The Bureau of Alcohol, Tobacco, Firearms and Explosives sent a proposed regulation to the White House for review that would impose new requirements on gun trusts, Julian Hattem of The Hill reported Wednesday.
“The Department of Justice is proposing to amend the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regarding the making or transferring of a firearm under the National Firearms Act,” DOJ announced on RegInfo.gov, saying:
The proposed regulations would (1) add a definition for the term ‘responsible person’; (2) require each responsible person of a corporation, trust or legal entity to complete a specified form, and to submit photographs and fingerprints; (3) require that a copy of all applications to make or transfer a firearm be forwarded to the chief law enforcement officer (CLEO) of the locality in which the maker or transferee is located; and (4) eliminate the requirement for a certification signed by the CLEO.
A problem with this, as “Gun Trust Lawyer” David M. Goldman explained in his “What is a Gun Trust?” information brochure, is that “Many CLEOs around the country are refusing sign or even acknowledge the ATF Forms. There is no legal remedy in most states to force the review of these forms.”
What the administration and the media are describing as a “loophole” can, under such official deliberate indifference, be the only way a citizen trying to follow the law can exercise what should be a right. That no violent crime-reducing justification has been advanced pointing to gun trusts as a problem shows this move to be about the Obama administration flexing its executive action muscles. It also shows the intent is hostile, and it’s being done to further limit gun ownership in the absence of legislation being passed by the peoples’ representatives. And it provides a clue into what can be expected from new director B. Todd Jones, as this is reportedly a resurrected effort.
“This story has been in circulation for years,” attorney Goldman told Gun Rights Examiner when asked for his comment on The Hill piece. “Note this is a 2012 issue that was never acted on. It is possible they could try to introduce it this year and act on it during the term.”
“This is yet another regulation that will be promulgated to create a tripwire for a Federal Firearms Licensee to step on if they are ill-advised or ill-prepared,” added Chris Chiafullo, National Coordinating Counsel for FFLGuard, a cooperative legal program for gun dealers, when asked how the proposed change would affect his clientele. “Inadvertent violations of this new regulation will surely be a trigger for administrative action against an FFL, and is yet another obstacle placed in the path of law-abiding FFL’s trying to be ‘in the business’ of selling firearms.
“All additional regulations do is present impediments for honest firearms sellers, while criminals continue to get their hands on these (and other) guns through more nefarious means,” he added. “FFLs who don’t have someone to be on top of the onslaught of regulations that are raining down on them from now until the next administration will be dead in the water.”
The draft rule will be available for public review after the White House has its chance to input revisions.
UPDATE/Addendum from Joshua Prince of Firearms Industry Consulting Group:
The proposed notice mentions a requirement that "the applications to make or transfer a firearm be forwarded to the chief law enforcement officer (CLEO) of the locality in which the maker or transferee is located," with little consideration for state law that prohibit such disclosure. For example, Pennsylvania law, and several other states, prohibit the state, or any agency thereunder, from creating or maintaining any form of registry of firearms. See, 18 PA.C.S. Section 6111.4. Ostensibly, the new Rule is going to require individuals to certify that he/she has submitted a copy to his/her CLEO, when such submission may be precluded by state law. This will place the individual in the situation of either making false statement to federal authorities or having no ability to submit the application.
Additionally, the requirement for a "responsible person" is absurd, especially in the context of a trust. The 7th Circuit Court of Appeals in US v. Miller, 588 F.3d 418, held that a trust is a proper legal holding entity, for an individual who is prohibited from owning firearms but who has not lost his/her property interest in the firearms. Obviously, the trust document must take into consideration the prohibited status of the Settlor/Grantor, as the Court states; however, the ATF''s Notice seems to suggest that such an individual, in such a circumstance, would be required to be listed as a "responsible person," which would result in the application being denied. If the proposed regulation does this, it would be in direct violation of the Court's holding. The ATF seems to have failed to consider that while an individual may lose his/her possessory interest in a firearm, he/she may retain his/her property interest in the firearm. Otherwise, it would constitute a taking by the Government.
See important update: NFA firearms collectors group initiated ATF gun trust rule change
The latest GUNS Magazine "Rights Watch" column is online, and you can read it before the magazine hits the stands. B. Todd Jones may be ATF's new director, but the path he's heading the bureau down is decidedly the same old one Holder an Obama want him to stay on. Click here to read "New Director, Same Old Direction".
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