If The ATF Believes That Gun Violence Is Caused By Thefts From Gun Shops, The Martians Have Landed At Area 51.

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The ATF, which is the responsible government agency for regulating firearms, has just released another report about its activities which actually obscures more than it explains. But that’s the usual state of affairs with the ATF, a group of bumblers who still haven’t explained how they managed to lose two thousand guns in a sting operation called Fast and Furious that was supposed to uncover a vast manufacturing enterprise to convert AK-47 semi-auto rifles into full-auto machine gun and didn’t turn up even one.

atf              This new ATF report, which covers guns stolen or missing each year, comes out of the same division within the ATF which claims to be “leading in the fight against violent crime and terrorism,” a.k.a. the vaunted National Tracing Center. Let me tell you right now that if the National Tracing Center is what’s protecting us against terrorism, I would strongly urge all the readers of this column to drop whatever else they are doing, immediately start building their underground bunkers and stock their bunkers with a generous assortment of Glenn Beck’s freeze-dried food. And don’t forget to load up the bunker with an AK-47 and a couple of thousand rounds.

The last thing the ATF is going to do with its tracing activities is protect us or themselves from anything, unless the ‘anything’ happens to be a cut to their operational budget. They can talk all they want about how hard it is to conduct those hundreds of thousands of traces they conduct on ‘crime guns’ each year, but in fact, less than 20% of the traces they conduct each year have anything to do with serious crimes. For that matter, all the ATF’s whining about how their hands are tied because they can’t go beyond the first transfer of a gun is simply not true at all, because most gun shops sell as many used as they sell new guns, which means that all the transfers of previously-sold guns can be traced as well.

But let’s go back to the stolen/missing report which the ATF has just issued for 2016. The data represents what is reported to the ATF by federally-licensed dealers, but the information comes from the ATF in two very different ways. The reports on guns that have been stolen are usually supplied by dealers themselves who are victims of some kind of criminal activity, usually a burglary, which results in a loss of guns. Occasionally there’s a really spectacular burglary event, like the idiot in Janesville, WI, who allegedly stole more than 30 guns out of a gun shop and then sent mailed a threat to President Trump. But most of these thefts are a gun here or a gun there, and are frequently the work of a gun shop employee who just can’t resist the temptation to make an extra bit of cash.

The guns that are reported ‘missing’ by dealers, on the other hand, are guns for which paperwork can’t be found when the ATF conducts the inspection of a shop.  This doesn’t mean that the guns were stolen or fell into the wrong hands, it just means that the paperwork examined by the ATF can’t be found for a particular transaction, even though the transfer of that particular gun was legal in every respect. My last ATF inspection covered more than 11,000 transfers which occurred in my shop between 2002 and 2013. Know how many transactions ended up being reported as missing? Exactly five.

If the ATF wants to do something about curbing the theft of guns, why don’t they figure out a strategy or at least some messaging to highlight the fact that every year two hundred thousand or more handguns get stolen from private homes? The ATF will immediately tell you that regulating private gun ownership isn’t their legal mandate or their organizational concern. Which is why the agency’s value as regards reducing gun violence is both overstated and misplaced – gun violence is caused by the existence of so many privately-owned guns.

Should The ATF Change How It Operates When It May Not Operate Very Well Now?

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Our good friends at The Trace have just mounted coverage of the Congressional hearing where an ATF official, Ron Turk, faced blowback from Democrats over a memo he sent around questioning the necessity to maintain various gun regulations, such things as keeping silencers on the NFA list, restricting the import of assault-style rifles, prohibiting dealers from one state from selling direct to customers in another state – you know, little things like that.

atf             The word around town is that Turk the Jerk is pimping to become ATF Director, a position vacant since the last Director, Todd Jones, abruptly quit after the agency was buried in an avalanche of pro-gun protests when they tried to restrict the sale of surplus military ammunition which was seen as yet another infringement of 2nd Amendment ‘rights.’  Turk the Jerk claimed that he wrote his memo without input from the NRA, but he admitted during the hearing that, uh, maybe he had ‘heard’ from people in the industry who, uh, told him that they, uh, supported what he said.

My purpose, however, is not to rehash what Turk the Jerk said about his memo; Ann Givens did a good job on that score. What caught my eye was a link to the very critical report of ATF’s oversight of its confidential informant program which, according to the Justice Department’s Inspector General, is managed about as well as the White House is currently managing the behavior of the Commander in Chief.

