Gun Control Legislation
William J. Krouse
Specialist in Domestic Security and Crime Policy
July 11, 2012
Congressional Research Service
7-5700
www.crs.gov
RL32842
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Gun Control Legislation
Summary
Congress has debated the efficacy and constitutionality of federal regulation of firearms and
ammunition, with strong advocates arguing for and against greater gun control. Since March
2011, much of the gun control debate in the 112th Congress has swirled around allegations that the
Department of Justice (DOJ) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
mishandled a Phoenix, AZ-based gun trafficking investigation known as “Operation Fast and
Furious.” In the Consolidated and Further Continuing Appropriations Act, 2012 (P.L. 112-55),
Congress included a provision that reflects a Senate-adopted amendment that forbids the
expenditure of any funding provided under it to be used by a federal law enforcement officer to
transfer an operable firearm to a person known or suspected to be connected with a drug cartel
without that firearm being continuously monitored or controlled. The act, however, does not
include language adopted during House full committee markup to prohibit ATF from collecting
multiple long gun sales reports in Southwest Border states.
The 112th Congress continues to consider the implications of Operation Fast and Furious and
several gun control issues. On June 28, 2012, the House passed a resolution (H.Res. 711) citing
Attorney General Eric Holder in contempt of Congress for his failure to produce additional,
subpoenaed documents related to Operation Fast and Furious to the Committee on Oversight and
Government Reform. On May 18, 2012, the House passed the National Defense Authorization
Act (NDAA) for Fiscal Year 2013 (H.R. 4310), which amends a provision that limits the
Secretary of Defense’s authority to regulate firearms privately held by members of the Armed
Forces off-base. On May 10, 2012, the House passed a Commerce-Justice-State appropriations
bill (H.R. 5326) that would fund ATF for FY2013 and, on April 19, 2012, the Senate Committee
on Appropriations reported a similar bill (S. 2323). Both bills include several gun control-related
provisions, such as a ban on additional shotgun importation regulations.
On April 17, 2012, the House passed the Sportsmen’s Heritage Act of 2012 (H.R. 4089), a bill
that would require agencies that manage federal public lands to facilitate access to and use of
those lands for the purposes of recreational fishing, hunting, and shooting with certain exceptions
set out in statute. Language to a similar effect was included in the FY2013 Interior, Environment,
and Related Agencies Appropriations bill (H.R. 6091), which the House Committee on
Appropriations reported on July 10, 2012.
On November 16, 2011, the House passed a bill (H.R. 822) that would establish a greater degree
of reciprocity between states that issue concealed carry permits for handguns to civilians than
currently exists under state law. On October 11, 2011, the House passed a Veterans’ Benefits Act
(H.R. 2349) that would prohibit the Department of Veterans Affairs from determining a
beneficiary to be mentally incompetent for the purposes of gun control, unless such a
determination were made by a judge, magistrate, or other judicial authority based upon a finding
that the beneficiary posed a danger to himself or others. In May 2011, firearms-related
amendments to bills reauthorizing the USA PATRIOT Act were considered (H.R. 1800, S. 1038,
and S. 990), but they were not passed.
The tragic shootings in Tucson, AZ, on January 8, 2011, in which 6 people were killed and 13
wounded, including Representative Gabrielle Giffords, also generated attention. Several Members
introduced proposals that arguably address issues related to the shooter’s mental illness and drug
use (see S. 436/H.R. 1781) and his use of large capacity ammunition feeding devices (LCAFDs)
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(see H.R. 308 and S. 32), as well as a proposal to ban firearms within the proximity of certain
high-level federal officials (see H.R. 367 and H.R. 496).
In addition to legislative action in the 112th Congress, this report also includes discussion of other
salient and recurring gun control issues that have generated past or current congressional interest.
Those issues include (1) screening firearms background check applicants against terrorist watch
lists, (2) combating gun trafficking and straw purchases, (3) reforming the regulation of federally
licensed gun dealers, (4) requiring background checks for private firearms transfers at gun shows,
(5) more-strictly regulating certain firearms previously defined in statute as “semiautomatic
assault weapons,” and (6) banning or requiring the registration of certain long-range .50 caliber
rifles, which are commonly referred to as “sniper” rifles. To set these and other emerging issues in
context, this report provides basic firearms-related statistics, an overview of federal firearms law,
and a summary of legislative action in the 111th and 112th Congresses.
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Contents
Developments in the 112th Congress................................................................................................ 1
Background and Analysis ................................................................................................................ 4
Pro/Con Debate ......................................................................................................................... 4
Gun-Related Statistics ............................................................................................................... 5
How Many Guns Are in the United States?......................................................................... 6
How Often Are Guns Used in Homicides? ......................................................................... 7
How Prevalent Are Gun-Related Fatalities? ....................................................................... 8
How Often Are Guns Used in Non-Lethal Crimes?.......................................................... 10
How Often Are Firearms Used in Self-Defense? .............................................................. 10
What About the Recreational Use of Guns?...................................................................... 11
Federal Regulation of Firearms ..................................................................................................... 11
The National Firearms Act (NFA) ........................................................................................... 12
The Gun Control Act of 1968 (GCA)...................................................................................... 12
Firearms Transfer and Possession Eligibility .................................................................... 12
Noncitizen Firearms Eligibility......................................................................................... 13
Licensed Dealers and Firearms Transfers ......................................................................... 14
Private Firearms Transfers ................................................................................................ 15
Gun Trafficking and Straw Purchases ..................................................................................... 15
ATF Compliance Inspections ............................................................................................ 16
Anatomy of a Firearms Straw Purchase ............................................................................ 17
Federal Prosecutions under 18 U.S.C. §§922(a)(6) and 924(a)(1)(A) .............................. 19
Firearms-Related Amendments to the Sentencing Guidelines .......................................... 21
Brady Handgun Violence Prevention Act................................................................................ 21
Interim Provisions ............................................................................................................. 22
Permanent Provisions........................................................................................................ 22
National Criminal History Improvement Program (NCHIP) ............................................ 26
NICS Act Record Improvement Program (NARIP).......................................................... 28
Background Check Fee and Record Retention.................................................................. 31
Overview of Legislative Action in the 111th Congress .................................................................. 33
Emerging Issues in the 112th Congress .......................................................................................... 35
Concealed Carry and National Reciprocity ............................................................................. 35
Firearms on Public Lands........................................................................................................ 38
Armed Forces Members and Privately Held Firearms Off-Base............................................. 39
ATF Southwest Border Gun Trafficking Investigations .......................................................... 39
Multiple Rifle Sales Report Proposal................................................................................ 41
Operation Fast and Furious ............................................................................................... 45
ATF Firearms Tracing for Mexican Authorities ................................................................ 58
Veterans, Mental Incompetency, and Firearms Eligibility....................................................... 61
ATF FY2012 and FY2013 Appropriations .............................................................................. 62
FY2013 Request................................................................................................................ 63
FY2012 Request and Appropriation.................................................................................. 65
FISA Sunset Extensions and Firearms-Related Amendments ................................................. 67
Tucson Shootings .................................................................................................................... 68
Mental Illness and Drug Use as Prohibiting Factors......................................................... 68
Large Capacity Ammunition Feeding Devices.................................................................. 69
Banning Firearms within the Proximity of Federal Officials............................................ 70
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Other Salient Gun Control Legislative Issues................................................................................ 70
Terrorist Watch List Screening and Brady Background Checks.............................................. 70
Post-9/11 Modified NICS Procedures ............................................................................... 71
NICS Record Retention..................................................................................................... 72
Legislation in the 110th Congress and DOJ Draft Proposal............................................... 73
Legislation in the 111th Congress, GAO Follow-Up Report, and Senate Hearing ............ 74
Firearms-Related Terrorist Watch List Legislation in the 112th Congress......................... 76
Gun Trafficking-Related Proposals in the 112th Congress....................................................... 76
Stop Gun Trafficking and Strengthen Law Enforcement Act of 2011 (H.R. 2554) .......... 76
Gun Trafficking Prevention Act of 2011 (S. 1973) ........................................................... 77
Straw Purchaser Penalty Enhancement Act (H.R. 4190) .................................................. 79
ATF Modernization Act........................................................................................................... 79
Gun Shows and Private Firearms Transfers ............................................................................ 80
Expired Semiautomatic Assault Weapons Ban........................................................................ 81
Long-Range .50 Caliber Rifles................................................................................................ 83
Figures
Figure 1. Federal Defendants Charged and Convicted Nationally under 18 U.S.C.
