License to kill: how the GOP helped John Allen Muhammad get a sniper rifle

Washington Monthly, Jan-Feb, 2003 by Brent Kendall

Convenient Lack of Suspicion

Every year, more than 200,000 guns used in crimes are traced back to licensed gun dealers like Bull's Eye. Some are originally purchased by law-abiding citizens and later stolen. Others get sold (inadvertently) by dealers to "straw purchasers" who don't have criminal records but are acting as fronts for criminals. In many other cases, however, gun dealers eager to make an extra buck simply sell firearms to anyone who wants them, skipping background checks and falsifying paperwork to cover their tracks.

Of the 83,000 retail firearms dealers in America, ATF shuts down only about 25 annually. These are the most egregious wrongdoers, dealers caught red-handed fencing stolen weapons or openly selling large numbers of firearms to criminals. Yet these few cases account for only a fraction of the guns that flow to criminals from licensed dealers. The bigger problem stems from hundreds of other dealers who, through laziness, sloppy inventory control, convenient lack of suspicion, or under-the-table shenanigans, wind up arming criminals.

It is these dealers that ATF has virtually no power to control. Though it can shut a dealer down permanently--a fitting punishment only in egregious cases--ATF has no power to temporarily suspend a dealer's license, or impose a fine--steps that might remind a dealer to be vigilant about sales rules. Nor can it audit a gun dealer more than once a year, a rule that assures crooked dealers 364 days to do uninterrupted business. And because of dubious judicial precedent, the bureau's agents can't get a dealer charged with selling to a felon by going undercover and posing as felons.

Worse still, from a law-enforcement perspective, is the fact that federal law treats all record-keeping errors by gun dealers as, at most, misdemeanors--even in cases where ATF can prove that a dealer falsified records. This makes it practically impossible to bring gun dealers to court for record-keeping violations, since federal prosecutors, already burdened with more felony cases than they can litigate, usually don't accept misdemeanor referrals.

You'll be hard pressed to find another federal agency that, charged with enforcing laws dealing with legal but potentially dangerous products, must operate under similar handicaps. The Drug Enforcement Administration, which monitors the illegal diversion of prescription drugs, can pursue felony charges against a pharmacy for record-keeping problems; temporarily suspend the license of a problematic pharmacy; and when it has evidence of wrongdoing, mount an undercover approach to determine if a doctor is writing bogus prescriptions or if a pharmacist is illegally dispensing controlled substances. Even the Department of Agriculture, which is notoriously emasculated when it comes to enforcing federal standards, can, after a major food poisoning incident, temporarily stop production at an unsanitary meat packing plant, fine the plant, and re-visit for a new round of inspections in six months.