By Eric M. Larson
Another Amnesty? We in the Class 3 community kick this subject around on occasion, and wish for one to be declared- simply to guarantee that the records are straight. Most of us have a not unfounded fear that “Something will happen”, and some overzealous ATF agent will attempt to make a Registry error into a SWAT visit. With President Clinton’s recent comments about adding many agents to “Go after bad gun dealers”, the automatic understanding is that this adminstration considers ALL gun owners to be “Bad”, and adding hundreds of untrained personnel to ATF and encouraging them to “Go get em” might be very counterproductive to justice. The addition of more law enforcement trained professionals would certainly be a welcome move, people who go after criminals- but in a rushed hiring, that is usually not the case. If the NFRTR is off as much as many of us suspect from our daily records dealing with ATF, then something certainly needs to be done to correct the Registry. SAR has a position of supporting an administrative driven amnesty program, but we are not holding our breath. Readers are cautioned to apply considerable restraint on this subject, any action would probably be many years away. Eric Larson has been bulldogging this subject for a number of years, and he has been writing about his progress. Herewith, is his opening salvo about where this came from, and why it is needed. The old saying about “Be careful what you ask for, you might get it” applies here as well. Opening The door on the NFA might lead to other actions that would not be so favorable, so we are proceeding with due caution on this. SAR would like to encourage intelligent discourse from both sides of this Issue, and readers are of course invited to send their thoughts to the Honorable Representatives listed at the end of the article. – Dan Shea
The Congress is now considering encouraging the Bureau of Alcohol, Tobacco and Firearms (ATF) to establish a new amnesty period to correct errors in the National Firearms Registration and Transfer Record (NFRTR). On November 19, 1999, ATF submitted a list of what it terms 10 “Disadvantages” of establishing an amnesty period to the House Committee on Government Reform, and to the House Subcommittee on Treasury, Postal Service and General Government Appropriations. Each committee asked me to review ATF’s statement and I did so on January 12, 2000, as shown in the copies of documents accompanying this article. I submitted my review to the House and Senate Committees on the Judiciary, which also have oversight responsibility over ATF.
Because the decision of whether or not to establish an amnesty will probably be mainly based on policy considerations, I want to share some of my thoughts and research with readers of Small Arms Review, to assist in the public debates that will certainly occur. That the NFRTR data are significantly inaccurate and unreliable has been established. What remains now is to decide the best way to correct them.
In this article, I discuss recent events that led to putting serious discussions of a new amnesty on the policy table, and historical background regarding voluntary and amnesty registrations under the National Firearms Act (NFA) of 1934, as amended, from 1934 to 1968. In a second article I will discuss the period from 1969 to 2000, and include materials from ATF’s appropriations hearing currently scheduled for March 9, 2000, a time frame too short for inclusion in this issue.
As many readers of Small Arms Review know, I have testified before the Congress several times about errors in the NFRTR. In 1997, the Honorable Dan Burton, Chairman, House Committee on Government Reform, thought my research was credible enough to request the Treasury Department Office of Inspector General (IG) to conduct the first-ever audit of the NFRTR by an entity outside of the Bureau of Alcohol, Tobacco and Firearms (ATF). In late 1998, the IG released two audit reports on the NFRTR, each of which determined that the NFRTR data may not be accurate or reliable. Brief summaries of the IG reports were published in Small Arms Review. Both IG reports, my testimonies, and related materials are posted on James Bardwell’s NFA web page at http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/index.html.
ATF has not released NFRTR statistics since 1996, discontinuing an annual practice that began in 1989. I filed a Freedom of Information Act request for the data ATF provided the IG in conducting its audits. In a letter to me dated May 18, 1999 (which was published in Small Arms Review), ATF stated that NFRTR data it gave the IG was submitted “with the understanding” that the NFRTR data “was not accurate, because some of the report functions associated with the database are not working properly” [italics in original].