§§922(a)(6) and 924(a)(1)(A)..................................................................................................... 20
Figure 2. Federal Sentences Imposed Nationally under 18 U.S.C. §§922(a)(6) and
924(a)(1)(A)................................................................................................................................ 21
Figure 3. ATF Appropriations, FY2001-FY2012........................................................................... 62
Figure 4. ATF Appropriations, FY2013 Request ........................................................................... 63
Figure 5. ATF Appropriations: FY2012 Requested and Enacted Compared ................................. 65
Tables
Table 1. Firearms-Related Murder and Non-negligent Manslaughter Victims, 1993-2010............. 7
Table 2. Firearms-Related Deaths for All Ages ............................................................................... 8
Table 3. Firearms-Related Deaths for Juveniles .............................................................................. 9
Table 4. Brady Background Checks for Firearms Transfers and Permits...................................... 25
Table 5. Estimated Brady Background Check Denials .................................................................. 26
Table 6. NCHIP Appropriations, FY1995 though FY2012............................................................ 27
Table 7. NICS Improvement Authorizations and Appropriations under P.L. 110-180 .................. 29
Appendixes
Appendix A. Legislation in the 111th Congress.............................................................................. 84
Appendix B. Major Federal Firearms and Related Statutes......................................................... 100
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Contacts
Author Contact Information......................................................................................................... 102
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Developments in the 112th Congress
Since March 2011, much of the gun control debate in the 112th Congress has swirled around
allegations that the Department of Justice (DOJ) and the Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF) mishandled a Phoenix, AZ-based gun trafficking investigation known as
“Operation Fast and Furious.” In December 2010, two suspect firearms, and possibly a third,
linked to that investigation were found at the murder scene of Border Patrol Agent Brian Terry. In
January 2010, ATF whistleblowers contacted Senator Charles Grassley with assertions that
suspected gun traffickers had not been arrested in a timely fashion and, and as a result, a large
number of suspect firearms had not been interdicted and have reportedly passed into the hands of
drug traffickers and other criminals. The whistleblowers referred to this investigative tactic as
“gun walking.” According to one source, 665 of these firearms have been recovered by law
enforcement at crime scenes on both sides of the border.1 Another 1,355 suspect firearms
reportedly remain unaccounted for.
Senator Grassley, ranking minority Member on the Committee on the Judiciary, and
Representative Darrell Issa, chairman of the Committee on Oversight and Government Reform,
have issued two joint staff reports on Operation Fast and Furious, and the House committee has
held four related hearings, the most recent on February 2, 2012. Representative Elijah Cummings,
the committee’s ranking minority Member, has also issued two reports related to this
controversial operation. On November 1, 2011, a high-ranking DOJ official testified before the
Senate Committee on the Judiciary’s Crime and Terrorism Subcommittee that he had identified
“gun walking” as a potentially risk laden investigative technique in April 2010 but failed to
inform the Attorney General about the potential risks. On November 8, 2011, the Senate
Committee on the Judiciary held a DOJ oversight hearing, and Attorney General Eric Holder
fielded questions about Operation Fast and Furious. The Attorney General conceded that a
February 4, 2011, letter from DOJ to congressional investigators contained “inaccurate”
information regarding the depth of knowledge that departmental officials had of ATF’s use of the
“gun walking” tactic. On December 8, 2011, the House Committee held a hearing to explore,
among other things, whether senior departmental officials knew more about Operation Fast and
Furious than what was previously indicated in a May 3, 2011, hearing before that committee.
On November 18, 2011, the President signed into law the Consolidated and Further Continuing
Appropriations Act, 2012 (H.R. 2112; P.L. 112-55), following House and Senate passage on the
previous day. This act provides ATF with $1.152 billion for FY2012. In response to Operation
Fast and Furious, Congress included in that act a provision (§219) that reflects a Senate-passed
amendment sponsored by Senator John Cornyn to prevent the expenditure of any funding
provided under it to be used by a federal law enforcement officer to facilitate the transfer of an
operable firearm to a person known to be or suspected of being connected to a drug cartel without
that firearm being continuously monitored or controlled. The act, however, does not include an
amendment that was sponsored by Representative Denny Rehberg and adopted in House full
committee markup that would have prevented ATF from collecting multiple long gun sales
reports from federally licensed gun dealers in Southwest Border states. In addition, two ATF
funding provisos and one Federal Bureau of Investigation (FBI) funding proviso were made
permanent with the inclusion of “futurity” language, as opposed to temporary, annual
1 Pete Yost, “Fast and Furious-Like ‘Gun-Walking’ Probe Mentioned In 2007 Bush Administration Memo,” Huffington
Post, November 4, 2011.
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appropriations restrictions.2 These provisos essentially prohibit the consolidation or centralization
of firearm acquisition and disposition records.
In its FY2013 DOJ budget submission, the Administration proposed dropping the Cornyn
language prohibiting “gun walking,” arguing that the prohibition is unnecessary.3 The
Administration also proposed stripping the futurity language out of the ATF and FBI funding
provisions noted above, which were made permanent in the FY2012 appropriations cycle. In
addition, the Administration proposed stripping futurity language out of a long-standing but
controversial provision known as the Tiahrt amendment, which prohibits ATF from releasing
firearms trace data under a range of circumstances. Besides including futurity language, Congress
has altered the language of the Tiahrt amendment several times in recent years to clarify under
which circumstances and at what level of detail it is proper to release firearms trace data to law
enforcement and other governmental officials, as well as to researchers, the media, and the
general public.
Other legislative developments in the 112th Congress include the following:
• On June 28, 2012, the House passed a resolution (H.Res. 711) citing Attorney
General Eric Holder in contempt of Congress for his failure to produce
additional, subpoenaed documents related to Operation Fast and Furious by a roll
call vote of 255-67 (Roll no. 441). The Committee on Oversight and Government
Reform had previously approved a report (H.Rept. 112-546) that accompanied
this resolution by a vote of 23-17. Shortly before the Committee took up the
resolution, President Barack Obama asserted executive privilege, rather than
disclose subpoenaed documents related to ATF’s Operation Fast and Furious. The
House also passed a related resolution (H.Res. 706) that authorizes the committee
to initiate or intervene in judicial proceedings to enforce certain subpoenas.4
• On May 18, 2012, the House passed the National Defense Authorization Act
(NDAA) for Fiscal Year 2013 (H.R. 4310). This bill includes a provision that
would allow Department of Defense (DOD) mental health professionals and
commanding officers to inquire about privately owned firearms that a service
member might hold off-base, if he is considered to be a risk of suicide or a
danger to others. A provision included in the FY2011 NDAA (P.L. 111-383)
prohibits the Secretary of Defense from collecting information on privately
owned firearms held by service members, DOD civilian employees, or their
family members off-base.
2 In general, statutory provisions included in an annual appropriations act are usually only applicable to the covered
fiscal year, unless they include “futurity” language, in which case, those provisions are usually interpreted to be
permanent law. Examples of futurity language include “hereafter,” “after the date of approval of this act,” and
“henceforth.” See U.S. Government Accountability Office, Principles of Federal Appropriations Law: Annual Update
of the Third Edition, GAO-11-210SP, March 2011, pp. 2-5 through 2-6.
3 “Gun walking” is alleged to have occurred when ATF agents did not act in a timely manner to arrest, or at least
confront, suspected “straw purchasers” and interdict the firearms they had purchased in multiple transactions from
federally licensed gun dealers, when the agents arguably had a reasonable suspicion or probable cause to believe that
they, the straw purchasers, were trafficking firearms to known associates of Mexican drug trafficking organizations.