The audit was conducted to evaluate the practices “for the identification, approval and oversight of confidential informants,” which number more than 1,800 individuals and costs the agency more than $4 million each year. Confidential informants (CI) are a necessary and important tool for law-enforcement investigations, but their use obviously involves risks regarding the validity of the information which they provide, as well as their involvement in illicit activities. The report concluded that “ATF’s oversight of its CI Program required significant improvement,” which is bureaucrat-ese for saying that the program isn’t run very well.  Gee – what a surprise that when it comes to conducting detailed and complicated field investigations, the ATF keeps screwing it up.

This is the same agency which carried out an armed invasion of the Branch Davidian compound outside of Waco in 1993 because they believed that members of the sect were manufacturing machine guns that would be used in an Armageddon-type attack on the nearby town. The assault resulted in the deaths of 4 ATF agents and at least 80 men, women and children, even though not a single full-auto weapon was ever found.

Then under the administrations first of George W and then Barack, the ATF went looking for machine guns again and put together an operation called ‘Fast and Furious,’ in which gun dealers were encouraged to sell lots of AK-47s to Mexican gunrunners who, it was believed, were turning the semi-auto rifles into full-auto weapons before they were smuggled over the Rio Grande. This brilliant program resulted in the death of an ATF agent and the disappearance of more than 2,000 weapons before it was curtailed. How many machine guns were recovered? None, as in not one.

The ATF not only botches field investigations, they can’t even bring the technology they use for regulatory activities into the 20th Century, never mind the 21st. Know those 300,000 traces they conduct every year to figure out the initial sale of all those ‘crime’ guns? Forget that most of those traces have nothing to do with serious crimes at all, the ATF still sends trace requests to dealers by fax. Have these guys heard of email and pdf?

If Turk the Jerk really wants to modify regulations to, as he says, ‘free up resources to fight crime,’ why doesn’t he first look at the way in which the ATF operates day-to-day? Before the regulations are changed to make the job easier, perhaps we need to know whether the agency knows how to operate at all.

Does Anyone Ever Think About The Cost Of Regulating Guns? The NRA Does.

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If you listen to the media’s spin on the NRA, the first thing they always tell you is that the success of the gun lobby is due to the amount of cash they spread around.  And while it’s true that they give substantial amounts of money to this candidate and that, and they spent a ton of dough on television ads for he-who’s-name -shall-not-be-mentioned even though he’s soon to become 45th President of the United States, the fact is that the NRA’s real success on the legislative playing field is due not to what is spent, but what is not.

laws             At the Federal level, most of the NRA’s lobbying activity consists of shooting down gun bills promoted by the other side.  And the funny thing about increasing gun regulations, such as expanding background checks to cover private sales, for example, is that someone has to foot the bill.  The gun owner who wants to give a gun to his son or sell it to a neighbor or friend has to pay a gun dealer to do the requisite paperwork and background check; the FBI will have to hire more staff to respond to the increased volume of NICS calls; the ATF will want to increase the number of agents because the dealers whose stores they inspect will have lots more transactions on their books.

Like it or not, most schemes to regulate anything, not just guns, live or die based on the ability of the relevant government agencies to ensure through enforcement that the new regulations are being followed and kept.  When Nixon dropped the speed limit to 55 mph in 1974 it was estimated that gasoline consumption declined by a whole, big 1% because most states ignored the rule and drivers were rarely, if ever ticketed for exceeding the new limit on speed.  But guns are already a highly-regulated industry, so additional regulations would be enforced.

The real political clout of the NRA is felt at the state level because this is where the entire licensing procedure for gun ownership takes place.  Thirteen states require a pre-purchase permit requirement for hand guns, long guns or both which means finding the time and money to process such transactions; carrying a concealed weapon is now legal everywhere but requires some kind of permit in 44 of the 50 states.  Again, the issuing authority for these licenses needs to spend money to get the job done.

Take a look at laws which the NRA is promoting at the state level, again and again such laws would cost nothing at all.  Texas is now the eighth state to allow students to bring concealed guns onto college campuses, a law that might make a college administrator decide to hire some more security, but it won’t be at the taxpayer’s expense.  Back in 2014 Georgia passed a ‘guns everywhere’ law which opened bars, restaurants, churches and just about every other public place to those hardy souls who just can’t walk around without their guns. Did this law require an uptick in the state budget bottom line?  Not one bit.

A recent study from three researchers at the Harvard Business School tracked state legislative responses to mass shootings from 1999 through 2014. What they found was that after a mass shooting, laws that loosened gun restrictions increased in Republican-controlled state governments by 75%, no comparable activity for tightening gun restrictions in states with blue governments was found.  I’m not sure that I entirely buy their research because Connecticut, New York and Maryland all passed restrictive gun laws after Sandy Hook, but all three laws mandated new regulations which could only become effective with enforcement at every turn.