ATF’s statement is troublesome for at least three reasons. First, if the NFRTR software has errors in its “report functions,” data retrievals are probably not accurate or reliable either. Second, ATF’s statement confirms what virtually all Class III dealers have known for years-that the NFRTR does not always accurately reflect NFA firearms in the dealers’ inventories. Third, there is no statement in either the OIG report which confirms that ATF advised the OIG that the data “was not accurate.” In fact, one of the reports describes it as “the best available ATF data from the years 1934 through July 31, 1998, on the types of activity in the registry.”
According to a staff member I met with on November 30, 1999, the House Appropriations Subcommittee is going to require ATF to submit a plan, including priorities and a timetable, to correct errors in the NFRTR. The Subcommittee is very unlikely, he stated, to force ATF to establish another amnesty period or to involve itself in issues of NFA firearms classifications, which are other issues I have addressed in my testimonies. The Subcommittee has some jurisdiction regarding the errors the IG discovered, because it funds ATF’s firearm registration activities. The Subcommittee, he emphasized, is interested in errors in the NFRTR as a case of mismanaged administrative records, which may indicate waste or abuse in the administration of a government program, and because of the harsh penalties (up to 10 years in prison, and a $10,000 fine) for a single violation of the NFA. People who comply with the law, he added, deserve better assurances against being victimized by faulty records.
Further, the House Appropriations Subcommittee, and the House Committee on Government Reform are concerned about the whereabouts of an estimated more than 100,000 NFA firearms the IG determined are currently registered to people ATF has stated are dead. At the time this article was written (mid-January 2000), ATF has not stated how it plans to resolve this problem.
The only errors in the NFRTR that ATF may be correcting now is when Class III dealers or owners provide valid registration or transfer documents. In the case of NFA firearms in estates, it appears there have been cases that ATF has added firearms to the NFRTR for which it had no record, after being confronted by lawful heirs with valid NFA paperwork. In other cases, ATF has apparently confiscated the firearms, despite circumstantial evidence that the firearms probably were registered.
ERRORS IN THE NFRTR HAVE OPENED POLICY DISCUSSIONS INVOLVING AN AMNESTY
To make sure this point is clear, I would like to emphasize to Small Arms Review readers that the House Appropriations Subcommittee does not plan to force ATF to establish a new amnesty period. “We consider that to be part of the responsibility of the authorizing committees,” the staff member stated. “Those are the House Committee on Government Reform, and the House and Senate Committees on the Judiciary.” People who want to support establishing an amnesty should contact those committees, as noted at the end of this article, as well as their Senators and Representative.
Under current law, no person may legally register an unregistered NFA firearm, except during an amnesty period. In the Gun Control Act (GCA) of 1968, the Congress passed legislation which authorizes the Secretary of the Treasury to establish unlimited numbers of future amnesty periods (not to exceed 90 days per amnesty), and immunity from liability during such periods, “to contribute to the purposes” of the NFA. Things weren’t always this complicated.
NFA REGISTRATIONS FROM 1934 TO 1968
Under the original NFA, persons had 60 days to register NFA firearms they possessed on July 24, 1934 (the date that 1934 Act became effective), whether or not the firearm was in their possession on that date. Section 5(b) of the NFA stated if a person was shown to have possessed an unregistered NFA firearm for 60 days without having registered it, “such possession shall create a presumption that such firearm came into the possession of the defendant subsequent to the effective date of this act, but this presumption shall not be conclusive.”
Original registrations were made in duplicate original on “Form 1 (Firearms)” and submitted to one’s local “Collector of Internal Revenue.” The very first Forms 1 requested the registrant’s name; place of business or employment; home address; city or town; state; date firearm was acquired; and similar information.
The original registration was tax-free, and no photograph or fingerprints were required. After approval by the local federal tax collector, one copy of the Form 1 was returned to the registrant and the other was sent to the Commissioner of Internal Revenue.
Some registrations (which occurred for many years after September 24, 1934) included a separate declaration why the firearm wasn’t previously registered, such as the owner being unaware it had to be registered, or that it was obtained through inheritance. Such registrations were treated in the same manner as tax delinquencies, but without any monetary penalties, because the NFA is a federal tax statute.