4 For further information, see CRS Report RL34097, Congress’s Contempt Power and the Enforcement of
Congressional Subpoenas: Law, History, Practice, and Procedure, by Todd Garvey and Alissa M. Dolan.
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• On May 10, 2012, the House passed a measure (H.R. 5326) that would fund ATF
for FY2013 at $1.151 billion. This measure includes the Cornyn anti-gun walking
provision, and would make several additional ATF appropriations riders
permanent law by including futurity language in those provisions, instead of
following the Administration’s proposal and stripping futurity language out of the
provisions that were made permanent law in the FY2012 appropriations cycle.
The House-passed bill also includes a provision that would prohibit ATF from
collecting long gun sales reports. This provision reflects a Rehberg amendment
that was successfully offered in full committee markup.
• On May 3, 2012, Representative Darrell Issa, Chairman of the House Oversight
and Government Reform Committee, issued a staff briefing paper to committee
Members that included a draft resolution to cite the Attorney General with
contempt for not fully complying with committee subpoenas for information
about Operation Fast and Furious and other matters.
• On April 19, 2012, the Senate Committee on Appropriations reported a bill (S.
2323) that would fund ATF for FY2013 at $1.153 billion. This bill includes the
Cornyn provision, but it does not include any language similar to the Rehberg
amendment. Like the House bill, it does not address the Administration’s
proposal to strip futurity language out of the provisions that were made
permanent law in the FY2012 appropriations cycle, but it would not make any
additional provisos permanent law.
• On April 17, 2012, the House passed the Sportsmen’s Heritage Act of 2012 (H.R.
4089), a bill that would require agencies that manage federal public lands to
facilitate access to and use of those lands for the purposes of recreational fishing,
hunting, and shooting with certain exceptions set out in statute. Language to a
similar effect was included in the FY2013 Interior, Environment, and Related
Agencies Appropriations bill (H.R. 6091), which the House Committee on
Appropriations reported on July 10, 2012.
• On November 16, 2011, the House passed a bill (H.R. 822) that would establish a
greater degree of reciprocity between states that issue concealed carry permits for
handguns to civilians than currently exists under state law. The Senate considered
a similar amendment, which was narrowly defeated, in the 111th Congress.
• On October 11, 2011, the House passed a Veterans’ Benefits Act (H.R. 2349).
This bill includes a provision that would prohibit the Department of Veterans
Affairs from determining a beneficiary to be mentally incompetent for the
purposes of gun control, unless such a determination were made by a judge,
magistrate, or other judicial authority based upon a finding that the beneficiary
posed a danger to himself or others. Similar proposals were considered in either
the House or the Senate in the 110th and 111th Congresses, in the wake of the
enactment of the NICS Improvement Amendments Act of 2007 (P.L. 110-180).5
• During May 2011, firearms-related amendments were offered to bills to extend
certain USA PATRIOT Act provisions related to national security investigations
(H.R. 1800, S. 1038, and S. 990), but those amendments were not passed. On the
one hand, Representative Mike Quigley’s amendment would have allowed
5 NICS stands for the National Instant Criminal Background Checks System, which is described below.
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firearms transfers to be denied, if prospective transferees were the subject of a
FBI national security investigation. On other hand, Senator Rand Paul’s
amendment would have specifically excluded firearms transfer records from the
business records that can be collected without a warrant during a national
security investigation.
The 112th Congress could also examine issues potentially arising from the tragic shootings in
Tucson, AZ, on January 8, 2011, in which 6 people were killed and 13 wounded, including
Representative Gabrielle Giffords. Armed with a 9mm Glock 19 semiautomatic pistol loaded with
a 33-round extended magazine, the shooter reportedly fired 31 shots before bystanders were able
to subdue him while he was attempting to reload with another 33-round extended magazine. He
also carried two additional 15-round magazines.6 As discussed below, these magazines were
previously defined under federal law as large capacity ammunition feeding devices (LCAFDs)
and were banned for 10 years, from September 13, 1994, through September 13, 2004, as part of
the larger semiautomatic assault weapons ban. Legislation has been introduced to reinstate the
LCAFD ban (H.R. 308 and S. 32) and to ban firearms within the proximity of certain high-level
federal officials (H.R. 367 and H.R. 496). Congressional interest could also focus on the shooter’s
mental illness and illegal drug use.
• On November 15, 2011, the Senate Committee on the Judiciary’s Subcommittee
on Crime and Terrorism held a hearing on the Fix Gun Checks Act of 2011 (S.
436/H.R. 1781). This proposal would amend P.L. 110-180 to advance certain
deadlines and apply deeper cuts to a wider array of federal law enforcement
assistance grant programs to incentivize the greater sharing of firearms-related
disqualifying records. Congress passed P.L. 110-180 in the wake of the tragic
April 16, 2007, Virginia Tech shootings.
Background and Analysis
Pro/Con Debate
Through the years, legislative proposals to restrict the availability of firearms to the public have
raised the following questions: What restrictions on firearms are permissible under the
Constitution? Does gun control constitute crime control? Can the nation’s rates of homicide,
robbery, and assault be reduced by the stricter regulation of firearms commerce or ownership?
Would restrictions stop attacks on public figures or thwart deranged persons and terrorists? Would
household, street corner, and schoolyard disputes be less lethal if firearms were more difficult and
expensive to acquire? Would more restrictive gun control policies have the unintended effect of
impairing citizens’ means of self-defense?
In recent years, proponents of gun control legislation have often held that only federal laws can
be effective in the United States. Otherwise, they say, states with few restrictions will continue to
be sources of guns that flow illegally into more-restrictive states. They believe that the Second
Amendment to the Constitution, which states that “[a] well regulated Militia, being necessary to
the security of a free State, the right of the people to keep and bear Arms shall not be infringed,”
6 David von Drehle, “1 Madman and a Gun: 15 Seconds to Fire the Glock; 31 Bullets in One Clip; 19 Victims, with Six
Killed,” Time, January 24, 2011, p. 26.
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is being misread in today’s modern society. They argue that the Second Amendment (1) is now
obsolete, with the presence of professional police forces; (2) was intended solely to guard against
suppression of state militias by the central government and is therefore restricted in scope by that
intent; and (3) does not guarantee a right that is absolute, but rather one that can be limited by
reasonable requirements. They ask why in today’s modern society a private citizen needs any
firearm that is not designed primarily for hunting or other recognized sporting purposes.
Proponents of firearms restrictions have advocated policy changes on specific types of firearms or
components that they believe are useful primarily for criminal purposes or that pose unusual risks
to the public. Fully automatic firearms (i.e., machine guns) and short-barreled rifles and shotguns
have been subject to strict regulation since 1934. Fully automatic firearms have been banned from
private possession since 1986, except for those legally owned and registered with the Secretary of
the Treasury as of May 19, 1986. More recently, “Saturday night specials” (loosely defined as
inexpensive, small handguns), “assault weapons,” ammunition-feeding devices with capacities for
more than seven rounds, and certain ammunition have been the focus of control efforts.
Opponents of gun control vary in their positions with respect to specific forms of control but
generally hold that gun control laws do not accomplish what is intended. They argue that it is as
difficult to keep weapons from being acquired by “high-risk” individuals, even under federal laws
and enforcement, as it was to stop the sale and use of liquor during Prohibition. In their view, a
more-stringent federal firearms regulatory system would only create problems for law-abiding
citizens, bring mounting frustration and escalation of bans by gun regulators, and possibly
threaten citizens’ civil rights or safety. Some argue that the low violent crime rates of other
countries have nothing to do with gun control, maintaining instead that multiple cultural
differences are responsible.
