H. R. 5092 (Coble and Scott), `Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) Modernization and
Reform Act of 2006'.
Ostensibly, this bill was intended to reign in ATF abuse of the current system. Opponents argue
that passage will tie ATF's hands and allow rogue gun dealers to arm criminals. Well, after
reading the bill, after talking to Congressman Coble's staff, after talking to staff on the Crime Committee,
after talking to Gun Owners of America, and so forth and so on... I have come to some conclusions
about H. R. 5092:
After reading the bill, the first thought that popped into my mind was,
"who is kidding who?" I am astonished that this is being sponsored by the NRA, who should know better,
and that a Republican controlled congress would actually write something that obviously exacerbates
the problem of an out of control ATF and then tell us that it is intended to reign in ATF abuse of
the system. Here is what I understand when I read H. R. 5092:
I see future inspections costing dealers between $5000 - $15000 in fines or 30-90 days suspension.
Suspensions are limited to 30-90 days but can't be lifted until the dealer is in compliance so
they could last longer.
The difference between the lower limit and the upper limit on fines and suspensions depends on
ATF's interpretation of whether the violation is or is not "a serious violation".
We have seen how ATF has interpreted laws in the past, i.e. the Child Safety act by not allowing
a gun safe to be used unless it was purchased within 10 days of taking custody so gun owners in many
cases have to double up on FSD's. (I can give many examples, this is just one of the more recent
ones - ask any gun dealer for more.) Does anybody believe that they won't take advantage of this law?
The checks and balances are that dealers have a right to appeal (Wonderful! If they can't get a
conviction at least they can waste our time and money - and many of the penalties are such that you
can't afford not to go to court!). Remember that the current AG, who is already on record as somewhat
anti-2nd Am, gets to set investigation guidelines.
It also appears to criminalize admin errors, see Section 11. Standards for criminal violations
of recordkeeping requirements. In this instance I think that this bill tightens the standard that
dealers are held to, making it an easier standard to prosecute under. Again, who defines the terms?(Changes Section 922 (m) of Title 18 USC by changing
- "any false entry" to "a materially false entry"
- "appropriate entry" to "a materially significant entry"
- "properly maintain" to "retain custody of"
The only point in our favor is that some of the violations must be "willful" on the part of a
licensee. This is a specific intent crime which is sometimes harder to prove but you will
probably need a lawyer and/or end up in court to fight it. Per GOA's web site, H. R. 5092 would
define "willfully" to mean "intentionally," which is about the most culpable state-of-mind
standard in existence - which means that you can't afford not to fight it if charged with it. So... how many small gun dealers can afford a court fight? For that
matter, how many of the large dealers can afford a protracted court battle?
Right now, for non-criminal violations, ATF has the two basic options; a slap on the wrist or
revoking a license (and they do sometimes issue suspensions as well). H.R. 5092 does not remove
these options. It does give ATF a whole set of new options in between that leave dealers at the
questionable mercy of ATF with little in the way of recourse short of paying fines, enduring license
suspensions, or appealing and going to court. To exercise these new options ATF need merely define
"willful" and "serious" and the AG can rewrite the investigation guidelines at his or her pleasure.
Even if you think that the current AG is okay on gun issues, and I for one do not, does anybody
think that we will never suffer another Janet Reno?
To assess the likelihood of abuse, I recommend looking at ATF's track record, (ask a dealer - not
a lobby group!), and at the number times ATF has demonstrated a propensity for political polarization
on 2nd Am. issues. I think that the ATF's position is, "Please don't throw me into that briar patch!"
when it comes to H. R. 5092. H. R. 5092 takes nothing away from ATF and does very little if anything
to curb ATF abuses. It does give ATF a pair of brand new baseball bats, fines and suspensions, with which to beat dealers on
the head with.
Your interest in this matter and your comments are most welcome. If it turns out that I am right
and H.R. 5092 needs to be defeated, then the time in which to do so is running out. If I am wrong,
please tell where I took a wrong turn. If you agree that I am right - please call or write your
Congressman now.
In summary, please note that this bill was intended to give ATF an option short of revoking a license and no
doubt a very few inept but not criminal dealers will benefit from this. The rest of the dealers that
are not inept enough to jeopardize their licenses - dealers for whom ATF currently can't do anymore
than a slap on the wrist because their errors are all minor and admin in nature, will see these
errors take on the status of crimes and wrist slapping will become a $5000 to $15000 fine or a
30 - 90 day suspension. A hefty price for the rest of us to pay for the very few inept dealers that
may not survive the current status.
As of 9/22/06, this bill is available for the House leadership to put on the docket any time.
Best Regards,
Ron Godwin, Mgr
(619) 579-5152
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