The Congress repealed section 5(b) effective September 1, 1952, but voluntary registrations were still allowed. Some registrations state that ATF allowed the voluntary registration of an unregistered NFA firearm if the Assistant Regional Commissioner, Alcohol and Tobacco Tax Division, where the unlawful possession occurred, determined that the possessor had committed a “nonwillful violation” of the NFA. Such registrations, which were made on ATF Form 1, are stamped “NONWILLFUL VIOLATION -APPROVAL RECOMMENDED.”
BACKGROUND OF THE 1968 AMNESTY PERIOD
The idea for an “amnesty period” did not originate with the GCA, or with a 1968 U.S. Supreme Court decision that ruled one of the registration provisions of the NFA to be unconstitutional. I first encountered the proposal for an amnesty when it was raised by the Treasury Department during Congressional hearings in 1965, at which Treasury proposed the registration of “destructive devices” such as bazookas, anti-tank rifles, land mines, hand grenades and similar items that were then not required to be registered. Treasury also wanted to register (or in some cases re-register) so-called Deactivated War Trophy (DEWAT) machine guns that had been deactivated or removed from purview of the NFA under a program that Treasury created and subsequently revoked. Finally, Treasury proposed to double the transfer tax on NFA firearms from $200 to $400 (the $5 transfer tax on an “Any Other Weapon” would have been doubled to $10).
The Congress ultimately revised the NFA under Title II of the GCA, in part, to remedy a constitutional defect in the original NFA. In January 1968, the Supreme Court ruled that the NFA’s registration provision was unconstitutional (Haynes vs. United States, 390 U.S. 85), because it required persons to register NFA firearms and for ATF to make these data available to local, state, and other federal officials upon request. But persons who possessed NFA firearms in violation of state or local law(s) risked the hazards of prosecution by supplying the registration information required by ATF, which violated their 5th Amendment rights against self-incrimination.
The Congress resolved this conflict by (1) prohibiting any information required to comply with the NFA to be used against a registrant or applicant “in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence”; (2) establishing an amnesty period from November 2, 1968, to December 1, 1968, when persons could register unregistered NFA firearms with immunity from prosecution; and (3) prohibiting ATF from releasing any information about the registration status or ownership of any NFA firearm. During the 1968 amnesty, firearms were registered on Form 4467.
The 1968 amnesty is the first and only one the federal government has held so far. As was the case under the original NFA, fingerprints or photographs were not required to voluntarily register an NFA firearm during the 1968 amnesty period.
WHAT THE LAW SAYS ABOUT FUTURE AMNESTY PERIODS
The Congress did not provide for the continuous voluntary registration of unregistered firearms after December 1,1968. In fact, on Form 4467 (“Registration of Certain Firearms During November 1968”) itself, the following statement (bold and underline are in original) appears above data block 1:
IMPORTANT This form cannot be accepted for registration of firearm except when received by Director during the time period November 2, 1968, through December 1, 1968.
Evidence of Congressional purpose is contained in the legislative history of the GCA, which states that “every firearm in the United States should be registered to the person possessing the firearm” by December 2, 1968, the day after the 30-day amnesty period expired. Some people have alleged that ATF used only 30 days of a 90-day amnesty period in 1968, and thus “owes” another 60 days; however, this belief is incorrect. The reason is that the Congress established a 30-day amnesty period in 1968, not a 90-day amnesty period.
In a separate provision of law, the Congress provided that the Secretary of the Treasury could establish unlimited numbers of future amnesty periods. The amnesty period statute (section 207(d) of the GCA) is codified in United States Statutes at Large (Volume 82, 1969, page 1236), as follows:
The Secretary of the Treasury, after publication in the Federal Register of his intention to do so, is authorized to establish such periods of amnesty, not to exceed 90 days in the case of any single period, and immunity from liability during any such period, as the Secretary determines will contribute to the purposes of this title.
