The Center for American Progress just released a lengthy, detailed and fully-documented study on the organization and functions of the ATF, concluding that the agency be merged and managed by the FBI. The report argues that the lack of a defined mission, coupled with budget shortfalls, operational impediments and intensely negative public scrutiny have combined to create what the CAP calls an “identity crisis” that can only be resolved through a major change in where the agency is placed. Moving ATF under the FBI would not only allow the nation’s premier law enforcement agency to take over primary enforcement of gun laws, but would also give ATF access to the management and personnel resources that it currently lacks.
I have no quarrel with the Center’s recognition of the organizational and operational shortcomings of the ATF, nor would I disagree with their idea that moving primary responsibility for enforcing gun laws to the FBI would elevate the importance of solving crimes involving guns and therefore help diminish gun crimes and gun violence as a whole. My problem with the report however, is that it is based on some of the assumptions about the relationship between guns, crime and enforcement which have defined the role and activities of the ATF, notwithstanding the fact that these assumptions have yet to be proven true.
Take, for example, the whole notion of gun trafficking, whose elimination is the cornerstone of the entire ATF regulatory and enforcement edifice. Gun trafficking is discussed in the CAP report, which notes that a majority of crime guns picked up in states with tough gun laws, like New York, come from states with weak gun laws, particularly states in the South. But I have never seen any study about the interstate movement of crime guns which differentiates between guns that move into criminal commerce because of ‘straw sales’ in retail shops and guns that are simply stolen and then end up somewhere else. The DOJ-BJS says that 200,000 guns are stolen each year; Brady claims the number might be twice as high. Why does the ATF assume that all those crime guns got into the ‘wrong hands’ only because someone lied on a NICS Form 4473?
They make this assumption because one of the agency’s primary missions is to “accurately and efficiently conduct firearms tracing and related programs to provide investigative leads for federal, state, local and foreign law enforcement agencies.” In 2014 the ATF conducted more than 360,000 traces and the CAP report states that “the tracing of crime guns recovered by local law enforcement has provided a significant benefit to law enforcement efforts to respond to gun crimes.” With all due respect to the ATF’s self-congratulatory description of its tracing activities, less than 20% of all traces involve guns linked to serious crimes. The ATF may believe that its current staffing level is far too low, but this could easily be addressed by relieving some of the National Tracing Center staff from tracking down the origin of guns used in such violent crimes as election laws, gambling, fraud, immigration, invasion of privacy and sex crimes, to name a few of the more than 60 categories for which ‘crime guns’ are traced.
The ATF’s real identity crisis stems from the fact that there isn’t a single federal or state statute that outlaws a crime known as ‘gun trafficking,’ so the ATF ends trying to enforce laws that don’t actually exist. Antonin Scalia got it right in the Abramski decision when he noted the extremely thin line which exists between a bone-fide straw sale, as opposed to the guy who buys a gun, walks away from the gun shop and decides to resell it to someone else before he gets into his car. If the ATF is ever going to become an effective agency for dealing with gun crimes, whether it ends up under the FBI or anywhere else, then the statutory vacuum in which it now operates has to be eliminated or filled in.