By James H. Jeffries III
The outline of the proposed suit by Steve Halbrook and myself to declare invalid the BATF regulations requiring local CLEO certifications on Forms 1, 4 and 5, before BATF will approve transfers of NFA firearms to individuals.
To understand the problem and our proposed attack, it is first necessary to understand the purported legal source for the two regulations which contain the certification requirements (27 C.F.R. 179.63, 179.85). The only remotely credible basis for the requirement in these regulations (that a local law enforcement authority sign the certification on BATF’s forms) is found in Sections 5812 (Transfers) and 5822 (Making) of the Internal Revenue Code of 1984, 26 U.S.C. 5812 and 5822 (the National Firearms Act of 1934, as amended). Those two provisions, governing the manufacture of NFA firearms by non-SOT individuals, and their transfer to non-SOT transferees, contain almost identical last sentences: “Applications [to make or transfer] shall be denied if the transfer, receipt or possession [or making or possession] would place the transferee [or person making the firearm] in violation of law.”
From these two simple sentences BATF has constructed two monster (and illegal) regulations which abdicate its federal legal responsibility to collect federal taxes and enforce federal law to tens of thousands of local officials, some elected, some appointed, none of whom is hired by, works for, or is responsible to the federal government or charged with enforcing federal law. What’s wrong with this picture? Let me count the ways.
(1) The power of the executive branch of the federal government to enact regulations is fairly circumscribed. An agency cannot “legislate” under the guise of enacting regulations. Only Congress can legislate. The regulations must be within the legal authority of the agency under the law, and must be within the scope of the legislation the regulations purport to implement. Regulations must also meet constitutional standards of due process, equal protection, etc. They may not conflict with or “amend” other laws. They may not be inconsistent with other regulations.
The congressional language “… if the [making, transfer, receipt or possession] would place the [individual] in violation of law” can only mean one of three things for purposes of BATF’s legitimate promulgation of treasury regulations purporting to implement it:
(A) The transfer/manufacture would put the maker/transferee in violation of federal law because of a federal disability to possess firearms. How is a local sheriff better able to determine this question of federal law than the Bureau of Alcohol, Tobacco and Firearms? Assuming the sheriff is competent (or even more competent as to some disabilities) to determine this fact, by what authority does BATF give the sheriff an absolute veto over the transaction if or when he refuses to make the determination? The federal Constitution requires that the President shall take care that the laws of the United States are faithfully executed and gives him the appointment power to appoint and commission federal officers to enforce federal law. By what power does BATF delegate this authority and duty to local officials? The Supreme Court has already told us in Steve’s Brady case (Printz v. United States) that local officials cannot be drafted to enforce federal laws. It would seem clear that they also cannot be permitted to enforce federal law where they also have the discretion to veto it by refusing to enforce it. Even if the local certification purported to be mandatory it would violate the Commerce Clause and the Tenth Amendment to the Constitution just as the Brady Act did. As a non-mandatory “duty” it permits an illegal local veto over a federal right and duty. And why are corporate transferees not subject to this certification? Corporations can be convicted felons.
(B) The transfer/manufacture would put the maker/ transferee in violation of state or local law because state or local law forbids possession of such weapons by private individuals. If this is the rationale for such certifications, why are corporations exempted from the certification requirement? This rationale assumes BATF is incompetent to know local firearms law. Although one must never be quick to underestimate BATF incompetence, this is not one of those areas. BATF is required by the Gun Control Act of 1968 to issue annually a compilation of all local gun laws. (The fact that BATF routinely ignores this legal requirement does not alter the fact that it is charged by Congress with knowing which states permit possession of various NFA firearms and which do not.) In fact, BATF is fully cognizant of state laws governing NFA firearms; every NFA Branch examiner has a checklist that shows the jurisdictions where possession of various NFA firearms is legal, and where not. Moreover, giving state and local authorities the opportunity to point out any state law prohibitions on NFA makings or transfers could not possibly justify a BATF denial of an application when or because the local authorities decline to give such input. The practical result of this scheme is that, of say 30,000 local officials who are acceptable certifiers on BATF Forms 1, 4 and 5, perhaps 15,000 refuse to sign, or will sign only for friends or political supporters, or law enforcement cronies, or whites only, etc., etc. Citizens living on opposite sides of streets which form the city limit or the county line receive totally disparate treatment in their right to make or receive NFA firearms. That is called a denial of due process of law and a lack of equal protection of the laws. There may also be a Second Amendment issue lurking here somewhere, although I do not contemplate that we would attempt to litigate that issue in this context.
