Gun Owners of America Comments on the Bureau of Alcohol, Tobacco and Firearms Proposed Regulations to Implement the Brady Law

Gun Owners of America (GOA), a not-for-profit association of more than 200,000 Americans devoted to preserving their firearms rights, submits the following comments on the Bureau of Alcohol, Tobacco and Firearms (BATF) proposed regulations to implement the Brady Law, Public Law 103-159.

Let us say, at the outset, that these proposed regulations-- and the Brady Law on which they are predicated-- are, in our opinion, unconstitutional under both the Second and Tenth Amendments. And GOA will continue to fight to restore constitutional principles in this respect in every legislative and judicial forum possible.

Having said that, even for those willing to accept the constitutionality of the underlying statute, these regulations go beyond what is required-- or even allowed-- by Public Law 103-159. In particular:

First: The "optional" space for the provision of a social security number is a transparent step toward the requirement that such information be provided. There is no guarantee in the regulations that a person who fails to provide his social security number will not face extra delays or be subjected to extra scrutiny. Even if there were such a guarantee, however, the history of the last fifty years has taught us that the "optional" provision of what has become a universal identifier is frequently only a first step toward the outright requirement that a social security number be submitted.

Nowhere in the Brady Law is the provision of a social security number mandated or even mentioned. 18 U.S.C. 926 allows BATF to promulgate only those rules and regulations necessary to carry out the provisions of Chapter 44, and the McClure-Volkmer Firearms Owners' Protection Act specifically prohibits the establishment of a system of firearms registration.

Unfortunately, this portion of the proposed regulation fails on both counts: By allowing firearms records to be easily accessed by a single nationally recognized identifier, it turns these records into a system of firearms registration. Furthermore, because the provision of a social security number goes beyond any requirement in Chapter 44 with respect to the information required to be contained in a Form 4473, this is not a rule or regulation "necessary to carry out the provisions of" Chapter 44.

Second: The requirement that a "state carry permit," in order to be an alternative to the Instant Check, can be issued only after an FBI check, is nowhere mandated by statute.

18 U.S.C. 922(t)(3)(A)requires that, in order to exempt a holder from the Instant Check, a state license must "be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by such other person would be in violation of law."

The notion that the information in your system constitutes "information available to such official" is a misreading of the statute and is clearly intended to give the federal government (1) approval power over the state issuance of carry licenses and (2) a list of all state carry license holders.

This overreaching beyond the statutory authority granted is both legally and morally suspect.

Third: The twenty year retention requirement for Forms 4473 submitted under the Instant Check is an unreasonably long period of time, given the other protections provided by that system.

If it is the BATF contention that the operation of this statute will keep firearms out of the hands of dangerous persons, then you should be willing to cut the unreasonably long time during which firearms records must be kept.

The fact that the BATF has not reduced the holding period for Forms 4473 suggests that you have no confidence that the Brady Law and its regulations will have the intended effect of keeping firearms out of the hands of prohibited persons.

Fourth: The requirement that an FFL holder conduct an FBI check prior to the loan of a firearm to be used off the premises-- in connection with a competition shoot, a gun club or other comparable purpose-- is overly broad and is not consistent with the underlying statute. Under this language, for example, a sports team might be required to conduct a new FBI check on every member prior to every trip to participate in a match, if the firearms used by the team are owned by a firearms licensee. Clearly, this requirement does not make sense, and is not required by or consistent with the underlying statute.

It is true that the poor draftsmanship in 18 U.S.C. 922(t) prohibits the "transfer" of a firearm without complying with the Instant Check requirement. It is also obvious that the word "transfer," in this context, was not intended to apply to such temporary and frequent transfers of firearms for short durations by gun clubs, sporting teams, and other comparable users.

Moreover, we feel compelled to take this opportunity to again comment on the absurdity of the BATF having yet additional authority over the lives of law-abiding citizens. The BATF has been a "rogue" or "out of control" agency since its inception. It has never gained the trust or confidence of the American people. And this is not just the characterization of GOA, but that of a host of prominent U.S. Senators and Representatives.1

