Court: Administration can demand reports on multiple-gun sales in border states

PHOENIX -- The Obama administration is legally allowed to order gun dealers in Arizona and three other border states to report when individuals buy multiple weapons, a federal appeals court ruled Friday.

In a unanimous opinion, the three-judge panel of the Court of Appeals for the District of Columbia rejected arguments by two Arizona dealers and the National Shooting Sports Foundation that the 2011 "demand letter' to the dealers from the Bureau of Alcohol, Tobacco, Firearms and Explosives violates federal laws which strictly forbid the government from creating a national firearms registry.

Judge Karen Henderson, writing for the court, said the letter, designed to help ATF trace guns purchased in the United States and used in crimes in Mexico, was directed only at federally licensed firearms dealers in four states.

"The record discloses that the letter requires information about the covered transactions from only approximately seven percent of the total number of (licensed dealers) nationwide,' she said. And Henderson said dealers are required to report not all sales but only instances where they sell two or more rifles of a specific type to the same person within a five-day period.

The judge also brushed aside claims that what ATF was seeking created an unreasonable burden on dealers. And she scoffed at the contention that the dealers might not know if the firearms they are selling fit the definition of what the ATF wants, saying that claim " blinks reality.'

Friday's ruling is a significant victory for the Obama administration. It also is a sorely needed win for ATF whose reputation was tarnished by the botched "Fast and Furious' program that let straw buyers purchase weapons which ended up not only in Mexico but at the scene of the murder of Border Patrol agent Brian Terry in 2010 near Rio Rico.

Potentially more significant, it could give the Obama administration the legal maneuvering room it needs to enact other restrictions and requirements on the sale of weapons in the face of the refusal of Congress to approve changes in federal law.

No one at J & G Sales in Prescott, one of the plaintiffs in the lawsuit, would comment on Friday's ruling. Yuma-based Foothills Firearms has since gone out of business.

But attorney Richard Gardiner, who represents the two Arizona firms, said an appeal to the U.S. Supreme Court is possible, though he wants more time to review the 30-page ruling. He said, though, the appellate decision is based on a flawed assumption of what current law requires of dealers -- and why that makes the ATF demand improper.

The ATF action stems from the agency's argument that many of the weapons used to commit crimes in Mexico originated in the United States. But William Hoover, an ATF assistant director, told a congressional subcommittee in 2008 that it was difficult to trace these firearms back to the original source, what with having to work with manufacturers.

The letter sent to the dealers demanding the information was designed to create a shortcut, allowing ATF to create its own records of weapons which were sold to those buying more than one. That resulted in lawsuits challenging the agency's action.

Among the contentions is the difficulty of determining a specific individual who bought weapons on different days during any five-day period. Challengers said that's not the way dealers keep their records.

Henderson sniffed at that excuse.

She said the fact that a dealer chooses to keep records in alphabetical or numerical order does not give them legal grounds to complain about the ATF requirement. Anyway, she said, nothing precludes dealers from maintaining their records in a chronological manner.

Gardiner also argued that federal law allows ATF to demand only information already on the sales records dealers are now required to keep. He said those records do not contain the details of whether a specific weapon fits the definition of what the ATF now wants reported, making the ATF demand beyond its legal authority.

Henderson was not impressed by that contention.

"To argue that a federal firearms licensee who purchases and sells firearms for a living would price and sell rifles without knowing its type of action and ammunition feeding source blinks reality,' Henderson wrote. And she said even assuming a dealer could not determine the characteristics of its own files, ATF has a web site and phone number a dealer can use to determine whether a rifle is "semi-automatic' and "capable of accepting a detachable magazine.'

The appellate judges also rebuffed claims that what ATF is doing runs afoul of a 1986 federal law which bars the agency from enacting any rule or regulation that creates a national firearms registry.

"The July 2011 demand letter requires the reporting of only a limited number of sales and only on a prospective basis,' Henderson wrote. "In short, because ATF sent the demand letter to only 7 percent of federal firearms licensees nationwide and required information on only a small number of transactions, the July 2011 demand letter does not come close to creating a 'national firearms registry.' '

Todd Rathner, a board member of the National Rifle Association, said the ruling is based on the flawed assumption that this kind of reporting, limited to just four states, will somehow reduce gun violence in Mexico.

"I think it it's ridiculous,' said Rathner, a Tucson resident. "I don't think it's going to do anything to prevent guns from going to Mexico.'

Henderson, however, said the ATF has "wide discretion' in deciding where to draw the lines on its reporting requirement.

Rathner also slapped ATF for putting a new burden on dealers using tracking firearms in Mexico a reason, citing the now-abandoned Fast and Furious program.

"The biggest purveyor of guns to Mexico was the ATF,' Rathner said. "Is this going to stop the ATF from sending guns to Mexico?

On a broader perspective, Rathner said ATF should get out of the law enforcement business entirely.

"They should go back to being a tax-collecting and record-keeping agency and no longer be allowed to enforce the laws of the United States because they bungled it every time,' he said. Rathner said those enforcement duties should be transferred to the FBI.

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