Loyola University Chicago School of Law, J.D. 2023
On January 19, 2022, a searchable database of inspection reports from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) became publicly accessible. The ATF carries out firearms compliance inspections to ensure that federal firearms licensees (FFLs) are complying with federal gun control regulations, as well as local laws. Brady, the organization responsible for compiling the inspection database, reports that even when FFLs have violated regulations, the ATF only rarely revokes their licenses.
In 2020, there were 130,525 FFLS, and the ATF investigated 5,827 of them. Less than one percent of those investigations actually resulted in license revocation. Much more common are warning letters, or (less frequently) warning conferences, informing violators that their conduct was not in line with regulations. ATF investigations involve investigators appearing at FFLs’ place of business and investigating their business operations, security measures, physical inventory, and records and recommending voluntary measures that the sellers can take to better adhere to the regulations and prevent gun trafficking. If this investigation reveals that the FFL has transferred a firearm to a prohibited person, failed to conduct a background check, falsified records, or failed to respond to a trace request, the ATF will issue a notice of revocation unless there are extenuating circumstances. Absent a finding of the above types of conduct, violations of regulations are typically met with merely a warning letter or a warning conference.
Why so lenient?
The lack of harsher consequences for violations of government regulations stems in large part from the ATF’s lack of power to take stronger action. The ATF is severely limited in its ability to carry out its key duties related to gun control, such as revoking gun dealers’ licenses and enforcing background check laws.
The National Rifle Association’s (NRA) lobbying division has pushed Congress into passing several riders that greatly diminish the ATF’s ability to function. For example, one such rider prohibits the ATF from creating a centralized online database of registered guns or gun owners. Instead, the agency is forced to search through physical records spread across 60,000 different locations when it needs to access gun registry information. Similarly, the Federal Bureau of Investigation (FBI) is required to delete background check information after 24 hours, which leaves very little time for investigation or action. This short window also makes it easier for buyers to flout regulations intended to limit how many guns they can buy in a short period of time. When someone buys more than one handgun in five days, the seller is required to file a report with the ATF and local police. However, traffickers are able to buy one gun from each of several sellers over a period of days or weeks, and the mandatory destruction of information after 24 hours makes it impossible to detect when someone has purchased several guns in this way. This hinderance is one of several enacted through the Tiahrt Amendments, a series of provisions added to the U.S. Department of Justice appropriations bill. Another prohibits the ATF from requiring gun sellers to conduct annual inventories, despite findings that gun sellers often do not know when items from their inventory are missing. The ATF is also only allowed to investigate any given seller once per year.
In addition to being explicitly prohibited from engaging in work that would advance its key goals, the ATF is further weakened by logistical issues such as staffing limitations. In 2020 the ATF had roughly 5,000 employees, far fewer than organizations like the FBI with 35,000. With a relatively small number of actual investigators able to carry out the ATF’s work, the organization is ill-equipped to carry out the duties that it is required to by federal statute. In this way the ATF is paradoxically halted from attending to the responsibilities entrusted to it.
What can be done?
Mass shootings occur all too often in the United States; there were more than 650 mass shootings in 2021 alone. Keeping guns out of the wrong hands would significantly reduce the frequency of mass shootings, but ATF is hindered from carrying out its work by the ways detailed above. It is also forbidden for the ATF’s duties to be transferred to another, better equipped, agency like the FBI. Therefore, allowing the ATF to function properly will require congressional action to reduce or eliminate the restrictions on it. This is easier said than done though, as, in addition to the NRA’s formidable lobbying, actions perceived as anti-gun may be unpopular among some groups of voters. The prevalence of strongly pro-gun attitudes in the United States makes it difficult to tighten restrictions on gun ownership, but as things currently stand, the ATF’s powers are too limited for it to be able to adequately carry out its work.