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Monday, October 31, 2022

OPINION:

When President Biden declared war on “rogue firearm dealers” in the summer of 2021, it wasn’t to target stores that were serving as pipelines to send guns to criminals and cartels. In reality — based on internal memoranda and ATF practices over the past year — Mr. Biden was declaring war on gun dealers that commit inadvertent paperwork errors when processing firearm transactions.

This new policy has resulted, by some estimates, in a fivefold increase in the number of gun dealers having their licenses to sell firearms revoked — even if they never sold a gun to someone who was not legally allowed to purchase one.


Here’s how it works: Most gun buyers have filled out Form 4473, which is a questionnaire must complete the ensure they may legally purchase a firearm. The store then submitted that 4473 to the FBI, which ran it through the National Instant Criminal Background Check System. Depending on the results of that check, the dealer was authorized to proceed, delay or deny the transaction.

The purpose of Form 4473 is to help ensure that guns are not purchased by “prohibited persons” — which generally means criminals, children, and the insane. The form contains 93 questions the would-be purchaser and the gun dealer must answer. Any incorrect or incomplete answers are technically a violation of the Gun Control Act of 1968, giving the Biden administration an excuse to crack down on the dealer.

But Congress did not intend for minor paperwork errors to result in license revocation. That is why the Gun Control Act allows revocation  over only “willful” violations, rather than inadvertent or accidental ones.

This is consistent with the purpose of the act (preventing prohibited persons from obtaining firearms) and also with an understanding of the limitations of human beings. A medium-sized firearm dealer might sell around 5,000 firearms in a given year. With 93 questions per Form 4473, that equals almost 500,000 data points the store must collect every year. If strict compliance were required under the law, then almost no firearm dealers could remain open.

But strict compliance is not demanded by the law, and the Bureau of Alcohol, Tobacco, Firearms and Explosives’ historical practices have reflected this appropriately. Gun dealers are subject to periodic inspection of their sales records by the ATF. Typically, those audits would find a few dozen paperwork errors. Those errors would be noted in a report of violations, and corrective actions would be suggested for the licensee to undertake before the next inspection.

Not anymore. Under a new policy implemented last summer, the ATF is now recommending revocations over simple paperwork errors, even when those errors did not result in prohibited individuals from obtaining firearms. By some estimates, this has resulted in revocations increasing by more than 500%.

For example, in Florida, a multigenerational firearm dealer — JM Gun Repair — had its license revoked earlier this year based on simple paperwork errors. These include mistakes as innocuous as a buyer filling out the “County” blank by writing “USA,” having mistaken it for “Country.” Similar stories have begun to emerge from firearm dealers nationwide. Many of these stores had been in business for decades and believed they had good working relationships with the ATF. Those relationships have been shattered by this new zero-tolerance policy.

The new policy is a threat to law-abiding firearm dealers, no matter how hard they work to make every background check and every firearm transfer perfect. Firearm associations have begun to take notice. Members of Congress have also flagged the issue. In June, 21 members sent a letter to the ATF expressing concern about the new policy and its effect on lawful firearm dealers. “Local ATF field agents,” the letter notes, “have shared that they feel pressured to take actions against individual businesses that they feel are not appropriate or in the interest of public safety.”

These efforts are important. But the fact remains that the new policy is simply unlawful under the very statute that it purports to enforce. That is why the owner of Central Texas Gun Works, Michael Cargill, has joined together with the Texas Public Policy Foundation to challenge the new policy in court. The law allows revocations only for “willful” violations, and that does not include inadvertent clerical mistakes. Businesses that commit clerical mistakes are not “rogue firearm dealers.” They are just ordinary businesses doing the best they can, and that is all the law asks of them. That is why we have challenged the new policy in court, and we will win.

• Matt Miller is a senior attorney at the Center for the American Future at the Texas Public Policy Foundation.


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