Gun control opponents also reject the assumption that the only legitimate purpose of ownership
by a private citizen is recreational (i.e., hunting and target-shooting). They insist on the
continuing need of people for effective means to defend themselves and their property, and they
point to studies that they believe show that gun possession lowers the incidence of crime. They
say that the law enforcement and criminal justice system in the United States has not
demonstrated the ability to furnish an adequate measure of public safety in all settings. Some
opponents further believe that the Second Amendment includes a right to keep arms as a defense
against potential government tyranny, pointing to examples in other countries of the use of
firearms restrictions to curb dissent and secure illegitimate government power. The debate has
been intense.
To gun control advocates, the opposition is out of touch with the times, misinterprets the Second
Amendment, and is lacking in concern for the problems of crime and violence. To gun control
opponents, advocates are naive in their faith in the power of regulation to solve social problems,
bent on disarming the American citizen for ideological or social reasons, and moved by irrational
hostility toward firearms and gun enthusiasts.
Gun-Related Statistics
Crime and mortality statistics are often used in the gun control debate. According to a recent
study, however, none of the existing sources of statistics provide either comprehensive, timely, or
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accurate data with which to assess definitively whether there is a causal connection between
firearms and violence.7 For example, existing data do not show whether the number of people
shot and killed with semiautomatic assault weapons declined during the 10-year period (1994-
2004) that those firearms were banned from further proliferation in the United States.8 Presented
below are data on the following topics: (1) the number of guns in the United States, (2) firearms-
related homicides, (3) non-lethal firearms-related victimizations, (4) gun-related mortality rates,
(5) use of firearms for personal defense, and (6) recreational use of firearms. In some cases, the
data presented are more than a decade old but remain the most recent available.
How Many Guns Are in the United States?
The National Institute of Justice (NIJ) reported in a national survey that in 1994, 44 million
people, approximately 35% of households, owned 192 million firearms, 65 million of which were
handguns.9 Seventy-four percent of those individuals were reported to own more than one
firearm.10 According to the ATF, by the end of 1996 approximately 242 million firearms were
available for sale to or were possessed by civilians in the United States.11 That total includes
roughly 72 million handguns (mostly pistols, revolvers, and derringers), 76 million rifles, and 64
million shotguns.12 By 2000, the number of firearms had increased to approximately 259 million:
92 million handguns, 92 million rifles, and 75 million shotguns.13 By 2007, the number of
firearms had increased to approximately 294 million: 106 million handguns, 105 million rifles,
and 83 million shotguns.14
In the past, most guns available for sale were produced domestically. In recent years, 1 million to
2 million handguns were manufactured each year, along with 1 million to 1.5 million rifles and
fewer than 1 million shotguns.15 From 2001 through 2007, however, handgun imports nearly
doubled, from 711,000 to nearly 1.4 million.16 By 2009, nearly 2.2 million handguns were
imported into the United States.17 From 2001 through 2007, rifle imports increased from 228,000
to 632,000, and shotgun imports increased from 428,000 to 726,000.18 By 2009, rifle imports had
7 National Research Council, Firearms and Violence: A Critical Review (Washington, DC: 2005), p. 48.
8 Ibid., p. 49.
9 Jens Ludwig and Phillip J. Cook, Guns in America: National Survey on Private Ownership and Use of Firearms, NCJ
165476, May 1999, http://www.ncjrs.org/pdffiles/165476.pdf.
10 Ibid.
11 U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Commerce in Firearms in the United
States, February 2000, pp. A3-A5.
12 Ibid., pp. A3-A5.
13 U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Firearms Commerce in the United
States 2001/2002, ATF P 9000.4, April 2002, pp. E1-E3.
14 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Annual Firearm
Manufacturing and Export Reports for 2002 through 2007, along with firearms import data provided by the ATF
Firearms and Explosives Import Branch.
15 Ibid.
16 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms and Explosives Import
Branch.
17 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms Commerce in the
United States 2011, August 2011, p. 15.
18 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms and Explosives Import
Branch.
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increased to 864,000, but shotguns had decreased 559,000.19 By the same year, 2009, the
estimated total number of firearms available to civilians in the United States had increased to
approximately 310 million: 114 million handguns, 110 million rifles, and 86 million shotguns.20
Retail prices of guns vary widely, from $75 or less for inexpensive, low-caliber handguns to more
than $1,500 for higher-end, standard-production rifles and shotguns.21 Data are not available on
the number of “assault weapons” in private possession or available for sale, but one study
estimated that 1.5 million assault weapons were privately owned in 1994.22
How Often Are Guns Used in Homicides?
As Table 1 shows, reports submitted by state and local law enforcement agencies to the FBI and
published annually in the Uniform Crime Reports23 indicate that the firearms-related murder and
non-negligent manslaughter rate per 100,000 of the population decreased from 6.6 for 1993 to 3.6
for 2000. The rate held steady at 3.6 for 2001 and fluctuated thereafter between a high of 3.9 for
2006 and 2007, and a low of 3.2 for 2010.
Table 1. Firearms-Related Murder and Non-negligent Manslaughter Victims,
1993-2010
Estimated Firearms-
Related Murder and Non-
Rate per 100,000
negligent Manslaughter
Rate per 100,000
Year Murder
Victims
of the Population
Victimsa
of the Population
1993 24,526
9.5
17,073
6.6
1994 23,326
9.0
16,333
6.3
1995 21,606
8.2
14,727
5.6
1996 19,645
7.4
13,261
5.0
1997 18,208
6.8
12,335
4.6
1998 16,974
6.3
11,006
4.1
1999 15,522
5.7
10,117
3.7
2000 15,586
5.5
10,203
3.6
2001 16,037
5.6
10,139
3.6
2002 16,229
5.6
10,841
3.8
2003 16,528
5.7
11,037
3.8
2004 16,148
5.5
10,665
3.6
19 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms Commerce in the
United States 2011, August 2011, p. 15
20 Ibid., pp. 11, 13, and 15.
21 Ned Schwing, 2005 Standard Catalog of Firearms: The Collector’s Price and Reference Guide, 15th edition (Iola,
Wisconsin, 2005).
22 Christopher S. Koper, Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun
Violence, 1994-2003 (Washington, DC: July 2004).
23 See http://www.fbi.gov/ucr/ucr.htm.
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Estimated Firearms-
Related Murder and Non-
Rate per 100,000
negligent Manslaughter
Rate per 100,000
Year Murder
Victims
of the Population
Victimsa
of the Population
2005 16,740
5.6
11,363
3.8
2006 17,309
5.8
11,731
3.9
2007 17,128
5.7
11,631
3.9
2008 16,645
5.4
11,029
3.6
2009 15,399
5.0
10,301
3.4
2010 14,748
4.8
9,958
3.2
Source: CRS compilation of FBI crime statistics reported annually in the Uniform Crime Reports, 1993-2010.
a. The number of firearms-related murder and non-negligent manslaughter victims was estimated by applying
the percentage of firearms-related murders for which the cause of death was known to the number of all
reported murder and non-negligent homicide victims for which the cause was known or unknown.
How Prevalent Are Gun-Related Fatalities?
The source of national data on firearms deaths is the publication Vital Statistics, published each
year by the National Center for Health Statistics. Firearms deaths reported by coroners are
presented in five categories: homicides, legal interventions,24 suicides, accidents, and unknown
circumstances. For these categories, the data are presented below for 1993 through 2007 in two
tables, one for all deaths and the other for juvenile deaths.
Table 2. Firearms-Related Deaths for All Ages
1993-2009
Legal
Total
%
Yeara Homicides
Interventions Suicides Accidents Unknown
Deaths
Change
1993 18,253
318 18,940 1,521 563 39,596
1994 17,527
339 18,765 1,356 518 38,506 -2.8%
1995 15,551
284 18,503 1,225 394 35,958 -6.6%
1996 14,037
290 18,166 1,134 413 34,041 -5.3%
1997 13,252
270 17,566 981 367 32,437 -4.7%
1998 11,798
304 17,424 866 316 30,709 -5.3%
1999 10,828
299 16,599 824 324 28,875 -6.0%
2000 10,801
270 16,586 776 230 28,664 -0.7%
2001 11,348
323 16,869 802 231 29,574 3.2%
2002 11,829
300 17,108 762 243 30,243 2.3%
2003 11,920
347 16,907 730 232 30,137 -0.4%
2004 11,624
311 16,750 649 235 29,570 -1.9%
24 “Legal interventions” include deaths (in these cases by firearms) that involve legal uses of force (justifiable homicide
or manslaughter), usually by the police.
