Bloomberg News

Border Gun Tracking Fought by Group Near Newtown School

January 09, 2013

A firearms group based three miles from the school where 20 first-graders were massacred asked a federal appeals court to block U.S. efforts to track sales of military-style assault weapons in states bordering Mexico.

The National Shooting Sports Foundation Inc. and two gun dealers argued that the Bureau of Alcohol, Tobacco, Firearms and Explosives doesn’t have legal authority to require about 8,500 firearms dealers in Texas, California, New Mexico and Arizona to report multiple sales of semi-automatic rifles to help trace guns used by Mexican drug gangs.

Today’s argument in Washington is the first major legal battle over the regulation of firearms since 20 children and six adults were shot to death on Dec. 14 at Sandy Hook Elementary School in Newtown, Connecticut. The Obama administration is considering gun restrictions in response.

The U.S. Court of Appeals’ decision in the case may determine how much power the federal government has to trace firearms before they turn up at crime scenes. One weapon the bureau seeks to track is the rifle used in the Connecticut shooting, the Bushmaster AR-15.

“I think a decision in this case could put to rest some of the unfounded arguments against the sensible gun-violence prevention policies being talked about by the administration and Congress,” Jonathan Lowy, director of the Legal Action Project at the Brady Center to Prevent Gun Violence, said in a phone interview. The Brady Center filed a brief supporting the U.S.

Retailers, Ranges

The gun group and two Arizona dealers who sued the ATF last year said the government hasn’t shown that the information it wants is part of a “bona fide criminal investigation,” as required by U.S. law. The gun dealers also said in court filings that the agency is improperly attempting to establish a registry of firearms owners.

The Sandy Hook shooting wasn’t raised during today’s 30- minute argument, which focused on whether the government was seeking more information from gun dealers than what’s normally recorded when making a sale.

The National Shooting Sports Foundation has a membership of more than 7,000 gun manufacturers, distributors, retailers, shooting ranges, sportsmen’s organizations and publishers, according to its website. The manufacturers include Smith & Wesson Holding Corp. (SWHC:US) and Cerberus Capital Management LP’s Freedom Group Inc, the largest U.S. gun maker.

‘Our Community’

Michael Bazinet, a spokesman for the Newtown-based organization, declined to comment on the case “out of respect for our community.” He pointed to a statement the group issued when it filed the lawsuit.

“Congress simply has not granted ATF regulatory carte blanche,” Lawrence G. Keane, the group’s senior vice president and general counsel, said in the statement on Jan. 18, 2012. “The district court’s ruling will allow the ATF to demand whatever information it wants from any law-abiding retailer anywhere in the country for any reason.”

The dispute centers on a new sales reporting requirement for semi-automatic rifles that took effect in August 2011. The ATF sent a letter a month earlier to dealers in the four states requiring them to report to the ATF sales of multiple weapons to an unlicensed buyer, including sales of more than one such rifle to the same buyer within five business days.

Covered Rifles

Rifles covered by the plan are those capable of accepting a magazine with a caliber greater than 0.22 inches, like the Bushmaster AR-15.

The gun advocates argue that a lower-court judge, in dismissing their challenge last year, “rubber-stamped” the ATF’s decision to apply the rule to states rather than to the sellers of rifles recovered in Mexico.

Richard Gardiner, a lawyer for the gun dealers, told the judges that the regulation requires them to create a new record system because they don’t track whether the weapon is semi- automatic or the type of ammunition used. He said the ATF rules create confusion because the weapon’s model number doesn’t describe whether the weapon is semi-automatic or not.

He also said the type of rifle that would be reported is too broad, noting it includes about 100 million firearms in the U.S.

“Millions of them are sold by dealers across the U.S.,” Gardiner said.

U.S. Circuit Judge Harry Edwards, one of three judges considering the case, told Gardiner that there was no record before the court showing confusion by gun dealers in complying with the rule.

Identify Buyers

Michael Raab, a Justice Department lawyer, told the judges that any dealer “worth his salt” would know from the model number whether the gun being sold is the sort of semi-automatic rifle that triggers the reporting rule. ATF is also available to answer questions from dealers as to whether a specific rifle falls under the rule, he said.

“This is really not an onerous requirement, Raab said.

ATF argues that multiple-sales reports enable the agency to quickly identify the purchaser of a gun used in a crime and help generate investigative leads about straw buyers and trafficking patterns.

Since 1975, licensed dealers have been required to report multiple sales of pistols and revolvers to each unlicensed buyer during a five-day period, ATF lawyers said.

Tracing Plan

The ATF’s gun-tracing plan came in response to reports by its inspector general and the U.S. Government Accountability Office about the flow of guns to Mexico. About 70 percent of the firearms seized in Mexico from 2004 to 2008 were from Texas, California and Arizona, the GAO reported in 2009.

The other judges on the panel are Karen Henderson and Judith Rogers.

Henderson, who was appointed to the appeals court by President George H.W. Bush, cast a dissenting vote in the court’s 2007 decision striking down Washington’s gun ban. In 2011 she was on a panel that found the District of Columbia’s gun-registration requirements and its ban on assault rifles and large-capacity magazines to be constitutional.

The shooter at Sandy Hook Elementary, Adam Lanza, used a Bushmaster AR-15 rifle with 30-round magazines as his main weapon, Connecticut State Police Lieutenant Paul Vance said at a Dec. 16 news conference.

Lanza, 20, killed his mother and himself as well.

The case is National Shooting Sports Foundation Inc. v. Jones, 12-5009, U.S. Court of Appeals for the District of Columbia (Washington).

To contact the reporter on this story: Tom Schoenberg in Washington at tschoenberg@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.


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