Comments to ATF on NFA Weapons

Michael Harless Administrative Law, Firearms Law

Today, our firm submitted comments on behalf of Gun Owners of America and Gun Owners Foundation to the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) opposing an ATF Notice of Proposed Rulemaking.

ATF’s proposed rule PR would change the requirements for applications to make or transfer certain National Firearms Act firearms and devices. Many CLEOs are opposed to an armed citizenry and, for that reason alone, simply refuse to sign NFA paperwork for any persons in their jurisdiction. However, under current rules, a person can still obtain an NFA weapon by using a trust or corporation. Under proposed rulemaking, though, the Obama ATF would require trusts and corporations to submit photographs, fingerprints and chief law enforcement (“CLEO”) approval for every “responsible person” connected with the trust or corporation.

Our comments pointed out that ATF does not have the statutory authority to require photographs and fingerprints from trusts and corporations, since the statute only requires fingerprints and photographs if the applicant is “an individual.” Indeed, based on our research, our comments explain why ATF has no authority to require CLEO signoff from anyone — even for individuals. The purpose of the National Firearms Act was taxation, and
identification of the person and gun taxed, rather than regulation, and determination of the eligibility of the buyer.

Next, our comments pointed out there is no problem associated with persons attempting to use trusts and corporations to avoid background checks, as a justification for the proposed rulemaking, ATF was only able to point to one attempt by a felon to obtain an NFA weapon — and that attempt was unsuccessful under the current system.

Then, our comments pointed out that requiring CLEO signoff in every case constitutes a de facto firearm ownership prohibition in certain parts of the country, allowing local officials unfettered discretion to dictate who may and may not receive firearms under federal law.

Finally, our comments explained that ATF may not contact the National Instant Check System (“NICS”) in order to determine the eligibility of an NFA transferee, since the NICS statutes clearly state that only FFLs may initiate NICS checks.

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