Industry News: August 2000

By Robert Hausman

In this second installment of SAR’s special coverage of the Bureau of Alcohol, Tobacco & Firearms’ (ATF), first in a series of published in-depth looks at the firearms industry in America, the topics of illegal firearms trafficking, gun tracing, the history of U.S. firearms regulation, and some statistical information on transfers and ownership of National Firearms Act regulated arms are presented.

In a study published in 1999 of the sources of trafficked firearms identified in ATF illegal trafficking investigations involving youth and juveniles, the greatest source of illegal firearms (50.9%) were firearms trafficked by straw purchasers or straw purchasing rings. Trafficking in firearms stolen from a dealer came in second at 20.7%, and trafficking in firearms by unregulated private sellers (as distinct from straw purchasers and other traffickers) came in third at 14.2%.

Trafficked firearms stolen from residences comprised 13.6% of the sources of firearms in the study, while firearms trafficked at gun shows, flea markets, auctions, or in want ads and gun magazines came to 9.9%, and firearms trafficked by licensed dealers, including pawnbrokers, totaled 6.3%. Street criminals buying and selling guns from unknown suppliers were a source of only 4% of the guns under study, while trafficking in firearms stolen from common carriers came in at 2.5%, and other sources (such as guns sold over the Internet and illegal pawning) comprised only 1.4%.

ATF has discovered a small number of dealers account for a large proportion of the firearms traced. In 1998, among all dealers, 14% had one or more firearms traced to them in that year; about 32% of the pawnbrokers and about 12% of other retail dealers had a trace that year. Only 1.2% of dealers in 1998 were associated with 10 or more traces. These approximately 1,000 dealers accounted for well over 50% of the traces to retail dealers that year.

About 330 dealers, a fraction of one percent of the total, were associated with 25 or more traces and accounted for about 40% of the traces to dealers in 1998. While the average time-to-crime for traced firearms is about six years, many traced firearms are recovered in three years or less.

Approximately 200,000 trace requests were made in 1999. Not all trace requests result in the identification of the original licensed retail dealer or purchaser of the traced firearm. A gun trace currently identifies the first retail dealer for about 60% of trace requests and the first retail purchaser for approximately 40% of trace requests.

Factors Inhibiting Tracing

The factors inhibiting the tracing of firearms include non-responsive dealers. Though dealers are required to respond to trace requests within 24 hours, and many do respond promptly to trace requests, ATF says some dealers totally disregard or refuse to comply with a request; others fail to respond within 24 hours and still others supply incorrect information.

Another difficulty is in tracing secondhand guns. Federal law does not require unlicensed sellers to preserve transfer records (of non-National Firearms Act regulated arms), nor are gun owners required to keep a record of the serial number of their firearms or to report lost or stolen firearms. Thus, it is generally impossible for a crime gun trace to identify purchasers beyond the initial retail buyer.

Some traces cannot be completed because the firearm is lost or stolen while in transit between two licensees, and not reported as such to ATF. Current regulations do not specify whether the shipping or receiving licensee is responsible for reporting the theft or loss of a firearm while it is in transit. Interstate carriers are not required to report the theft or loss of firearms shipped in commerce. In fiscal year 1999, there were 1,290 crime gun traces in which the FFL-holder claimed it never received the firearm sent to it.

The intentional obliteration of firearms’ serial numbers by criminals poses a serious threat to the effectiveness of the firearms tracing system. ATF restores obliterated serial numbers at its three national firearms laboratories. On June 23, 1999, ATF issued a Notice of Proposed Rulemaking to impose marking requirements that would make it more difficult to obliterate serial numbers.

Gun Law History

ATF’s report notes that prior to the enactment of the Gun Control Act of 1968, which established the present system for federal licensing and regulation of gun dealers, the firearms industry was regulated by three major pieces of national legislation.

The first was the Revenue Act of 1918, which imposed a tax on the sale of firearms and ammunition by the manufacturer or importer of the firearm or ammunition. The tax is 10% for handguns and 11% for all other firearms. The tax has been in effect, with few modifications, since 1918.

The National Firearms Act of 1934 (NFA) was enacted to combat “gangster” violence that had increased markedly during alcohol prohibition. The NFA imposes an excise tax on manufacturing and transferring a narrow class of firearms, defined by statute, including machine guns, short-barreled shotguns and rifles, silencers and “gadget” guns such as umbrella guns and pen guns.