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Legal
Total
%
Yeara Homicides
Interventions Suicides Accidents Unknown
Deaths
Change
2005 12,352
330 17,002 789 221 30,695 3.8%
2006 12,791
360 16,883 642 220 30,897 0.7%
2007 12,632
351 17,352 613 276 31,224 1.1%
2008 12,179
326 18,223 592 273 31,593 1.1%
2009 11,493
333 18,735 554 232 31,347 -0.7
Source: National Center for Health Statistics.
a. As of February 28, 2012, the last year for which data were available was calendar year 2009.
As Table 2 shows, firearms fatalities decreased continuously from 39,595 in 1993 to 28,664 in
2000, for an overall decrease of nearly 28%. Compared with firearms deaths in 2000, such deaths
increased by 3.2% in 2001 to 29,574, and increased again, by 2.3%, in 2002 to 30,243. They
decreased by 0.3% in 2003 to 30,137, and decreased again, by 1.9%, in 2004 to 29,570. Firearms
fatalities increased by 3.8% in 2005 to 30,694, by 0.7% in 2006 to 30,897, and by 1.1% in 2007
to 31,224. They increased again by 1.1% in 2008, but decreased by 0.7% in 2009. Of the 2009
total, 11,826 were homicides or due to legal intervention, 18,735 were suicides, 554 were
unintentional (accidental) shootings, and 232 were of unknown causes.25
As Table 3 shows, there were 1,520 juvenile (younger than 18 years old) firearms-related deaths
in 2007. Of the juvenile total, 1,047 were homicides or due to legal intervention, 325 were
suicides, 112 were unintentional, and 36 were of unknown causes. From 1993 to 2001, juvenile
firearms-related deaths decreased by an average rate of 10% annually, for an overall decrease of
56%. From 2001 to 2002, such deaths increased slightly (by less than 1%), but declined by nearly
9% from 2002 to 2003. They increased from 2002 through 2006, by 5% to 7%, but decreased by
nearly 5% in 2007.26 Juvenile firearms-related fatalities decreased again by 3.0% in FY2008 and
nearly 6% in 2009.
Table 3. Firearms-Related Deaths for Juveniles
1993-2009
Legal
Total
%
Yeara Homicides Interventions Suicides Accidents Unknown
Deaths
Change
1993 1,975
16
832 392
76
3,292
1994
1,912
20 902 403 81 3,319 0.8%
1995 1,780
16
836 330
72
3,035 -8.6%
1996 1,473
9
720 272
49
2,524 -16.8%
1997 1,308
7
679 247
43
2,285 -9.5%
1998 1,045
17
648 207
54
1,972 -13.7%
1999 1,001
9
558 158
50
1,777 -9.9%
25 National Vital Statistics System data taken from the Injury Statistics Query and Reporting System (WISQARS),
http://www.cdc.gov/ncipc/wisqars/default.htm.
26 Ibid.
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Legal
Total
%
Yeara Homicides Interventions Suicides Accidents Unknown
Deaths
Change
2000 819
15 537 150 23 1,545
-13.1%
2001 835
6 451 125 16 1,434 -7.2%
2002 872
7 423 115 26 1,444 0.7%
2003 805
8 377 102 25 1,318 -8.7%
2004 868
6 384 105 22 1,386 5.2%
2005 921
5 412 127 25 1,491 7.6%
2006
1,082
14 371 102 24 1,594 6.9%
2007 1,038
9
325 112
36
1,520 -4.6%
2008 984
6 361 98 26 1,475 -3.0%
2009 887
5 401 83 16 1,392 -5.6%
Source: National Center for Health Statistics.
a. As of February 28, 2012, the last year for which data were available was calendar year 2009.
How Often Are Guns Used in Non-Lethal Crimes?
The other principal source of national crime data is the National Crime Victimization Survey
(NCVS) conducted by the U.S. Census Bureau and published by the Bureau of Justice Statistics
(BJS). The NCVS database provides some information on the weapons used by offenders, based
on victims’ reports. Based on data provided by survey respondents in calendar year 2009, BJS
estimated that, nationwide, there were 4.3 million non-lethal violent crimes (rape or sexual
assault, robbery, aggravated assault, and simple assault).27 Weapons were used in 22% of these
incidents, and firearms were used by offenders in 8% of these incidents.28 The estimated number
of firearms-related non-lethal violent crime incidents decreased from 428,670 in 2000 to 326,090
in 2009, and from 2.4 persons to 1.4 per 100,000 of the population ages 12 and older.29
How Often Are Firearms Used in Self-Defense?
According to BJS, NCVS data from 1987 to 1992 indicate that in each of those years, roughly
62,200 victims of violent crime (1% of all victims of such crimes) used guns to defend
themselves.30 Another 20,000 persons each year used guns to protect property. Persons in the
business of self-protection (police officers, armed security guards) may have been included in the
survey.31 Another source of information on the use of firearms for self-defense is the National
Self-Defense Survey conducted by criminology professor Gary Kleck of Florida State University
27 U.S. Department of Justice, Bureau of Justice Statistics, National Crime Victimization Survey, Criminal
Victimization, 2009, by Jennifer L. Truman and Michael R. Rand, p. 8.
28 Ibid.
29 Ibid.
30 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Guns and Crime: Handgun
Victimization, Firearm Self-Defense, and Firearm Theft, NCJ-147003, April 1994, http://bjs.ojp.usdoj.gov/content/pub/
ascii/hvfsdaft.txt.
31 Ibid.
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in the spring of 1993. Citing responses from 4,978 households, Dr. Kleck estimated that handguns
had been used 2.1 million times per year for self-defense, and that all types of guns had been used
approximately 2.5 million times a year for that purpose during the 1988-1993 period.32
Why do these numbers vary by such a wide margin? Law enforcement agencies do not collect
information on the number of times civilians use firearms to defend themselves or their property
against attack. Such data have been collected in household surveys. The contradictory nature of
the available statistics may be partially explained by methodological factors. That is, these and
other criminal justice statistics reflect what is reported to have occurred, not necessarily the actual
number of times certain events occur. Victims and offenders are sometimes reluctant to be candid
with researchers. So, the number of incidents can only be estimated, making it difficult to state
with certainty the accuracy of statistics such as the number of times firearms are used in self-
defense. For this and other reasons, criminal justice statistics often vary when different
methodologies are applied.
Survey research can be limited because it is difficult to produce statistically significant findings
from small incident populations. For example, the sample in the National Self-Defense Survey
might have been too small, given the likely low incidence rate and the inherent limitations of
survey research.
What About the Recreational Use of Guns?
According to NIJ, in 1994 recreation was the most common motivation for owning a firearm.33
There were approximately 15 million hunters, about 35% of gun owners, in the United States, and
about the same number and percentage of gun owners engaged in sport shooting in 1994.34 The
U.S. Fish and Wildlife Service (FWS) reported that there were more than 14.7 million persons
who were paid license holders in 200335 and, according to the National Shooting Sports
Foundation, in that year approximately 15.2 million persons hunted with a firearm and nearly
19.8 million participated in target shooting.36 The FWS reported that there were 14.4 million paid
license holders in 2010.37
Federal Regulation of Firearms
Two major federal statutes regulate the commerce in and possession of firearms: the National
Firearms Act of 1934 (26 U.S.C. §5801 et seq.) and the Gun Control Act of 1968, as amended (18
U.S.C. Chapter 44, §921 et seq.). Supplementing federal law, many state firearms laws are stricter
than federal law. For example, some states require permits to obtain firearms and impose a
32 Gary Kleck, “Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun,” Journal of
Criminal Law and Criminology, vol. 86, issue 1, 1995, http://www.guncite.com/gcdgklec.html.