Going forward, Gun-sense Nation will have to tread carefully when it comes to advocating new gun regulations which bear any cost.  Because we are clearly entering a time when ‘tax relief’ and ‘downsizing government’ will be the orders of the day. And since most laws cost money to enforce, this puts Gun-nut Nation in the driver’s seat because they don’t want any gun laws at all.

Lawyers Take On Gun Violence – Will It Make A Difference?

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I’m not an expert or even a novice on what I know about America’s legal profession, but when firms like Paul, Weiss, Rifkind, Wharton & Garrison, Arnold & Porter and Covington & Burling announce that they are joining forces to tackle a legal issue, it’s worth my time to figure out what’s going on.  And when these firms and a bunch of other legal powerhouses announce that the issue they want to pursue is gun violence, then it’s something I need to understand.  And what better way to understand what’s going on than a long and detailed article in The New York Times which says these firms are committing “tens of millions of dollars in free legal services” to aid the gun violence prevention community (GVP) in its efforts to reduce the annual carnage caused by America’s love affair with guns.

lawyers             Predictably, Gun-nut Nation immediately responded to this announcement by accusing the lead Arnold & Porter attorney, Michael Schissel, of “lying through his teeth” in an interview with NPR because he wouldn’t admit that his real reason for getting involved was to help his firm get “rich off frivolous lawsuits” that would be filed once his firm helped dispose of the gun-immunity law known as PLCAA. And to prove just how much the gun industry doesn’t need any more anti-gun lawyers poking around, the whine about Schissel mentioned the sad case of Stag Arms whose owner was barred from the industry for life simply because he couldn’t provide the ATF with documentation about a pile of full-automatic assault guns.  We’re not talking about the semi-automatic assault rifles which Stag manufactures in boatloads every month.  We’re talking about weapons where you pull the trigger one time and the gun barks roughly ten times per second until all the ammo is used up.

Of course what the new legal alliance is facing isn’t some small fry in Connecticut who forgot to do the paperwork on his machine guns.  What they are really facing is the power and authority of the Executive branch of the Federal government whose new occupant better not forget the television ads that NRA ran during his Presidential campaign. I find it interesting, incidentally, that there was absolutely no mention of anything having to do with the 2nd Amendment in the hundred-day agenda that Trump released back in October when he delivered his version of the Gettysburg Address. And what really concerns me in this respect was the statement coming out of the new legal coalition formed to help reduce gun violence that their effort “was not aimed at eroding gun rights.”

The problem with this approach on the part of advocates for GVP is that the statement simply flies in the face of reality, or at least the reality of gun ownership as it is understood by most people who own guns.  Take, for example, the surveys which show a majority of gun owners and even NRA members allegedly supporting the extension of FBI-NICS background checks. Yet none of those surveys ever ask these same NRA members how they feel about the NRA’s explicit rejection of any additional background checks at all.  I can guarantee you that if those same NRA members had to choose between supporting background checks and supporting the NRA, the folks in Fairfax would get their money and their votes.

The search by this new legal coalition to identify and speak to all those ‘responsible’ gun owners reminds me of all those ‘responsible’ Republicans who were going to desert the party and vote for Hillary because they just couldn’t accept the rantings and ravings of this new guy named Trump.  Know what happened to all those ‘responsible’ Republicans when they walked into the voting booth on November 8th? They voted the way they always voted, which is exactly what will happen if gun owners have to choose between gun regulations drawn up by liberals (and their attorneys) or the protection of the NRA.

Has The Number Of Gun Dealers Declined? Not Lately.

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Our friends at the Violence Policy Center (VPC) have just released a new report which details a 77% decline in federal gun dealers since 1994, which they believe reduces the number of dealers who might be “a known source of weapons for criminal gun traffickers.”  Exactly how large a role FFL-dealers actually play in pushing guns into the ‘wrong hands’ has never been adequately analyzed or explained, but looking for any piece of silver lining when it comes to regulating guns in the Age of Trump isn’t a bad thing.

vpc             The only problem with this particular piece of silver lining, however, is that the data actually gives a somewhat different perspective on the whole issue of FFL-dealers than what the VPC would like us to believe. Because while it is true that the number of FFL licenses has declined by more than two-thirds over the past twenty years, the number has actually increased by more than ten percent in the last nine years.

