But for Some Flubbed Paperwork …

Editor’s note: In addition to his work at The Dispatch, Kevin D. Williamson is a writer in residence at the Competitive Enterprise Institute, in which capacity he has written about a number of subjects, including climate policy and regulation, for a number of publications. This series on the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and firearms regulation is part of that work. Today’s installment looks at how firearms dealers are losing their licenses because of errors with paperwork and other picayune procedural issues, not because they are selling guns to criminals.

Part 1: What the ATF Does—and What It Doesn’t Do

Part 2: The ATF Is a Tax Collector

Part 3: The ATF Is an Arbitrary Regulator

Part 4: The View From the Back Office

Here is an interesting story about how gun regulations really work.

A man walks into a gun shop and buys a gun. He fills out his paperwork and starts the background check. Those background checks do not always go as quickly as you might expect: Sometimes the results are instantaneous, sometimes they take hours or even days.

I have some personal experience with this. Every now and then I get an instant approval, but in the great majority of cases, my background checks go into “research,” meaning that the transaction is delayed for a few hours or, in some cases, for days or weeks. What that means, practically, is that I often fill out my paperwork, leave the shop, and then come back later in the day, or the next day, when I have Uncle Sam’s permission to take home the item I have just purchased. (I suspect that the issue is that I have a fairly common name and have had a bunch of home addresses over the years. But it could be anything.) And for some reason—probably that reason—the guy in our story left without his gun that day. He wasn’t a prohibited buyer; he passed the background check just fine. It just took a while. And so he rolled back in a few weeks later and picked up his pistol or his rifle or whatever and went home. No problem.

Except that the store seems to have made the mistake of employing an English major, who got his date calculations flubbed and let the firearm go on the 31^st day after the original background check was submitted. Anything past 30 days, and you are required to start from scratch with the background check. A few days later, the mistake was discovered by the back office, and so the shop did the right thing: They called up their customer, explained their error, persuaded him to bring the firearm back in, took custody of it, resubmitted his background check, and gave him the weapon when he passed it again. Rules are rules and the mistake was an actual mistake, but it was a minor one involving a guy who had just passed a background check and who was not a prohibited buyer.

But the shop almost lost its license over it. In fact, it might very well have if not for the fact that the business in question is a big-box chain that can afford good lawyers and probably has some political connections.

Dealers all over the country are reporting the same thing. Minor infractions that once would have resulted in a warning letter are now being used as pretexts to revoke retailers’ licenses. Sen. Joni Ernst, an Iowa Republican, was concerned enough about aggressive new ATF practices that she wrote up a bill to try to reel them in (though apparently not concerned enough to speak to your favorite correspondent about it—she and her staff refused interview requests and declined to answer questions in writing. With friends like these …). In 2022, there were 88 licensure revocations; in 2023, there were 157. (In the last six months of 2021, there were only five.) Another 165 FFLs kept their licenses but were put through revocation hearings.

We aren’t talking about dirty dealers diverting weapons to gangs or the black market here. Not in the vast majority of the cases. I spent a few days reading through ATF revocation reports, and I have a hard time imagining that any of these actions had any effect at all on violent crime. A typical case is that of a small business in Texas—an Ace Hardware shop that sells some firearms—run by a fellow who doesn’t seem to be very good with computers. The guy was having his customers fill out their forms electronically, printing out a copy for them to sign, and then printing out another form for his records after the transaction was completed. The thing is, ATF forms have individual serial numbers, and he was mixing up the pages, basically using three different forms to produce one complete one. His electronic system was old and out of compliance with current regulations, and some of his records were still kept in hard copy. The guy wasn’t selling guns to prohibited parties—he was just a hardware-shop owner who got confused by the computer system and paperwork and couldn’t get himself squared away. So he lost his license.

And maybe he should have. But taking away his license is not going to make anybody in this country safer from armed criminals, who do not get their guns after passing a background check at an Ace Hardware in Nocona, Texas.

We see license revocations happening in response to that sort of thing. For example, people with concealed-carry permits do not need to go through background checks to buy a gun (the idea being that the background check for the license was sufficient) but you can’t accept an out-of-state license. As one industry insider tells me, part of the issue is that the ATF revokes licenses for “willful” violations of regulations, but there is no statutory definition of “willful” and “courts have interpreted it very broadly” when ATF goes after a dealer. “Where’s the public safety risk?” he asks. “It’s a mistake, but there’s no real risk. But they’ll go after the license. In the past, that didn’t happen.”

“The top of our wish list would be that they do away with the counterproductive zero-tolerance policy, which is harming the relationship between the ATF and the industry,” says Lawrence Keane, senior vice president for government affairs at the National Shooting Sports Foundation, an industry group. “ATF acknowledges that the industry has cooperated with them to get bad guys—trigger-pullers. On the regulatory side, they need to develop a culture of customer service, something more like the industry’s experience with NICS [the National Instant Criminal Background Check System]. Unfortunately, there isn’t a culture of that. We’d also like to see them make better use of technology.”

ATF has a funny attitude toward technology. The agency long resisted developing electronic background-check forms. When it finally did so, it rejected an industry model that would have automatically blocked the submission of forms in which a would-be buyer had answered a question in a disqualifying way. Keane, who was involved in the project, was puzzled by that choice. But then he figured it out: “ATF didn’t want to do that because they wanted to create evidence for criminal prosecutions—that was their answer, rather than stopping transactions in the first place.” Keane would like to see a more customer-oriented ATF, but he is skeptical of proposals for radical reform. “We’ve never supported disbanding the ATF,” he said. “We’re not sure it would be beneficial to the industry to have Homeland Security or the FBI, agencies with no real experience being a regulator, fill that role.”

That regulatory burden sits heavily on retailers, but it also sits heavily on something less frequently appreciated: a much-welcomed bright spot in old-fashioned American manufacturing.

American gunmakers are thriving, and even overseas firms such as Austria’s Glock and the Swiss-German gunmaker SIG Sauer have made large investments in manufacturing in the United States. Some European firms have U.S. subsidiaries that are bigger than their mother companies. “There’s been tremendous growth in manufacturing in the past several years,” Keane says. That’s been driven by soaring demand. There will often be spikes in demand followed by declines back to something closer to historical levels. But while the COVID-era spike in gun sales has moderated somewhat, sales remain significantly higher than before COVID.

“We come off the peaks, but the valley is higher than before,” Keane says. “There is more diversity in the customer base than there was 20 years ago, and manufacturing has shifted here. There’s a healthy import-export market, with [Glock products] made in the United States and exported back to Austria, for example.” Keane says manufacturers have a generally good relationship with ATF, but there are persistent problems, too: “We don’t get clear answers from them. We get a lot of talk, but we don’t always get real answers to real questions. They need to stop moving the goalposts” on regulatory interpretations.

Manufacturers are hesitant to speak about ATF at all, even off the record. But industry sources say that while they often have positive relationships with the ATF personnel with whom they interact, they also get the impression that decisions are really being driven by more senior people at the DOJ and that political calculations, not public safety, dominate. “We have regulators whose bosses want us to go out of business,” one executive says.

That political pressure is felt outside of government, too. Ruger, one of the largest firearms manufacturers in the United States, has been debanked on more than one occasion. In a 2023 quarterly statement, the firm reported that “we have been notified twice in the past five years by two of the nation’s largest banks, Bank of America and Wells Fargo, that they would not provide us with any credit because of the lawful products that we design, manufacture and sell.”

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