33 Jens Ludwig and Phillip J. Cook, Guns in America: National Survey on Private Ownership and Use of Firearms,
NCJ 165476, May 1999, p. 2.
34 Ibid., p. 3.
35 U.S. Department of the Interior, U.S. Fish and Wildlife Service, National Hunting License Report (December 2,
2004).
36 American Sports Data, Inc., The SUPERSTUDY of Sports Participation.
37 U.S. Department of the Interior, U.S. Fish and Wildlife Service, National Hunting License Report (December 10,
2010).
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waiting period for firearms transfers. Other states are less restrictive, but state law cannot preempt
federal law. Federal law serves as the minimum standard in the United States.
The National Firearms Act (NFA)
The NFA was originally designed to make it difficult to obtain types of firearms perceived to be
especially lethal or to be the chosen weapons of “gangsters,” most notably machine guns and
short-barreled long guns. This law also regulates firearms, other than pistols and revolvers, which
can be concealed on a person (e.g., pen, cane, and belt buckle guns). It taxes all aspects of the
manufacture and distribution of such weapons, and it compels the disclosure (through registration
with the Attorney General) of the production and distribution system from manufacturer to buyer.
The Gun Control Act of 1968 (GCA)
As stated in the GCA, the purpose of federal firearms regulation is to assist federal, state, and
local law enforcement in the ongoing effort to reduce crime and violence. In the same act,
however, Congress also stated that the intent of the law is not to place any undue or unnecessary
burdens on law-abiding citizens in regard to the lawful acquisition, possession, or use of firearms
for hunting, trapshooting, target shooting, personal protection, or any other lawful activity.
The GCA, as amended, contains the principal federal restrictions on domestic commerce in small
arms and ammunition. The statute requires all persons manufacturing, importing, or selling
firearms as a business to be federally licensed; prohibits the interstate mail-order sale of all
firearms; prohibits interstate sale of handguns generally and sets forth categories of persons to
whom firearms or ammunition may not be sold, such as persons under a specified age or with
criminal records; authorizes the Attorney General to prohibit the importation of non-sporting
firearms; requires that dealers maintain records of all commercial gun sales; and establishes
special penalties for the use of a firearm in the perpetration of a federal drug trafficking offense or
crime of violence.
As amended by the Brady Handgun Violence Prevention Act, 1993 (P.L. 103-159), the GCA
requires background checks be completed for all non-licensed persons seeking to obtain firearms
from federal firearms licensees. Private transactions between persons “not engaged in the
business” are not covered by the recordkeeping or the background check provisions of the GCA.
These transactions and other matters such as possession, registration, and the issuance of licenses
to firearms owners may be covered by state laws or local ordinances. For a listing of other major
firearms and related statutes, see Appendix B.
Firearms Transfer and Possession Eligibility
Under current law, there are nine classes of persons prohibited from shipping, transporting,
receiving, or possessing firearms:
• persons convicted in any court of a crime punishable by imprisonment for a term
exceeding one year;
• fugitives from justice;
• unlawful users or addicts of any controlled substance as defined in Section 102 of
the Controlled Substances Act (21 U.S.C. §802));
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• persons adjudicated as “mental defective” or committed to mental institutions;
• unauthorized immigrants and most nonimmigrant visitors (with some exceptions
in the latter case);
• persons dishonorably discharged from the U.S. Armed Forces;
• persons who have renounced their U.S. citizenship;
• persons under court-order restraints related to harassing, stalking, or threatening
an intimate partner or child of such intimate partner; and
• persons convicted of a misdemeanor crime of domestic violence.38
In addition, there is a 10th class of persons prohibited from shipping, transporting, or receiving
firearms:
• persons under indictment in any court of a crime punishable by imprisonment for
a term exceeding one year.39
Since 1994, moreover, it has been a federal offense for any non-licensed person to transfer a
handgun to anyone younger than 18 years old. It has also been illegal for anyone younger than 18
years old to possess a handgun (there are exceptions to this law related to employment, ranching,
farming, target practice, and hunting) (18 U.S.C. §922(x)).
Noncitizen Firearms Eligibility
Regarding immigration status, the GCA does not distinguish between citizens and legal
permanent residents (legal immigrants); both are eligible to receive, possess, and transfer firearms
and ammunition as long as they are not in one of the categories of prohibited persons. As shown
above, among prohibited categories are illegal immigrants and nonimmigrants (with exceptions
for the latter). Illegal immigrants are those noncitizens (aliens) who have either entered the
United States without inspection or have violated the terms of their nonimmigrant visas or entry
by overstaying or accepting unauthorized employment. Illegal immigrants are prohibited from
possessing firearms with no exceptions.
Nonimmigrant aliens are admitted for temporary stays—sometimes for several years. In general,
nonimmigrants are not eligible to purchase and take possession of firearms or ammunition in the
United States.40 There are limited exceptions, however, for certain nonimmigrants who
• have resided in a state for 90 days that they intend to make their home, in which
case they may purchase handguns in their state of residence, or purchase long
guns (rifles or shotguns) in any state;
and establish that they are either
• official representatives of a foreign government who are accredited to the United
States government or the nonimmigrant’s government mission to an international
38 18 U.S.C. §922(g).
39 18 U.S.C. §922(n).
40 18 U.S.C. §922(y).
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organization that is headquartered in the United States and possession of a
firearm is necessary to their official capacity;
• officials of foreign governments or distinguished visitors who have been
designated by the State Department and possession of a firearm is necessary to
their official capacity;
• foreign law enforcement officers of a friendly foreign government entering the
United States on law enforcement business; or
• visitors admitted to the United States for lawful hunting or sporting purposes or
are in possession of a valid hunting license or permit lawfully issued in the
United States.41
In two separate memoranda, dated October 28, 2011,42 and January 30, 2012,43 DOJ Office of
Legal Counsel (OLC) Assistant Attorney General Virginia A. Seitz provided ATF Chief Counsel
Stephen R. Rubenstein with formal opinions regarding nonimmigrant aliens and firearms
ineligibility in most cases and the separate, but related 90-day state residency requirement for
other noncitizens, who are lawfully present in the United States.44 In these opinions, which are
binding on ATF, the OLC has found these two long-standing ATF administrative interpretations to
be in error. While ATF is compelled to amend its regulations to conform to the OLC opinions,
such regulations have yet to be published as of the date of this memorandum. Consequently,
ATF’s administrative interpretations still carry the force of law, notwithstanding the OLC’s
opinions discussed above.
Licensed Dealers and Firearms Transfers
Persons who are federally licensed to be engaged in the business of manufacturing, importing, or
selling firearms are known as “federal firearms licensees (FFLs).” Under current law, FFLs may
ship, transport, and receive firearms that have moved in interstate and foreign commerce. FFLs
are currently required to verify with the FBI through a background check that non-licensed
persons are eligible to possess a firearm before subsequently transferring a firearm to them. FFLs
must also verify the identity of non-licensed transferees by inspecting a government-issued
identity document (e.g., a driver’s license).
41 For further information, see ATF brochure, “Nonimmigrant Aliens Purchasing Firearms and Ammunition in the
United States (ATF P 5300.18)” (Washington, July 2002).
42 U.S. Department of Justice, Office of Legal Counsel, Nonimmigrant Aliens and Firearms Disabilities Under the Gun
Control Act: Memorandum Opinion for the Chief Counsel, Bureau of Alcohol, Tobacco, Firearms and Explosives
(October 28, 2011), p. 1.
43 U.S. Department of Justice, Office of Legal Counsel, State of Residence Requirements for Firearms Transfers:
Memorandum Opinion for the Chief Counsel, Bureau of Alcohol, Tobacco, Firearms and Explosives (January 30,
2012), p. 1.