Approximately 65,000 NFA firearms were registered during the 1968 amnesty period. In 1996, ATF reported that number was reduced to 57,223. According to the data ATF submitted to the IG the number as of July 31, 1998, was 57,238. The reduction of the 65,000 number has resulted, in part, from ATF administratively removing certain firearms from purview of the NFA since 1968. The Congress authorized ATF to remove NFA firearms from the NFA as collector’s items, after determining they are unlikely to be used as weapons. Increases in the number of amnesty registrations (such as from 57,223 to 57,238, as noted above), may be due to ATF adding firearms back into the NFRTR after being confronted with a valid registration document.
WHERE DO WE GO FROM HERE?
There were virtually no restrictions on registrations during the 1968 amnesty. On the reverse of Form 4467, Instruction 6 (entitled “Penalties and Immunity”) states, in part:
“The statute requiring you to register your firearm provides that information or evidence required to be submitted or retained by you (if a natural person) shall not be used against you directly or indirectly in any criminal proceeding with respect to a prior or concurrent violation of law. However, the statute does not preclude the use of any such information or evidence in a prosecution or other action under any applicable provision of law with respect to the furnishing of false information.”
In my judgement, it is likely that a new amnesty period would include some restrictions that were not imposed during the 1968 amnesty. For example, for many years ATF has routinely disapproved applications to transfer NFA firearms to otherwise qualified persons who reside in states where possession of such firearms is prohibited by state or local law. Interestingly, the 1968 amnesty allowed such registrations, and there is no provision in current federal law which would allow states in which the law is changed to prohibit the possession of certain NFA firearms, to determine how many such firearms are registered to persons living in those states. It is unrealistic to assume that persons living in states whose laws prohibit the possession of certain NFA firearms, would be allowed to register such firearms during a new amnesty period.
So far, in my opinion, ATF has taken an unwisely narrow view by apparently not considering the benefits of an amnesty period to correct errors in the NFRTR. For example, a well-publicized amnesty period would be a “win-win” situation in at least two important ways: (1) it would provide an opportunity to correct defective records, and thus strengthen ATF’s cases for violations of the law-it would be difficult to claim errors in the NFRTR as a defense; and (2) it would increase the confidence of law-abiding owners of NFA firearms that if their registration or transfer documents were destroyed through no fault of their own (such as in a fire, hurricane, burglary, flood or other unforeseen disaster), the Government would not prosecute them for unauthorized possession of an NFA firearm.
In my next article, I will analyze the registration of unregistered NFA firearms from 1969 to 2000, including a post-December 1, 1968, “amnesty” period which ATF conducted for a number of years, which the Treasury Department Office of Inspector General determined may have been illegal because ATF failed to publish the required notice in the Federal Register as required by law. I will also analyze the continuing (since March 1, 1994) “amnesty” for the registration of certain shotguns which ATF ruled to be destructive devices. I will also do an update on Congressional activity regarding the consideration of a new amnesty period. It is possible that the Congress will formally request the Treasury Department Office of Inspector General for an opinion on the extent, if any, that an amnesty period would correct the deficiencies it discovered during its audits of the NFRTR.
NOTE: Small Arms Review readers and others interested in political participation regarding the issues I have discussed should direct letters to the appropriate Congressional committees: The Honorable Jim Kolbe, Chairman, Subcommittee on Treasury, Postal Service and General Government, B-307 Rayburn House Office Building, Washington, D.C. 20515; The Honorable Dan Burton, Chairman, House Committee on Government Reform, 2157 Rayburn House Office Building, Washington, D.C. 20515; The Honorable Orrin G. Hatch, Chairman, Senate Committee on the Judiciary, 224 Dirksen Senate Office Building, Washington, D.C. 20512; and The Honorable Bill McCollum, Chairman, Subcommittee on Crime, House Committee on the Judiciary, 207 Cannon House Office Building, Washington, D.C. 20515. The ZIP Code for your Senators is 20510, and 20515 for your Representative. Ladies and gentlemen of the Class III community: Please conduct yourselves as the ladies and gentlemen that you are. This is an opportunity to educate and to learn.
|This article first appeared in Small Arms Review V3N8 (May 2000)|
and was posted online on May 15, 2015