ATF Says: Federal Firearms Licensees Must Follow Federal Law, Notwithstanding Contrary State Laws

From the ATF, released July 26 but just posted on Westlaw, an Open Letter to All Missouri Federal Firearms Licensees (there's a similar one as to Texas, with regards to silencers/suppressors):

This letter provides guidance on your obligations as a federal firearms licensee. The guidance is intended to assist you in meeting these obligations. This letter does not impose any new obligations. It merely confirms the continuing applicability of existing federal obligations.

Missouri House Bill Number 85, Second Amendment Preservation Act ("the Act" or "SAPA"), signed into law by Governor Parson on June 12, 2021, has generated questions from industry members and firearm owners as to how this Missouri state law may affect them while engaged in a firearms business activity or seeking to acquire a firearm. Section 1.420 of the Act states that "federal acts, laws, executive orders, administrative orders, rules, and regulations" falling into five categories of regulations relating to firearms ""shall be considered infringements on the people's right to keep and bear arms, as guaranteed by Amendment II of the Constitution of the United States and Article I, Section 23 of the Constitution of Missouri." SAPA § 1.420. The Act further provides, among other things, that any such purported infringements "shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state." Id. at § 1.430. The categories of federal laws and regulations that the Act defines as "infringements" are:

(1) "[a]ny tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not common to all other goods and services and that might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens,"

(2) "[a]ny registration or tracking of firearms, firearm accessories, and ammunition,"

(3) "[a]ny registration or tracking of ownership of firearms, firearm accessories, and ammunition,"

(4) "[a]ny act forbidding the possession, ownership, use, or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens" (with " "law-abiding citizens" defined as those who may possess firearms under Missouri law), and

(5) "[a]ny act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens."

Id. at § 1.420.

As the Justice Department advised Missouri's Governor and Attorney General in a June 16, 2021 letter, because the Act "conflicts with federal firearms laws and regulations, federal law supersedes" the Act. Accordingly, all provisions of federal laws--including the Gun Control Act (18 U.S.C. § 921-931), the National Firearms Act (26 U.S.C. § 5801-5872), and their corresponding regulations--continue to apply and remain in full effect in Missouri.

In particular, federal law requires a license to engage in the business of importing, manufacturing, or dealing in firearms, or importing or manufacturing ammunition, even if the firearms or ammunition remains within the same state. All firearms manufactured by a licensee must be properly marked so they can be traced by law enforcement officers if later used in a crime. Additionally, each licensee must record the type, model, caliber or gauge, and serial number of each firearm manufactured, imported, or otherwise acquired, and the date such manufacture, importation, or other acquisition was made; subsequent transfers of these firearms must be recorded. In most instances, a Firearms Transaction Record (ATF Form 4473) and a National Instant Criminal Background Check System background check must be completed prior to transferring firearms to an unlicensed person. See 27 CFR §§ 478.41, 478.92, 478.102, 478.124, 478.125. All federal restrictions on the receipt and possession of firearms also continue to apply, regardless of whether an individual is a "law-abiding citizen" as defined by the Missouri law. These requirements, as well as all provisions of federal laws regarding the possession, acquisition, and transfer of firearms or ammunition (including the Gun Control Act (18 U.S.C. §§ 921-931), the National Firearms Act (26 U.S.C. §§ 5801-5872), and their corresponding regulations) remain in full force and effect.

If you have any questions regarding the federal firearms laws and regulations, please contact your local ATF office. ATF works closely with the firearms industry and appreciates the important role the industry plays in combating violent crime.

Seems like good advice; perhaps some of the relevant federal laws might be struck down (though I wouldn't hold my breath), but until they are, FFLs would be wise to follow them.

Comments

[Dr. Ed 2]

How come this can't be nullified by a friendly Federal judge, just like Trump's similar efforts were?

[Sarcastr0]

This is a guidance letter; it makes no new policy.

[Armchair Lawyer]

Except when guidance letters do make new policy....

https://www.cato.org/blog/justice-department-tackles-rule-guidance-letter

[Michael P]

Is there a good argument that "continue to follow existing federal laws and directions" is actually new policy?

[Greg J]

That's not what they're sayign.

What they're saying is "these new State laws don't apply to you." Since the laws are new, the Fed's could not have previously had a policy about them.

So, by definition this must be "new policy"

[Sarcastr0]

As Michael says, *this* letter makes no new policy.

[Sebastian Cremmington]

This is a product of Heller’s distortion AND undermining of the 2A. The 2A is a federalism provision…and the individual RKBA is a pre-existing right as expressed in Cruikshank.

[dwb68]

The "distortion" long predates Heller. See also: NFA, which dresses up Federal police power as a tax.