By taxing the manufacture and transfer of these arms, the NFA sought to reduce the availability and the commerce of these arms to the criminal element. The NFA also requires that these arms, and each transfer of them, be recorded in the National Firearms Registration and Transfer Record.

The Federal Firearms Act of 1938 applied to all firearms and prohibited anyone not licensed as a manufacturer or dealer from transporting, shipping, or receiving any firearm or ammunition in interstate or foreign commerce. Licensed dealers and manufacturers could ship firearms interstate only to other licensed dealers and manufacturers, and to those who had or were not required to have a license under state law to purchase the firearm. Licensed dealers and manufacturers were required to keep records of firearms transactions.

The law prohibited any person from shipping or transporting in interstate or foreign commerce any firearm or ammunition to any felon, person under felony indictment, or fugitive from justice, and these prohibited persons could not ship or transport any firearm or ammunition in interstate or foreign commerce. Although later repealed by the Gun Control Act of 1968 (GCA), many of its provisions formed the framework for the GCA.

The Gun Control Act of 1968, by creating a licensing scheme that regulates the interstate movement of firearms, helps individual states enforce their own laws regulating firearms possession and transfers by generally prohibiting the transport and shipment of firearms across state lines. Before the GCA, differences among state controls over firearms commerce impaired the ability of states to enforce their own laws. The GCA’s interstate prohibitions were intended to minimize the impact of different state laws, which had led to illicit commerce in guns between states with little firearms regulation and states with strict controls.

The GCA generally prohibits the importation of firearms. However, it contains an exception for firearms which are of a type “generally recognized as particularly suitable for, or readily adaptable to, sporting purposes.” Since 1968, factoring criteria, which include overall length, frame construction, weight, caliber, and safety features, have been used to determine if handguns meet the sporting purposes test.

The Firearms Owners Protection Act of 1986 (FOPA) contained many provisions aiding the firearms industry and individual gun owners. Unfortunately, the law also banned the manufacture of machine guns for civilian use. Among the FOPA’s positive provisions, was one amending the GCA to allow dealers to conduct business temporarily at gun shows, provided the gun show was located within the same state as the dealer’s licensed premises.

The FOPA also reduced most recordkeeping offenses committed by licensed dealers from felonies to misdemeanors and amended the GCA to provide that ATF could conduct only one warrantless inspection of a licensee for compliance purposes in any 12-month period. Prior to 1986, the GCA did not include any specific mens rea (meaning “guilty mind”) requirements. The FOPA amended the GCA to require proof of either a “knowing” or a “willful” state of mind for all GCA violations.

The FOPA prohibits ATF from establishing any national system of conventional gun registration. Before 1986, the GCA provided for the seizure and forfeiture of any firearm or ammunition involved in, or used or intended to be used in any violation of the GCA. The FOPA amended the GCA to require “clear and convincing evidence” of intent to violate the law before the government could seize and forfeit firearms used in GCA violations. In addition, the government must begin forfeiture proceedings within 120 days of seizure.

The Brady Handgun Violence Prevention Act of 1993 was implemented in two stages: an interim stage and a permanent stage. The interim provisions went into effect on February 28, 1994, requiring dealers to submit a “Brady Form” to a chief law enforcement officer (CLEO) who had the option of conducting a background check on the prospective handgun purchaser. The law required the dealer to wait for up to five business days for the CLEO’s response before the handgun could be transferred to the buyer.

The permanent provisions of the Brady Act went into effect November 30, 1998. It was at this time that the National Instant Criminal Background Check System (NICS), run by the Federal Bureau of Investigation, (Sometimes referred to as the “NRA Plan”) came into use for checking the backgrounds of buyers of both hand and long guns in states where it applies.

On September 13, 1994, Congress passed the Violent Crime Control and Law Enforcement Act of 1994, which made it unlawful, with certain exceptions, to manufacture, transfer, or possess certain firearms defined as so-called “semiautomatic assault weapons” not lawfully possessed on the date of the law’s enactment. The 1994 law also made it generally unlawful to possess and transfer large capacity ammunition feeding devices (those holding over 10 rounds) manufactured after September 13, 1994.

The 1994 Act also required those applying for federal firearms licenses to submit photographs and fingerprints as part of their application, and to certify that their firearms business complied with all state and local laws, including zoning regulations.