44 The OLC provides oral advice and written opinions in response to requests from executive branch agencies, as well
as the Counsel to the President. Formal opinions are prepared for and signed by the Attorney General. More frequently,
written legal opinions (formal advice) are prepared and signed by the OLC Assistant Attorney General or Deputy
Assistant Attorney General. The OLC also serves as the general counsel for DOJ and, in this role, reviews all
regulations promulgated under the Attorney General’s signature. The OLC only provides legal advice to the Executive
Branch and, within that branch, OLC opinions “are controlling on questions of the law.” See Memorandum for
Attorneys of the Office, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Best Practices for OLC Opinions (May 16, 2005), p. 1.
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FFLs may engage in interstate transfers of firearms among themselves without conducting
background checks. Licensees may transfer long guns (rifles and shotguns) to out-of-state
residents, as long as the transactions are face-to-face and not knowingly in violation of the laws
of the state in which the unlicensed transferees reside. FFLs, however, may not transfer handguns
to unlicensed out-of-state residents. Transfer of handguns by FFLs to anyone younger than 21
years old is also prohibited, as is the transfer of long guns to anyone younger than 18 years old
(18 U.S.C. §922(b)). Also, FFLs are required to submit “multiple sales reports” to the Attorney
General if any person purchases two or more handguns within five business days. Furthermore,
FFLs are required to maintain records on all acquisitions and dispositions of firearms. They are
obligated to respond to ATF agents requesting firearms tracing information within 24 hours.
Under certain circumstances, ATF agents may inspect, without search warrants, their business
premises, inventory, and gun records.
Private Firearms Transfers
Non-licensees are prohibited from acquiring firearms from out-of-state sources (except for long
guns acquired from FFLs under the conditions described above). Non-licensees are also
prohibited from transferring firearms to any persons who they have reasonable cause to believe
are not residents of the state in which the transaction occurs. In addition, since 1986 it has been a
federal offense for non-licensees to knowingly transfer a firearm to prohibited persons. It is also
notable that firearms transfers initiated through the Internet are subject to the same federal laws as
transfers initiated in any other manner.45
Gun Trafficking and Straw Purchases
ATF has developed a nationwide strategy to reduce firearms trafficking and violent crime by
preventing convicted felons, drug traffickers, and juvenile gang members from acquiring firearms
from gun traffickers.46 These criminals often acquire firearms from a person who is not prohibited
to possess firearms through straw purchases or by buying firearms from corrupt dealers who sell
firearms off the books in an attempt to escape federal regulation.
Although there is no statutory definition for “gun trafficking” in the GCA, it essentially entails
the movement or diversion of firearms from legal to illegal markets.47 Therefore, it follows that
the entire GCA is arguably a statutory framework designed to combat gun trafficking
45 For further information, see CRS Report RS20957, Internet Firearm Sales, by T. J. Halstead.
46 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Office of Field Operations,
Project Gunrunner: A Cartel Focused Strategy, September 2010, 28 pp.
47 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Project Gunrunner: The
Southwest Border Initiative, ATF P 3317.6, March 2009, available at http://www.atf.gov/pub/fire-explo_pub/
p3317_6rev2.pdf.
It is noteworthy that in 2006 the U.S. Sentencing Commission amended its guidelines to include the following
definition: “firearms trafficking” occurred if an offender, “regardless of whether anything of value was exchanged,”
engaged in the following activities: (1) transported, transferred, or otherwise disposed of two or more firearms to
another individual, or received two or more firearms with the intent to transport, transfer, or otherwise dispose of
firearms to another individual; and (2) knew or had reason to believe that such conduct would result in the transport,
transfer, or disposal of a firearm to an individual (a) whose possession or receipt of the firearm would be unlawful; or
(b) who intended to use or dispose of the firearm unlawfully. See United States Sentencing Commission, Guidelines
Manual, §2K2.1(b)(5) (November 2006).
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domestically, particularly interstate gun trafficking.48 For example, according to ATF, gun
trafficking cases include, but are not limited to, the following activities:
• Straw purchasers or straw purchasing rings;
• Trafficking in firearms by corrupt federally licensed gun dealers;
• Trafficking in firearms by unlicensed dealers (i.e., persons who deal in firearms
illegally as the principal source of their livelihood);
• Trafficking in secondhand firearms acquired from unlicensed persons at gun
shows, flea markets, and other private venues; and
• Trafficking in stolen firearms.49
Unlike other forms of contraband, almost all illegal firearms used criminally in the United States
were diverted at some point from legal channels of commerce.50 ATF works to reduce firearms-
related crime with two approaches, industry regulation and criminal investigation.
ATF Compliance Inspections
ATF regulates the U.S. firearms industry by inspecting FFLs to monitor their compliance with the
GCA and NFA, and to prevent the diversion of firearms from legal to illegal channels of
commerce. Despite its crime-fighting mission, ATF’s business relationships with the firearms
industry and larger gun-owning community have been a perennial source of tension, which from
time to time has been the subject of congressional oversight.51 Nevertheless, under current law,
ATF Special Agents (SAs)52 and Industry Operations Investigators (IOIs)53 are authorized to
inspect or examine the inventory and records of an FFL without search warrants under three
scenarios:54
48 With regard to Southwest Border gun trafficking, it is significant to note that the GCA does not include any
provisions that directly address smuggling firearms out of the United States, across international boundaries, to
countries like Mexico. However, the Arms Export Control Act (AECA; 22 U.S.C. §2778 et seq.) does include
provisions that directly address such cross-border illegal arms trafficking.
49 U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Following the Gun: Enforcing Federal
Laws against Firearms Traffickers, June 2000, p. 11.
50 Greg Ridgeway, Glenn L. Pierce, and Anthony A. Braga et al., Strategies for Disrupting Illegal Firearms Markets: A
Case Study of Los Angeles, RAND Corporation, 2008, p. 1.
51 For example, in the 109th Congress, the House Judiciary Crime subcommittee held two oversight hearings examining
ATF firearms enforcement operations at guns shows in Richmond, VA, in 2005. ATF agents reportedly provided state
and local law enforcement officers with confidential information from background check forms (ATF Form 4473s), so
that officers could perform residency checks on persons who had otherwise legally purchased firearms at those gun
shows. Questions were also raised as to whether ATF agents had profiled gun purchasers at those gun shows on the
basis of race, ethnicity, and gender. See U.S. Congress, House of Representatives, Committee on the Judiciary,
Subcommittee on Crime, Terrorism, and Homeland Security, Oversight Hearing on the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (BATFE) Parts I & II: Gun Show Enforcement, February 15 and 28, 2006. Also see
Department of Justice, Office of the Inspector General, The Bureau of Alcohol, Tobacco, Firearms and Explosives’
Investigative Operations at Gun Shows, I-2007-007, June 2007.
52 For FY2012, Congress has provided ATF with funding for 2,539 SA positions.
53 For FY2009, Congress has provided ATF with funding for 834 IOI positions.
54 18 U.S.C. §923(g)(1)(B).
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• in the course of a reasonable inquiry during the course of a criminal investigation
of a person or persons other than the FFL;
• to ensure compliance with the record keeping requirements of the GCA—not
more than once during any twelve-month period, or at any time with respect to
records relating to a firearm involved in a criminal investigation that is traced to
the licensee; or
• when such an inspection or examination is required for determining the
disposition of one or more firearms in the course of a criminal investigation.
By inspecting the firearms transfer records that FFLs are required by law to maintain, ATF SAs
and IOIs are able to trace crime guns from their domestic manufacturer or importer to the first
retail dealer that sold those firearms to persons in the general public, generating vital leads in
homicide and other criminal investigations. In addition, by inspecting those records, ATF
investigators sometimes discover evidence of corrupt FFLs dealing in firearms “off the books,”
straw purchases, and other patterns of illegal behavior.
