Gun Group Loses Challenge to ATF Tracking Near MexicoTom Schoenberg
A gun-rights organization and two Arizona firearms dealers lost their bid to block the U.S. from tracking multiple sales of military-style assault weapons in states bordering Mexico.
A three-judge panel of the U.S. Court of Appeals in Washington today rejected arguments by the National Shooting Sports Foundation Inc. that compelling reports from retailers in the four states is illegal under federal law, and the dealers’ claim that it violates a ban on the government’s creating a national firearm database.
The reports “required information on only a small number of transactions” and “does not come close to creating a ‘national firearms registry,’” U.S. Circuit Judge Karen LeCraft Henderson wrote. The reporting demand by the Bureau of Alcohol, Tobacco, Firearms and Explosives applies to about 8,500 dealers in Texas, California, New Mexico and Arizona.
A new regulation on sales took effect in August 2011. The ATF sent a letter a month earlier to dealers in the four states requiring them to report sales of multiple weapons to unlicensed buyers, including sales of more than one such rifle to the same buyer within five business days. The ATF said the information is needed to help trace guns used by Mexican drug gangs.
The gun group and the Arizona dealers who sued the ATF last year said the government hasn’t shown that the information it wants is part of a “bona fide criminal investigation,” as required by U.S. law.
“We’re particularly disappointed that the court essentially ignored the statutory language Congress enacted,” Richard Gardiner, a lawyer for the gun dealers, said in an interview. “The court’s opinion suggested that alleged problems with tracing firearms to Mexico somehow justified ignoring the statute.”
Gardiner said he is reviewing the decision and hasn’t decided whether to appeal. He said he has two similar cases awaiting decisions in other federal appeals courts.
“We respectfully disagree with the court and do not believe Congress intended to provide regulatory carte blanche to the ATF,” Lawrence Keane, general counsel for the National Shooting Sports Foundation, said in an interview.
The foundation, based in Newtown, Connecticut, three miles from the school where 20 first-graders were massacred, has a membership of more than 8,000, according to its website. They include gun makers, distributors and retailers, as well as shooting ranges, sportsmen’s organizations and publishers, the group says.
The manufacturers include Smith & Wesson Holding Corp. and Cerberus Capital Management LP’s Freedom Group Inc., the largest U.S. gun maker.
Rifles covered by the ATF plan are those capable of accepting a magazine with a caliber greater than 0.22 inches, like the Bushmaster AR-15.
ATF argues that multiple-sales reports enable it to identify the buyer of a gun used in a crime quickly and help generate investigative leads about straw buyers and trafficking patterns.
Since 1975, licensed dealers have been required to report multiple sales of pistols and revolvers to each unlicensed buyer during a five-day period, ATF lawyers said.
The ATF’s gun-tracing plan came in response to reports by its inspector general and the U.S. Government Accountability Office about the flow of guns to Mexico. About 70 percent of the firearms seized in Mexico and traced from 2004 to 2008 were from Texas, California and Arizona, the GAO reported in 2009.
The court today also rejected arguments that the regulation requires gun dealers to create a new record system because they don’t track whether the weapon is semi-automatic or the type of ammunition used.
Gardiner, the dealers’ lawyer, told the court in January that the ATF rules create confusion because a weapon’s model number doesn’t say whether it is semi-automatic.
The argument that a person who buys and sells firearms for a living “would price and sell rifles without knowing its type of action and ammunition feeding source blinks reality,” Henderson said in the opinion.
The judge said that searching records for multiple sales of a specific type of firearm to the same customer is nothing new for dealers, referring to the 1975 requirement.
The court said the challengers couldn’t point to any evidence in the record that narrowing the geographic scope of the tracking to specific dealers in each state was a serious issue raised by those who commented on the ATF’s proposal.
The other judges on the panel were Harry Edwards and Judith Rogers.
Henderson, who was appointed to the appeals court by Republican President George H.W. Bush, cast a dissenting vote in the court’s 2007 decision striking down Washington’s gun ban. In 2011 she was on a panel that found the District of Columbia’s gun-registration requirements and its ban on assault rifles and large-capacity magazines to be constitutional.
The case is National Shooting Sports Foundation Inc. v. Jones, 12-5009, U.S. Court of Appeals for the District of Columbia (Washington).