And why has there been an increase in FFL dealers after the drop in license-holders after 1994?  Remember this guy named Obama and a doubling in gun sales beginning in 2008? Remember an even greater sales increase after the 2012 tragedy at Sandy Hook and an abortive attempt to widen NICS-FBI background checks to cover secondary sales?  Between 2007 and 2016 the number of gun dealers increased in 38 of the 50 states.  North Carolina dropped from 6,486 dealers in 1994 to 1,327 in 2007, but FFLs in the Tar Heel State are back up to 1,921, an increase of 45%!  In South Carolina the numbers went from 2,332 in 1994 down to 529 in 2007 and now back up to 886, not a bad jump in just nine years.

The real reason that FFLs dropped so steeply after 1994 (mentioned in the VPC report) was the cost of the license went up from $30 to $200, which meant that many of the pre-94 dealers were not really in business so a 700% increase for the license fee was just too steep. But it’s not as if the Treasury Department lost any money when all those guys buying guns for themselves at wholesale prices gave up the ghost. The license fees under the pre-94 regime would have generated around 7 million bucks.  When the fee went to $200 the revenue from the 56,000 current dealers amounted to 11 million and change.

The fact that there are roughly one-quarter the number of FFL-holders today as compared to 1994 says absolutely nothing about the relationship between the number of dealers who actually sell guns to consumers as opposed to selling guns to themselves or to a few friends.  Even with the ATF’s backslapping about their vaunted programs to keep dealers in line, probably no more than 5,000 dealers are actually bringing new inventory to the civilian market and thus might be contributing to the spread of crime guns.

Where do I get that number?  It’s simple – just go to the website of Smith & Wesson or Glock or one of the other gun manufacturers and do a search for their stocking dealers in any particular state.  Gun makers go out of their way to promote product sales by listing every dealer who stocks and sells their wares.  Glock lists 272 dealers in North Carolina and the ATF says there are 1,921 FFL-holders in the state.  Smith & Wesson has about 50 dealers in its home state of Massachusetts and there are 386 active FFLs in the Bay State.

If you want to write about regulating any industry you need to know how to figure out how to understand the industry itself.  And you’re not going to get a complete view by using information created outside the industry by regulators like the ATF. Remember, in the Age of Trump it doesn’t matter whether anything is based on facts or not. All the more reason why folks who don’t share his love of the gun industry need to know how that industry really works.

 

When Is A Sporting Gun Not A Sporting Gun? When It’s A Gun.

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One of the issues that pervades and distorts the ongoing debate about gun violence is whether guns are designed for ‘sporting’ as opposed to ‘non-sporting’ use.  This attempt to differentiate between ‘sporting’ and ‘non-sporting’ goes to the heart of the 2nd Amendment because the courts have always held that this difference is the basis upon which Constitutional guarantees of gun ownership rest; namely, civilian ownership of ‘sporting’ guns are protected by the 2nd-Amendment, ‘non-sporting’ (meaning military) guns are not.

chinese-gun           Since 1968, the ATF has been granted the authority to classify guns as ‘sporting’ or ‘non-sporting’ when it comes to allowing the import of gun manufactured overseas.  Most of the criteria that ATF uses to determine whether an imported gun does not meet the criteria for ‘sporting’ use ended up being incorporated into the 1994 assault weapons ban and these design features (rifles with pistol grips, flash hiders, etc.) effectively keep many types of what are generally called ‘assault rifles’ from being shipped in from overseas.  But ever since the assault weapons ‘ban’ ended in 2004, with the exception of a few states that opted to maintain the ban, or have subsequently reinstated it, the question of what really constitutes a ‘sporting’ as opposed to ‘non-sporting’ weapon remains confused.

Ten years ago or so, when the gun makers realized that hunting, a true sporting activity, was dying on the vine, they began promoting the idea that ‘black’ guns like the AR-15 were no different from any other type of ‘sporting’ gun.  And their rationale for this argument was that the civilian version of the AR lacked one essential feature of the non-sporting (i.e., military) gun, namely, that it could not be fired in full-auto mode.  And because the AR could only be fired in semi-auto mode, this made the gun no different from any other traditional semi-auto hunting gun, many of which had been around for 50 years or more.

The problem with this argument, of course, is that it’s not true.  Oh well, oh well, just because something isn’t true doesn’t mean we shouldn’t say it anyway. Right, Mr. Trump?  But the truth is that the current battle gun allows its user to set the firing mode as either a 3-shot burst or semi-auto pull.  So if a soldier decides that the particular tactical situation of the moment requires that his gun operate in semi-auto mode, should we say that he or she is now going into battle with a ‘sporting’ gun?  Give me a break, okay?