[perlhaqr]

And given the size of it at the time it was passed, it's a penaltax, too. Roberts was clearly just following precedent with Obamacare.

[Longtobefree]

Excellent analysis; now do immigration and San Francisco.

[dwb68]

Specific enumerated powers, such as Congress' power over immigration and naturalization, are rarely enforced. However The Federal governments hidden police power, implemented through the commerce clause, is always enforced with rigor, despite the seeming limitaction imposed by the bill of rights. So take your Sanctuary State bs somewhere else.

[orgy]

or how about Marijuana

[MatthewSlyfield]

Two Separate issues.

The Federal government can not compel state local authorities to enforce federal law. Federal Agencies can step in and do so directly.

Guns: Federal requirements for FFLs are and have always been enforced directly by the federal ATF.

Marijuana: Enforcement has historically been heavily dependent on state/local LE. DEA could step in directly but lacks the manpower to do so effectively and is choosing to direct it's resources to states where they can get assistance from local LE.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Did SF say federal immigration law was null and void? No, they just said they would not spend any money enforcing it.

[Aktenberg78]

No, they prohibited private people from cooperating with federal agents.

They should all be gassed.

[buckleup]

Just pull a Biden and wait out the court case. By 2023 the Congress will be out of democrat hands and by 2025 the white house too. Then the DoJ can pull a Garland and reverse course.

[Sarcastr0]

If you think you can predict the political landscape in 2024, your partisanship has given you brainworms.

[Craig Johnston]

So they sent an open letter to FFLs saying that a license was required for intrastate commerce in firearms? I would think FFLs would already be in favor of that. They should send an open letter to people who don’t have an FFL.

[Dr. Ed 2]

whom would the latter be purchasing from?

[Craig Johnston]

Since they are saying that manufacturing and dealing requires a license, the non-FFL dealers would buy guns from the unlicensed manufacturers in the state and sell them to buyers within the state.

[Robert Efroymson]

This must be one of the least surprising posts ever. Federal officials say Federal licensees must follow Federal law? There is no ‘law abiding citizen’ exception to those laws?

Actually that would be pretty cool: I’m a law abiding citizen, so the laws don’t apply to me, so even if I break them I remain…. A law abiding citizen.

[Kevin Smith]

The Missouri law isn't intended to supersede federal law, its intended to provoke a constitutional challenge to the interpretation of the interstate commerce clause as it applies to intrastate commerce

Montana's Firearm Freedom Act already went down this path, and the 9th circuit found that federal law still prevailed. Perhaps they are hoping a different circuit and more conservative SCOTUS will be willing to rein in the commerce clause.

I doubt it will though, the prevailing precedent is from Gonzales v. Raich (2005) where the court found that not only does the interstate commerce clause allow Congress to regulate intrastate commerce, but non-commercial activity as well

[Aladdin's Carpet]

None of this, or the commentary surrounding this, makes any sense.

"shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state"

How exactly is this in conflict with the federal law? It doesn't say invalid IN this state, it says invalid TO this state.

In other words, you still must follow federal law in Missouri. The statute does not contradict this! All the statute says is that the state will not recognize or enforce federal law.

I fail to see how it prohibits a federal official, under the statutory language, from enforcing federal law. If it said that, yeah there would be a conflict and federal law applies.

I just don't understand where the conflict is. The state said it will not enforce federal law. The ATF said federal law applies, and the ATF will enforce it. That makes sense.

If the state tried to arrest those ATF people who violated state law, that would be a problem. I dont see how they did that here.

[CJColucci]

Nobody actually did anything with the Kentucky and Virginia resolutions or the South Carolina nullification declaration either. The latter sure pissed off Andrew Jackson, though.

[Aladdin's Carpet]

Right, and then as soon as Jackson sent in the army and the state responded in kind, then we had a problem.

What I'm confused by is that the state has never said it will act against federal officials enforcing federal law, which would trigger the supremacy clause.

I'm just spitballing, this could be completely wrong and if it is please let me know lol.

[post hoc ergo propter hoc]

Yeah, iirc there was an OK (or Kansas or something?) case a few years ago where their governor/rep said eff fed law about these and some poor guy followed that advice, was federally prosecuted, but happy ending, sentenced to probation bc relied on idiot politician, 1st offense, etc. But also can't own weapons anymore bc felon/ dumbass. This guidance might be trying to avoid that same situation, though link to newspaper article might be more effective.

[Titus PUllo]

Here we go again...the battle when the Federal Govt acts outside the Constitution and the need for the States who created the Federal Govt to step in...the obvious need for an amendment for a supermajority of States which can nullify any Federal Law is needed for our liberty. Why does the ATF even exist? Where in the Constitution does it give the Feds any power over firearms? or alcohol or tobacco? Let me guess this is an FDR agency right?