(C) The transfer/manufacture would put the maker/ transferee in violation of state or local law because of a state or local personal disability to possess firearms. Facially this would make the most sense of the three rationales. A sheriff or chief of police might well be in a better position than BATF to know that someone in his district has been an involuntary mental patient or is addicted to drugs or is under a domestic restraining order. But BATF’s regulations go far beyond any such rationale by giving the sheriff or chief a total veto over the federally-taxable transfer, for any reason or for none at all — with no requirement to explain the refusal. And by far the greatest number (probably in the neighborhood of 98 percent) of state or local firearms disabilities would be criminal convictions. Guess where the sheriff will look for such disabilities if he will certify at all? In the NCIC (National Crime Information Center) computer. Guess who maintains the NCIC. Right (the feds). Guess how many NCIC terminals there are at BATF headquarters. Right (lots).
(2) The NFA is a federal tax statute. Forms 1, 4 and 5 are federal tax returns. The Secretary of the Treasury (and his delegate here, the Director of BATF) are required by the Internal Revenue Code to collect all federal taxes. Section 6301 of the Internal Revenue Code reads in its entirety: “The Secretary shall collect the taxes imposed by the internal revenue laws.” Leading to the question, What part of “shall collect” doesn’t BATF understand? Moreover, tax return information is protected under the Internal Revenue Code (26 U.S.C. 6103), and its improper disclosure is a felony (26 U.S.C. 7213) giving rise to a suit for damages against the United States by the taxpayer whose return or return information is wrongfully disclosed (26 U.S.C. 7431). Under what authority does BATF require a proposed maker or transferee to disclose his federal tax return to some local law enforcement official- who may or may not be competent to the task? Under what authority does BATF give local officials an absolute veto power over a federally-taxable transaction?
These are some, but not all, of the things wrong with the present scheme. What can we do about it? Sue the bastards! What would such a lawsuit look like?
The suit could be brought anywhere in the United States that a making or transfer would otherwise be legal but had been denied, because all possible CLEOs had refused to certify. Or multiple suits could be brought in all such districts. Efficiency and practicality dictate that one suit, at least initially, be brought in a single district to be determined by Steve and me. The suit would be one under the federal Administrative Procedures Act to review an agency decision — the refusal of BATF Director Magaw to approve a transfer which lacked a local law enforcement certification.
Who would be the plaintiffs? A necessary plaintiff would be a prospective transferee who had been refused certification by all possible CLEOs in his/her jurisdiction, and whose application was denied by BATF for that reason. Desirable additional plaintiffs 1) a would-be transferee who refuses to share his federal tax information with a local despot, and 2) a local sheriff or CLEO who rejects the imposition of this federal duty/authority on local officials but supports the right of his constituents to possess such firearms.
What relief would we seek? A judicial declaration that the regulations involved are unconstitutional to the extent they give local officials a veto over possession of NFA firearms, and an order (mandamus) requiring approval of the denied application(s).
What would be the practical result of success? BATF would probably simply strike the offending language from the NFA regs and tuck the NFA certification into the NICS process. Does that change anything? You bet. assuming NICS ultimately withstands constitutional scrutiny (and that’s a big if) it would mean that NFA transactions would be treated like all other firearms sales and any local discrimination would be immediately remediable. Is it worth the effort? Maybe not to those lucky enough to live in NFA-friendly jurisdictions. But what guarantees those jurisdictions will stay friendly? You’re only one election or appointment away from joining those tens or hundreds of thousands of citizens who cannot possess NFA firearms simply because of the arbitrary decision of some local official who doesn’t want such firearms in his county (or at least not in the hands of people other than his friends and deputies).
If SAR’s readers have additional questions Steve and I will be happy to address them in future editions. Contact them through CLEO at the SAR contact points.
|This article first appeared in Small Arms Review V2N8 (May 1999)|