The gun industry has always claimed that ‘sporting’ guns, are not designed to be used for shooting humans, as oppose to ‘non-sporting’ (military) guns that are considered weapons of war. This is also not true.  The first gun that was ever invented came out of China in the 13th Century, utilizing a new technology called gunpowder to push a solid, ball-shaped object, out of a metal tube with the gases created by igniting the powder creating the necessary pressure to put the cannon ball into flight.  This technology and the corresponding weapons began to appear in Europe in the 15th Century, and very quickly the same technology appeared in weapons that could be used by individual soldiers – which is how and why the small arms industry was born.

In this country, some of these military designs were adapted for hunting use, but non-commercial hunting was and never has been more than a marginal social and sporting activity, and commercial hunting was generally outlawed because otherwise the various species would have been killed off – and some like the bison almost disappeared.

The point is that what the gun industry calls ‘sporting arm’ were never designed to be used for sporting purposes at all.  The fact that a relatively small population enjoys shooting their guns at paper targets on a range or trying to bag that elusive White Tail doesn’t change the fact that guns were designed and are still designed to do one thing, and we all know what that one thing is.

 

Scalia’s Pro-Gun Views Didn’t Hurt The GVP Community At All.

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Back in 2006 I happened to be a guest at a law school dinner, and before the dinner Antonin Scalia gave a talk. He later told me that it was ‘the same talk I give a hundred times a year,’ and then we all sat down for a meal.  At some point someone told him I was a gun dealer, and he jumped up, grabbed his plate of food, came running over to my table, pushed the guy next to me out of the way and sat down. For the next hour he talked animatedly about different guns, different calibers, was particularly interested in my thoughts about the differences between a 338 Winchester Magnum and a 300 Weatherby; I told him it didn’t matter since if he was more than 150 yards away he wouldn’t hit the mulie anyway. We went on and on.

It hardly came as a surprise that he authored the Heller opinion in 2008 because he was not only a certifiable gun nut, but was probably the only member of the Court who knew anything about guns.  In fact, if you read Steve Breyer’s dissent in Heller, you’ll discover that Breyer evidently doesn’t know a rifle from a musket, which when it comes to how much any of the other SCOTUS justices knows about guns, is probably about par for the course.

In the aftermath of the Heller and MacDonald decisions, Gun Nation has been diligently trying to get more gun cases before a right-leaning Court, and the possibility that Obama might appoint a liberal to the bench will no doubt be used by the NRA as the theme of their weekly pitch for dough.  The fact is (I really enjoy using the word ‘fact’ when I write about guns) that the SCOTUS has heard exactly one 2nd-Amendment case since 2008, a case in which the Court, in a majority opinion written by Justice Kagan, effectively upheld the entire ATF regulatory system as not infringing on 2nd-Amendment rights.  And just this past December, the Court declined to hear a case, Friedman v. City of Highland Park, in which a man sued because the town in which he lives won’t let him own an AR-15, a.k.a. an assault rifle, a.k.a. what we call a ‘black’ gun.

Just as I wasn’t surprised that Scalia wrote the Heller opinion, so I wasn’t surprised that he based the opinion not on history, not on precedent, but on simple common sense. Because when it came to guns, what Scalia knew and what other SCOTUS justices probably didn’t know, was that in the fifty years since the Court had previously handed down a 2-Amendment ruling (U.S. v. Miller), the United States had gone from a country in which most firearms were long guns owned for hunting to handguns owned for personal defense.  So when Scalia stated in Heller that keeping a loaded, unlocked handgun in the home had become an American ‘tradition,’ maybe the tradition was only thirty years old, but it had become standard lexicon for defining gun ownership nonetheless.

If you think that the Heller decision has unleashed a spate of 2nd-Amendment legal tests in the lower courts, just imagine what would have happened if Scalia and the SCOTUS had followed Miller and other precedents and declared that the 2nd Amendment didn’t protect private gun ownership at all.  Such a decision would have unleashed a torrent of gun laws at the local and state levels reflecting the second big change that has occurred and has now also become an American tradition when we talk about guns.

What I am referring to is what I call the GVP tradition, which has become, for the first time in my long lifetime, a grass-roots, broad-based effort to bring some sanity to America’s love affair with guns. The GVP movement is stronger and more sustained than anyone could have imagined just a few years ago, and it will continue to develop momentum regardless of who sits on the High Court.

 

 

 

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