[Aktenberg78]

These are all symbolic until a state does something. I'd love one to deploy its militia against federal agents. Hopefully we can have another short heard round the world.

[perlhaqr]

"The shart heard around the world"? Sounds messy.

[ReaderY]

Ahh, nullification.

While I agree it is not for a state legislature to nullify Supreme Court precedent, I am also inclined to think that the Supreme Court is wrong here. Congress should not be able to regulate the simple possession and private personal use of articles just because they previously passed through interstate commerce.

Perhaps this example illustrates the absurdity of this expansive a view of federal reach. Whatever interstate commerce may be, it is the opposite of privacy. Under current law, while there may be a right to the use of contraceptives, it would appear there is not a right to the use of contraceptives which previously passed through interstate commerce. If the federal government retains jurisdiction over all uses of articles which once passed through interstate commerce, it retains jurisdiction to regulate their use even in bed.

I honestly don’t see why guns and contraceptives should be treated differently. Arms are an enumerated, textual constitutional right. Contraceptives were simply made up by the Supreme Court. Atextual constitutional rights, whatever their merits, should not be treated as superior to textual ones. If Congress can regulate simple possession and use of firearms which previously passed through interstate commerce under the Commerce Clause, it ought to be able to do the same for contraceptives.

[Noscitur a sociis]

You've got it backwards. Protected rights (including unenumerated rights) are restrictions on Congress's otherwise-enumerated powers. So even if Congress's interstate commerce power could otherwise extend to restricting or prohibiting intrastate contraceptive sales (which, under current Supreme Court precedent, it almost certainly could), under Griswold that would still be illegal (just as it would be if Congress tried to its enumerated power to ban contraceptives in Washington DC).

You could argue that the Second Amendment similarly prohibits the regulations at issue here, but no court has yet agreed with that argument. And it doesn't really have anything to do with an expansive reading of the commerce clause.

[John F. Carr]

It's a pretty good memo. Not the kind of ass-covering that HR sends out ("employees are expected to follow all company policies as well as federal, state, and local laws [and you have to figure out for yourself what that means]").

[docduracoat]

The Takeaway here is that silencers are ridiculously easy to make.
Anyone with a machine shop can easily manufacture high quality silencers.
Private parties could also manufacture silencers for their own use.
As long as these people do not come to the attention of federal authorities, these acts are now legal in the state of Missouri.
So while Gun shops and federally licensed firearm/silencer manufacturers will have to continue to comply with federal law or lose their licenses, people are now free to make their own silencers and give or sell them to their friends.
Until they do something stupid like advertise, or post on social media, the feds will have no way of knowing this activity is taking place.
And state authorities find them shooting in their backyards, public ranges, or out in the woods will take no action against them.

[Noscitur a sociis]

Note that the Second Amendment Preservation Act did not expressly repeal the state ban on possessing silencers in violation of the NFA, Mo. Stat. § 571.020(1)(6)(c). So in addition to the generally questionable wisdom of "go ahead and commit federal felonies, they probably won't find out", it's far from clear to me that you'd be in the clear as a matter of state law either.

[BillyG]

I've seen some other discussion on ATF Memos and basically the ATF effectively says "Most Restrictive Applies". So if the ATFs regs are the strictist, you follow the ATF Rules. If the State enacts additional regs, you have to follow those. Multiple agencies simultaneously on the same items....always a recipe for trouble & so much for separation of power.

[Greg J]

Please correct me if I'm wrong here, but IIUC States can't take away rights given to you by the Federal Constitution, but they can give you more rights that the Federal Constitution gives you (see, for example, PruneYard).

According to this law, Article I, Section 23 of the Constitution of Missouri, grants people the following rights (see article).

How can the Federal Government be allowed to trample on those rights? I would say the answer is "they can't."

[Brett Bellmore]

The issue here is that the Supremacy clause only applies to constitutional laws, unconstitutional 'laws' aren't even legally laws.

And the 'laws' in question here wouldn't be constitutional even without the 2nd amendment, as they regulate intrastate commerce expressly outside Congress's regulatory authority.

[Carl_N_Brown]

My home town has plaques commemorating the town's role as a waystation of the Underground Railroad. My sister helped folks remodel a very old house, found a hidden bedroom with an escape hatch, found out it was for free blacks staying over on the trip north to Canada.
My home state has long had a provision that the state will not aid the federal government in enforcing any law that violates Article I of the state constitution, Declaration of Rights. That includes Art. I Section 26, right to keep and bear arms.
Unconstitutional laws should be treated as null and void.