1 See, e.g., Senate Committee on Appropriations, Oversight Hearings on Bureau of Alcohol, Tobacco and Firearms, 96th Cong., 1st Sess. (GPO; Washington, D.C; 1979); id., 96th Cong., 2d Sess. (GPO; Washington, D.C.; 1980); U.S. Senate, Committee on the Judiciary, Senate Report No. 97-476, Federal Firearms Owners Protection Act: Report of the Committee on the Judiciary, United States Senate, to Accompany S. 1030, together with Supplemental, Additional, and Minority Views, 97th Cong., 2d Sess. (GPO; Washington, D.C.; June 18, 1982); id., Senate Report No. 98-583, Federal Firearms Owners Protection Act: Report together with Additional and Supplemental Views, 98th Cong., 2d Sess. (GPO; Washington, D.C.; August 8, 1984); Colloquy, 131 Cong. Rec. 16984 - 17003 (June 24, 1985); U.S. House of Representatives, Judiciary Committee, House Report No. 99-495, Firearms Owners' Protection Act, 99th Cong., 2d Sess. (GPO; Washington, D.C.; March 14, 1986); Colloquy, 132 Cong. Rec. H1649 - H1803 (daily ed., April 9, 1986); Transcript of Joint Hearing of the Crime Subcommittee of the House Judiciary Committee and the National Security, International Affairs and Criminal Justice Subcommittee of the House Government Reform and Oversight Committee, Review of the Siege of the Branch Davidians' Compound in Waco, Texas, 104th Cong., 2d Sess. (Federal News Service; Washington, D.C.; July 19, 1995 - August 1, 1995); House Committee on the Judiciary and Committee on Government Reform and Oversight, Materials Relating to the Investigation into the Activities of Federal Law Enforcement Agencies toward the Branch Davidians, 104th Cong., 2d Sess. (GPO; Washington, D.C.; August 1996); Transcript of Hearing of the Senate Judiciary Committee, Federal Law Enforcement and the Good Ol' Boys Roundup (Federal News Service; Washington, D.C.; July 21, 1995); id., Federal Raid at Waco (Federal News Service; Washington, D.C.; October 31, November 1, 1995); Transcript of Hearing of the Terrorism, Technology, and Government Information Subcommittee of the Senate Judiciary Committee, Federal Raid in Idaho (Ruby Ridge) (Federal News Service; Washington, D.C.; September 6 - September 14, 1995). See also, David T. Hardy, The BATF's War on Civil Liberties: The Assault on Gun Owners (Second Amendment Foundation; Bellevue, Wash.; 1979).

Indeed, the BATF could consult official Department of Justice2 and Department of Treasury3 reports for affirmation of the obvious. And if executive and legislative branch authorities are deemed inadequate to prove the point, the plethora of reported judicial opinions detailing BATF misconduct might suffice.4

In short, then, these regulations are unconstitutional and overbroad. Moreover, the BATF, because of its history of misconduct and abuse, should not have more, but less, authority over the lives of decent, law-abiding citizens.

Therefore, it is the recommendation of GOA that BATF withdraw these regulations, or failing that, amend the regulations to eliminate the more egregious aspects until we succeed in legislatively or judicially eliminating this entire registration system.


2 E.g., U.S. Department of Justice, Report to the Attorney General on the Events at Waco, Texas, February 28 to April 19, 1993 (Washington, D.C.; October 8, 1993 (redacted version); U.S. Department of Justice, Office of Professional Responsibility, Department of Justice Report Regarding Internal Investigation of Shootings at Ruby Ridge, Idaho, During Arrest of Randy Weaver (undated; available on LEXIS Counsel Connect).

3 E.g., U.S. Department of the Treasury, Report of the Department of the Treasury on the Bureau of Alcohol, Tobacco and Firearms Investigation of Vernon Wayne Howell (GPO; Washington, D.C.; September 1993); U.S. Department of the Treasury, Office of Inspector General, Audit Report on Bureau of Alcohol, Tobacco and Firearms Accountability over Firearms (March 30, 1994) (BATF missing more of its own guns than the average dealer prosecuted for the same dereliction).

4 E.g., United States v. Bagley, 473 U.S. 667 (1985) (BATF entered contingent reward agreements with informant witnesses against the defendant which were withheld from the defendant at trial; informants submitted false affidavits regarding their compensation); United States v. Buchanan, 787 F.2d 477 (10th Cir. 1986) (sexual relationship between BATF case agent and defendant's former wife); Endicott v. United States, 869 F.2d 452 (9th Cir. 1989) (witness tampering and concealment of Brady material by BATF case agent); United States v. Gonzalez, 719 F.2d 1516 (11th Cir. 1983) (mistrial caused by BATF case agent's misleading failure to produce defendant's arrest record).