The ATF: A Portrait of an Impotent Bureau

If there’s one federal agency that gun control advocates will want strengthened after Friday’s killings in Newtown, its the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Will Congress actually do it, though?

Don’t bet your bulletproof vest fund on it. The ATF has been defanged for years. After the Beltway Sniper murders of 2003, Brent Kendall, writing for this publication, detailed how conservative lawmakers (both Republican and Democrat) have hamstrung the bureau, leaving it unable to punish the sketchy merchants who wind up arming the majority of criminals.

As Kendall described the ATF’s deficiencies:

Though it can shut a dealer down permanently–a fitting punishment only in egregious cases–ATF has no power to temporarily suspend a dealer’s license, or impose a fine–steps that might remind a dealer to be vigilant about sales rules. Nor can it audit a gun dealer more than once a year, a rule that assures crooked dealers 364 days to do uninterrupted business. And because of dubious judicial precedent, the bureau’s agents can’t get a dealer charged with selling to a felon by going undercover and posing as felons.

Worse still, from a law-enforcement perspective, is the fact that federal law treats all record-keeping errors by gun dealers as, at most, misdemeanors–even in cases where ATF can prove that a dealer falsified records. This makes it practically impossible to bring gun dealers to court for record-keeping violations, since federal prosecutors, already burdened with more felony cases than they can litigate, usually don’t accept misdemeanor referrals.

Thus, people who grease the movement of guns across state lines – either willingly or recklessly – are more likely to go unpunished.

The dealer that serviced John Allen Muhammad and Lee Boyd Malvo (Malvo admitted to stealing a Bushmaster from the man) was eventually stripped of his license to sell firearms. But the majority of sketchy gun owners, however, seem to operate with impunity. A report published by a pro-gun control group using primarily ATF data found that in 2009, ten states supplied nearly half the 43,000 guns linked to crimes across state lines. And 40 percent of guns are sold without any sort of background check. Surely, a more robust ATF could help stem the flow of guns from states with lax laws.

However, the bureau won’t be granted any augmented power without an epic meltdown from the Right. The lion’s share of public scrutiny that the bureau has received in recent years has come from conservatives, mainly concerning the botched gun-walking operation “Fast and Furious.” Firearms that the ATF clumsily attempted to track inside of Mexico wound up being used in the murder of Border Patrol Agent Bryan Terry. There is much controversy about what actually happened. But the NRA has accused the Obama administration of conducting Fast and Furious as a sort of false flag against the second amendment (seriously).

So I’m sure that any bill that proposes to expand the ATF’s powers will just waltz through the Tea Party controlled House.

Samuel Knight

Samuel Knight is a freelance journalist living in DC and a former intern at the Washington Monthly.