The following document was submitted to the:
House Subcommittee on Treasury, Postal Service and General Government Appropriations
by representatives of the
Bureau of Alcohol, Tobacco and Firearms,
including Kent M. Cousins, Gary N. Schaible, Walfred Nelson, ATF's General Counsel and Congressional Affairs Office,
during a meeting held November 19, 1999, at B-307 Rayburn House Building,
at the request of the Subcommittee and of the House Committee on Government Reform.
Responses of Eric M. Larson, on January 12, 2000.
DISADVANTAGES OF AN ADDITIONAL GENERAL AMNESTY REGISTRATION PERIOD
-- An amnesty would suspend enforcement of the NFA. Pending investigations and prosecutions for violations of the NFA might have to be terminated. There are now pending 298 defendants under indictment for violations of the NFA and another 638 persons being considered for prosecution by U.S. Attorneys offices. These figures do not include those cases and investigations still pending at the end of FY 92 (sic).
[Note: Exactly how and why is this a problem? In other words, if these NFA weapons were properly registered, there would be no violation of the law and no need to prosecute! How many tax dollars would be saved? BATF had no such objection when they administratively removed thousands of NFR weapons from the registration requirement by declaring them Curios and Relics!]
Eric M. Larson's response: To address ATF's concern, the amnesty could be structured so as not to apply as a defense in pending criminal cases, investigations, or prosecutions.
-- Section 922(o), Title 18, U.S.C. prohibits the possession of machineguns not lawfully possessed prior to its effective date, May 19, 1986. The possession of any machinegun registered during a new amnesty period would still violate section 922(o). With respect to 922(o), the law makes no provision for an amnesty.
[Note: There is strong disagreement on this point.]
Eric M. Larson's response: It would probably up to the federal courts to decide whether section 922(o) of Title 18 overrides the NFA, or vice versa. I believe that the amnesty would override the 1986 law, but an opinion from the Department of Justice could be enlightening.
-- Amnesty would provide the criminally inclined an opportunity to possess unregistered weapons with impunity.
[Note: Criminals already possess unregistered weapons. Again, BATF had no such objection when they administratively removed thousands of NFR weapons from the registration requirement by declaring them Curios and Relics!]
Eric M. Larson's response: The "criminally inclined" already "possess unregistered weapons with impunity." An amnesty would not change that. As noted on page 11 of the January 2000 issue of _American Rifleman_, Federal law on registration was defined in 1968 by the U.S. Supreme Court in _Haynes vs. United States_ (390 U.S. 85), "when it declared that . . . existing federal case law says with great finality that gun registration only applies to the law-abiding."
-- Anyone, including felons, mental incompetents, and person whose possession of firearms would violate State and local laws, could register NFA weapons.
[Note: This is no different than the 1968 amnesty - and there has not been a single problem with the registrations! Again, BATF had no such objection when they administratively removed thousands of NFR weapons from the registration requirement by declaring them Curios and Relics!]
Eric M. Larson's response: Excluding them from the amnesty, as well as disallowing any registration that "would violate State and local laws" would address this concern.
-- A new amnesty for registering machineguns, bombs, grenades, silencers, etc., will be perceived as a retreat by the Administration from its position of favoring stronger gun controls, _e.g._, banning the possession of semiautomatic assault weapons.
[Note: Exactly how is this a problem? ...or does this really mean a "retreat from BATF's position of favoring stronger gun controls"??]
Eric M. Larson's response: Offering an opportunity to correct defective records would more reasonably be seen as enhancing the Administration's position.
-- An upsurge in the making of NFA weapons, particularly short-barreled shotguns, can be expected as individuals seize the opportunity to acquire NFA weapons without incurring the $200 making tax. Also, the $200 transfer tax would be avoided by unlawful transfers to persons who would register the weapons during the amnesty.
[Note: On what facts was this opinion based? This is pure speculation.]
Eric M. Larson's response: To counteract fraud, I would suggest a $200 tax upon any unregistered NFA firearm that was not originally commercially manufactured in its present condition (e.g., a shotgun designed to be fired from the shoulder, whose barrels were cut down outside the factory), as a condition of its registration. A firearm which was originally commercially manufactured in its present condition would qualify for tax-free registration.
-- Firearms imported with certain restrictions, such as for sales samples or law enforcement use only, would be transferred to persons who would register the weapons during the amnesty and circumvent the restrictions.
[Note: Again, pure speculation.]
Eric M. Larson's response: There are relatively few of these firearms, which can come from only two places: (1) law enforcement agencies, or (2) Class III dealers. There would be no reason for a Class III dealer, much less a law enforcement agency, to knowingly violate existing law. Also, ATF could easily disapprove any application to illegally transfer the ownership of such a firearmwhich is already legally registered.
-- It would create ill-will on the part of persons who have been prosecuted for possession of unregistered NFA weapons, had their weapons seized, or voluntarily abandoned their weapons to ATF in the past.
[Note: Does this mean these persons don't already have 'ill-will' toward BATF? Again, this argument doesn't hold water. BATF had no such objection when they administratively removed thousands of NFR weapons from the registration requirement by declaring them Curios and Relics!]
Eric M. Larson's response: There is no need to justify closed cases whose legal basis has already been established. Further, an amnesty would likely enhance ATF's public image.
-- A new amnesty would reward those who have unlawfully stockpiled unregistered contraband in anticipation of registering them during a future amnesty and encourage people to retain or acquire unregistered firearms in the expectation of other such periods.
[Note: Again, more speculation by BATF. Even if supported by evidence, would it not get NFA guns "off the streets"? - and into registered, controlled collections? When BATF administratively removed thousands of Curio & Relic NFA weapons from the requirement, they voiced no such objection!]
Eric M. Larson's response: There is no evidence to suggest that an amnesty would encourage people to stockpile unregistered NFA weapons in hopes of registering them during a future amnesty.
-- An additional amnesty would only be a temporary solution. It would only be a matter of time before people would claim they did not know about the amnesty or did not realize they had an NFA weapon in their possession.
[Note: Then clearly, the solution is more than one amnesty!]
Eric M. Larson's response: Ignorance of the law is generally not recognized as a legitimate defense. In fact, an amnesty would strengthen ATF's legal cases by, among other things, enhancing the accuracy and reliability of ATF's records.
"Power tends to corrupt and absolute power corrupts absolutely,"
Lord Acton in a letter to Mandell Creighton, bishop of London, ca. 1887."
Selected Quotes by John W. Magaw, BATF Director. in a letter to Eric M. Larson, dated Nov. 19, 1999, regarding a proposed amnesty:
"As you know, the Secretary of the Treasury has authority to establish amnesty periods if such periods would contribute to the purposes of the NFA."
"Since 1968, the Department of the Treasury and ATF consistently have taken the position that ......granting an additional amnesty period would be of no value."
"We do not support your proposal for another amnesty period."
"Moreover, further amnesty periods would disrupt our efforts to enforce the NFA."
"The fact that the registrant [NRFTR] is deceased does not affect the validity of the registration."
"The NFRTR is reliable and effective for law enforcement purposes, as it accurately reflects the identity of the person legally entitled to possess a particular firearm."
[A final quote: The final report on the Waco hearings by the joint House Committee on Government Oversight and Reform and the Senate Judiciary Committee: "The ATF's investigation of the Branch Davidians was grossly incompetent. It lacked the minimum professionalism expected of a major federal law enforcement agency."]