NSSF Loses Suit Against ATF

Yesterday, a ruling was handed down in NSSF’s case fighting the multiple long gun reporting requirement to dealers along the border. The short of it is that NSSF lost, and multiple reporting of long guns will have to proceed. I wanted to take the time to read the ruling before commenting on it. In short, several courts in sister circuits to DC have ruled that the demand letter power granted to the Attorney General (and thus ATF) by the Gun Control Act, while not unlimited, is quite broad. The DC district court just went along with these sister circuit rulings, and agreed the demand letters are not beyond that exercise of power.

I believe this is mistaken on the part of all the federal courts. The demand letter power was clearly intended to be limited to records already required to be kept, while in the course of a bone fide investigation. It was certainly not intended to allow the Attorney General to invent from whole cloth new record keeping rules.

The Demand Letter only requires FFLs to report record information that FFLs already are required to maintain. There is no evidence that ATF is using the Demand Letter as a ruse to create a national gun registry.

Plaintiffs here rehash arguments rejected by the Fourth and Ninth Circuits in J&G, Blaustein, and RSM, contending that ATF’s reporting authority under § 923(g)(5)(A) is limited by § 923(g)(1)(A) (protecting FFLs from reporting requirements “except as expressly required by this section”) to the subject matters on which reporting is required under § 923(g)(1)(B), (g)(3), (g)(4), (g)(6), and (g)(7). These subsections require FFLs to permit inspection or report record information under specific circumstances: § 923(g)(1)(B) permits ATF to examine records without a warrant during a criminal investigation; (g)(3) requires reporting of sales of multiple handguns to the same person; (g)(4) requires FFLs that go out of business to report their records to ATF; (g)(6) requires FFLs to report loss or theft of a firearm within 48 hours; and (g)(7) requires FFLs to respond within 24 hours of a tracing request.

Except that this is a) not among the records dealers are already keeping. That includes 4473 and the dealers A&D record. b) this is not connected with a bone fide criminal investigation, but rather a sweeping edict that effectively creates a new requirement, and c) Congress only has required multiple handguns to be reported. Certainly there would have been no need to statutorily authorize this if it was already a power under the demand letters, and certainly Congress knew how to include shotguns and rifles if it had intended to.

NRA is requesting folks contact their Senators to get them to support S.570, sponsored by John Tester (D-MT) and Richard Burr (R-NC). This would prohibit long gun reporting by statute. I am pleased to report that both our Pennsylvania Senators are co-sponsors.