Having failed to pass gun bans to curtail Americans’ purchases of firearms, the Biden administration appears now to be attempting to restrict the supply of guns with a new “zero tolerance” policy at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) that has put nearly 2,000 gun sellers out of business in the past two years, according to one lawsuit.
Starting in 2021, the ATF implemented an aggressive agenda in its inspections of Federal Firearms Licensees (FFLs), in many cases permanently revoking licenses over what defendants say are minor clerical errors.
“This is an end-around gun ban, because you start putting gun dealers out of business, and now, all of a sudden, it’s very difficult for people to purchase firearms,” Erich Pratt, senior vice president of Gun Owners of America (GOA), told The Epoch Times.
GOA filed a lawsuit on July 11 against the Biden administration in response to the ATF’s zero-tolerance enforcement.
The GOA lawsuit is requesting that the courts issue an injunction to end the ATF’s zero-tolerance policies and “declare that the [ATF] has acted unconstitutionally, arbitrarily, capriciously, and contrary to law, in the establishment of and/or application of standards for revocation of federal firearm licenses.”
But a recent GOA court filing reads: “In addition to revocations, ATF has coerced and intimidated an ever increasing number of FFLs into ‘voluntarily’ ceasing operations. In fact, the number of FFLs who discontinued business following a compliance inspection increased from 96 in 2020 to 789 in 2021 (the year that ‘zero tolerance’ was adopted) to 1,037 in 2022, an overall increase of more than 1,000%.”
The numbers the GOA cited correspond to investigations categorized by the ATF as “resolved as discontinued.”
Gun Dealers Close Doors at Record Rate
According to The Trace, the self-described “newsroom dedicated to covering gun violence,” “[ATF] investigators conducted just over 7,000 inspections in 2022, compared to more than 13,000 in 2019,” before the COVID-19 pandemic curtailed investigations.
David Chipman, a Biden nominee for heading the ATF who withdrew when his nomination failed to pass the Senate, told The Trace: “The trendline is good. I think we have to applaud the agency for holding the industry accountable.”
The Gun Control Act of 1968 (GCA) provides the basis for federal gun control, including regulations on interstate trade, firearm serial number marking requirements, establishment of “prohibited persons” who are prohibited from buying guns, and licensing and record-keeping requirements for FFLs. The ATF is charged with enforcing this law.
One area of paperwork that often gets FFLs into trouble is Form 4473, which provides information on the purchaser and the weapon for the required background checks.
The GOA complaint reads, “Although these firearms transfer records originally included fewer than 30 information items ... the DOJ has, by regulation, incrementally and massively increased the data required on modern firearms transaction records to over 100 distinct data points, although Congress has never enacted any requirement that FFLs gather or maintain this information.
Clerical Errors Considered ‘Willful’ Violations
The GCA authorizes the ATF to revoke FFL licenses if record-keeping errors are “willful.”In cases he has defended, the ATF is considering even small errors in filling out Form 4473 to be “willfulness,” according to Mr. Harris.
“When you’re writing down a serial number, you may transpose two digits, or you may leave one out, or a 6 may look like a G,” he said. “There are all kinds of errors that can happen that are completely innocent and have nothing to do with willfulness, but the ATF has developed this theory, and courts have allowed it, that says repeated errors are evidence of willfulness and therefore they’re a basis for revocations.”
Mr. Pratt said, “The ATF comes in and they say, ‘We gave you a manual years ago that you should have read, so any mistakes you make, no matter how minimal or clerical, they are willful violations. It’s such an unrealistic standard; if it was applied to the ATF, they would be put out of business because they’ve been shown to make these errors too.”
One former FFL owner, quoted anonymously, said the tone between gun shops and ATF inspectors has changed dramatically in recent years. In the past, he said, the ATF worked with FFLs that were having problems to get them back into compliance rather than shutting them down.
“We went from having a great relationship with our inspectors at the ATF to really just being in constant fear of what we see as a political retaliatory move against our business and our industry,” he said.
Much of the process of deciding whether to revoke licenses has been taken away from the inspectors, who would be able to make a judgment call about whether violations were intentional, according to Stephen Stamboulieh, an attorney at GOA. The ATF uses a computer system called Spartan, he said, into which ATF inspectors input data on violations, and an algorithm decides the FFL’s fate.
Very few of the violations are intentional, Mr. Stamboulieh told The Epoch Times, “because they don’t want to go to jail, and they don’t want to lose their license, their livelihood, and their ability to put food on the table for their family.”
“I don’t know what else to say about zero tolerance, except it’s wrong and it’s especially wrong in situations like this, and it leads to stupid results,” he said. “And the ATF is revoking licenses left and right, all across the United States.”
Critics of the Biden administration’s zero-tolerance policy also charge that it’s being applied unevenly, targeting smaller family-owned shops that don’t have the money to defend themselves in court.
“They’re not putting the Palmetto State Arms out of business; here locally, they’re not putting the Shark Coast Tacticals out of business for noncompliance,” a Florida gun dealer who asked to remain anonymous told The Epoch Times, referring to larger firearms dealers. “They’re putting the small guys out that don’t have the resources to fight.”
The GOA argued in its lawsuit that “the Second Amendment does not permit the wholesale elimination of commerce in arms, or its concentration in a few large and anti-gun multinational corporations (such as Walmart) that refuse to sell most guns aside from a few shotguns and bolt-action rifles.”
