Unable to Ban Guns, Lawmakers Want to Weaponize the ATF Against Gun Dealers

Once again, lawmakers propose to use the regulatory state to punish people they don't like.

What's a politician to do when it's clear that people will vigorously resist attempts to restrict their lives? Well, you could empower government officials to arbitrarily punish anybody who might help them exercise their freedom. That's the approach favored by three Democratic members of Congress, who appear to see the path to limiting private firearms ownership in harassing gun dealers and subjecting them to the whims of government officials.

Not that they're the only legislators to wield regulations as bludgeons, but it's always a lousy idea.

Ostensibly, the "Keeping Gun Dealers Honest Act" (a name that maintains the congressional tradition of pompous bullshit) is aimed at "gun dealers who engage in illegal sales practices," which is to say it's supposed to make it more illegal to do illegal stuff. This isn't a new practice—Representatives Ted Deutch (D – Fla), Jim Langevin (D – R.I.), and Gwen Moore (D – Wis.) are hardly alone among lawmakers in thinking that what the country with the highest incarceration rate in the world (although we should take a few countries' official numbers with a grain of salt) needs is more people behind bars. And these three are also in good company in thinking that augmenting legal penalties with arbitrary harassment is the key to a better world.

As of today, the entry for the bill, formally H.R. 6075, is a placeholder lacking details. But, in a press release, Deutch's office says:

"Specifically, the Keeping Gun Dealers Honest Act would:

• Authorize increased ATF inspections of gun dealers to ensure compliance standards are met.
• Strengthen penalties for falsifying gun sales records, including longer prison sentences for violators.
• Add new types of civil sanctions for gun dealers who violate ATF regulations.
• Permit ATF discretion in issuing gun licenses.
• Allow ATF to require dealers to conduct physical inventories if more than ten crime guns are traced back to them."

Why are these new penalties and powers necessary? Because, claims Deutch, citing the Brady Campaign to Prevent Gun Violence, "just five percent of gun dealers supply 90 percent of guns used in crime," and "the combination of stringent standards and depleted budgets put ATF inspectors in an impossible situation."

So, apparently, the Bureau of Alcohol, Tobacco, Firearms, and Explosives needs more power and discretion in using that power because it's been hobbled.

You know who doesn't think the ATF has been hobbled? The ATF.

"The [licensed gun dealers] who willfully violate the laws and regulations preventing ATF from accomplishing its mission to protect the public are few," the Bureau says on its website. The ATF emphasizes that, as the law requires, it acts "where willfulness is demonstrated" in violations of the law. The law requires willfulness so that enforcement doesn't become a game of whack-a-mole over inadvertent paperwork violations and regulatory missteps—something that gun owners and dealers claimed in the past was precisely the case. Before the 1986 legal change allowing gun licenses to be revoked only when regulations are "willfully" violated, the Senate Subcommittee on the Constitution found that "[a]pproximately 75% of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations."

So, in a country with sky-high incarceration rates that have yet to achieve the sort of legal submission that they seek, Representatives Deutch, Langevin, and Moore want to mandate "longer prison sentences." And an agency found by an earlier Congress to be harassing and entrapping gun dealers and owners is to be granted "discretion in granting gun licenses," and increased power to conduct inspections and "require physical inventories."

What could go wrong?

It's worth pointing out that the weaponization of the regulatory apparatus supported in this bill is exactly what many folks on their side of the aisle rightfully complain about when it's wielded against abortion providers (though Langevin is a pro-lifer). Louise Arbour, a former U.N. Commissioner for human rights, pointed to "government regulations and restrictions targeting abortion providers that infringe upon the physician-patient relationship and make the provision of services more onerous and expensive" in the introduction to a 2009 Center for Reproductive Rights report. She added, "these regulations have little or no medical justification and would be unheard of in any other healthcare context. Indeed, their purpose appears plain: to discourage the provision of reproductive health services."

A backdoor means of achieving restrictions and prohibitions? Huh.

Florida's "Department of Health and Rehabilitative Services, in a style [ACLU lawyer Charlene Carres] likened to that of Hitler's Gestapo, had recently staged surprise inspections of clinics based on reports from pro-lifers," noted William Saletan in a 2011 Slate article. Saletan's article explained "Why good abortion providers refused to cooperate with Florida health inspectors"—a (justified, I believe) celebration of deliberate regulatory noncompliance that would have Deutch, Langevin, and Moore frothing at the mouth if exercised by gun dealers against politicized ATF intrusions.

But gun dealers would be just as thoroughly justified as abortion providers—or anybody else—in telling regulators and inspectors to go pound sand when government red tape is inflicted on them as a backdoor means of inflicting restrictions and bans that lawmakers find too difficult to pass through the normal law-making process.

And that's what Deutch, Langevin, and Moore should do too—they should go pound sand. Not that their bill is likely to see the light of day in a Congress controlled by the GOP. But the political wheels turn and they'll be back someday to wield the regulatory state as a weapon against things they don't like—just as they'll complain when that's done to activities of which they approve.

And we should be ready to keep telling them to pound sand.