward to the day when we learn that all organized crime is actually perpetrated by various undercover agents infiltrating each others’ organizations to get to the bottom of organized crime.

And now it turns out that I was right?*

Via Say Uncle:

U.S. federal agents allegedly allowed the Sinaloa drug cartel to traffic several tons of cocaine into the United States in exchange for information about rival cartels, according to court documents filed in a U.S. federal court.

This is insane. Why do we pay these idiots?

*I mean, of course I was right! I’m always right!


Apparently we on the right never criticize the police

by wfgodbold

And reserve our ire for teachers, instead.

Lawrence O’Donnell of MSNBC said:

The worst teacher in America could never do as much damage as the worst police officer in America. But the right wing has never even been slightly curious about evaluating the job performance of police officers. Never once has Republican world said hey, maybe we should look into how police officers are carrying out their solemn public responsibility to serve and protect.

No — no right wing website in America is investigating or will ever investigate how well police officers do their jobs. [emphasis added at Reason]

That’s news to me. And it would be news to the people writing at Reason, to Radley Balko, and to the many gunbloggers out there who keep posting about the crazy shit cops get away with.

And that would certainly be news to everyone looking in to Fast and Furious. Hell, the only people interested in investigating the ATF (or do they not count as cops?) are on the right.

Is this that epistemic closure thing I keep hearing about?


The plot thickens…

by wfgodbold

Apparently the White House did know about Fast and Furious. The ATF special agent in charge of the Phoenix office told the National Security Director for North America about the operation because,

“He was asking about the impact of Project Gunrunner to brief people in preparation for a trip to Mexico… what we were doing to combat firearms trafficking and other issues.”

Obviously Operation Fast and Furious only falls under that umbrella in the loosest definition of “combat firearms trafficking” you can come up with; as we’ve seen in the past couple of months, the ATF was more enabling firearms trafficking than actually combatting it. Hell, they were even letting convicted felons buy guns as part of this “program.”

And now Congress’s report has accused the ATF of arming Mexican cartels for war. When guns you allow to be sold to known straw purchasers take less than 24 hours to get from the point of sale to the scene of the crime, then your lame attempt to “combat firearms trafficking” isn’t working at all.

Heads are going to roll because of this. For many Mexicans and Americans living near the border, they already have.

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