Anatomy of a Firearms Straw Purchase
A “straw purchase” occurs when an individual poses as the actual transferee, but he is actually
acquiring the firearm for another person. In effect, he serves as an illegal middleman. As part of
any firearms transfer from an FFL to a private person, the GCA requires them to fill out jointly an
ATF Form 4473. In addition, the FFL is required to verify the purchaser’s name, address, date of
birth, and other information by examining a government-issued piece of identification, most often
a driver’s license. Among other things, the purchaser attests on the ATF Form 4473 that he is not
a prohibited person, and that he is the “actual transferee/buyer.”55 Hence, straw purchases are
known as “lying and buying for the other guy.” Straw purchases are illegal under two provisions
of the GCA.
If the purchaser makes any false statement to a FFL with respect to any fact material to the
lawfulness of a prospective firearms transfer, it is a federal offense punishable under 18
U.S.C. 922(a)(6). This provision, however, also captures misrepresentations such as
presenting false identity documents. Violations are punishable by up to 10 years
imprisonment.56
It is also illegal for any person knowingly to make any false statement with respect to the
records that FFLs are required to maintain under 18 U.S.C. §924(a)(1)(A). This provision,
however, also captures misrepresentations related to licensure and other benefits under the
GCA. Violations are punishable by up to five years imprisonment.57
Straw purchases, however, are not easily detected, because their illegality only becomes apparent
when the straw purchaser’s true intent is revealed by a subsequent transfer to the actual buyer. In
many cases, the actual buyer may be a prohibited person, who would not pass a background
check. Under such a scenario, if the straw purchaser knew or had reasonable cause to know the
55 On the ATF Form 4473, question 11a reads: “Are you the actual transferee/buyer of the firearm(s) listed on this
form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are
not the actual buyer, the dealer cannot transfer the firearm(s) to you.”
56 18 U.S.C. §924(a)(2).
57 18 U.S.C. §924(a)(1)(D).
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actual transferee was a prohibited person, he would also be in violation of 18 U.S.C. §922(d), for
which the penalty is up to 10 years imprisonment.58 It would also be a violation for the prohibited
person to possess or receive the firearm under 18 U.S.C. §922(g), for which the penalty is also up
to 10 years imprisonment.59
Alternatively, the actual buyer may not be a prohibited person, but may be seeking to acquire
firearms without any paper trail linking him to the acquisition of the firearm. Under such a
scenario, however, the straw purchase and subsequent illegal transfer would be even less apparent
for several reasons. Under federal law, it is legal for an unlicensed, private person to purchase
firearms and then resell them or given them away, as long as the
• transferees are not prohibited or underage persons;
• transferors do not deal in firearms in a volume that would require licensing; and
• transfers are intrastate, as generally only federally licensed gun dealers can
legally transfer firearms interstate.
Hence, individuals may buy several firearms at a time with the intention of giving those firearms
away as presents to anyone, as long as they do not present those firearms to persons who are
underage, out-of-state residents, or prohibited persons. They may also buy firearms and, then, sell
those firearms at any time, as long as selling firearms is not the principal objective of their
livelihood and profit, in which case they would be required to be federally licensed to deal in
firearms. Furthermore, no federal background checks are required for recipients of subsequent
intrastate firearms transfers.
On the other hand, if the suspected straw purchaser were observed departing the licensed gun
dealer’s place of business and traveling immediately to another locale, where he transferred the
firearm(s) to another person, there would be a reasonable suspicion that he was a straw purchaser.
However, the actual buyer would not have committed a crime unless it could be proven that he
had sponsored the straw purchase.60 Moreover, depending on the time that elapses between the
initial straw purchases and subsequent transfers to the actual buyer, the illegality of the transfers
may not become apparent until the actual buyer’s true intent is revealed, when he either transports
those firearms across state lines to be sold or bartered, attempts to smuggle them across an
international border, or engages in some other illegal act.
Sometimes, the behavior of the prospective transferee (straw purchaser) may raise reasonable
suspicions. For example, during a controversial ATF Phoenix-based investigation known as
“Operation Fast and Furious,” several of the individuals under indictment made multiple
purchases from the same FFL of multiple semiautomatic firearms. Raising suspicions further,
they paid for these firearms with thousands of dollars in cash. Indeed, FFLs contacted ATF about
these suspicious transfers, prompting the investigation. They did so, in part, because they realized
that these firearms might be traced back to their businesses and they probably wanted to avoid
any negative attention that those traces might bring back on them. It is notable that if an FFL
believes a firearms transfer to be suspicious, he may choose not to sell those firearms to the
individuals in question. If he should proceed with the transfer, however, as long as he had
58 18 U.S.C. §924(a)(2).
59 Ibid.
60 It is unlawful for any person to aid, abet, counsel, command, or solicit a criminal act (18 U.S.C. §2).
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conducted the required criminal background check on the prospective buyer, and he and the
prospective buyer had filled out the proper paperwork, his obligations under federal law would
have been fulfilled.
In summation, with regard to interstate transfers, it is unlawful for any person who is not federally
licensed to deal in firearms to transport or receive a firearm into his own state of residence that
was obtained in another state.61 In addition, it is unlawful for any person who is not federally
licensed to deal in firearms to deliver a firearm to another unlicensed person who resides in a
state other than the transferor’s state of residence.62 Violations of either provision are punishable
by a fine and/or not more than five years imprisonment.63 It is also unlawful to smuggle firearms,
or any other merchandise contrary to U.S. law from the United States.64 Violations are punishable
by a fine and/or not more than 10 years imprisonment.65
Federal Prosecutions under 18 U.S.C. §§922(a)(6) and 924(a)(1)(A)
According to the Government Accountability Office (GAO), the largest percentage of Southwest
Border gun trafficking cases is comprised of multiple straw purchases.66 And, large-scale straw
purchasing schemes were at the center of several ATF Phoenix-based gun trafficking
investigations, including Operation Fast and Furious. Contributing to the controversy surrounding
Fast and Furious, reportedly, the U.S. Attorney’s Office in Arizona was reluctant to prosecute
straw purchasing cases, even though ATF conducted several investigations involving dozens of
firearms and multiple defendants from 2006 through 2010.67 Some of this reluctance to prosecute
referred cases may have stemmed from legal interpretations (and underlying case law) made by
the U.S. Attorney’s Office in Arizona that “differed substantially from those of other U.S.
Attorney’s Offices.68 Other considerations could have included allocation of scarce resources and
prosecutorial priorities. Nonetheless, as shown above, federal prosecutions for straw purchasing
and related offenses nationally appears to have fallen off significantly in recent years, despite
congressional efforts to increase ATF appropriations to combat gun trafficking.
In addition, at a hearing on Operation Fast and Furious, an ATF agent testified that the penalties
levied under current law are not harsh enough to deter gun trafficking to Mexican drug trafficking
organizations.69 He opined that the “statute doesn’t carry significant jail time,” and that straw
61 18 U.S.C. §922(a)(3).
62 18 U.S.C. §922(a)(5).
63 18 U.S.C. §924 (a)(1)(D).
64 18 U.S.C. §554.
65 Ibid.
66 U.S. Government Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico
Face Planning and Coordination Challenges, GAO-09-709, June 29, 2009, p. 21.
67 U.S. Congress, Fatally Flawed: Five Years of Gunwalking in Arizona, House Committee on Oversight and
Government Reform, Minority Staff Report, 112th Cong., 2nd Sess., January 2012, p. 72, http://www.scribd.com/doc/
79930290/%E2%80%9CFatally-Flawed-Five-Years-of-Gunwalking-in-Arizona-%E2%80%9D?tw_p=twt.
See also Colby Goodman and Michel Marizco, U.S. Firearms Trafficking to Mexico: New Data and Insights Illuminate
Key Trends and Challenges, Woodrow Wilson International Center for Scholars Mexico Institute and University of San
Diego Trans-Border Institute, September 2010, p. 29.
68 Ibid.
69 U.S. Congress, House Committee on Oversight and Government Reform, Operation Fast and Furious: Reckless
Decisions, Tragic Outcomes, 112th Cong., 1st sess., June 15, 2012, p. 120.
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purchases were viewed as “paperwork violations.”70 To explore this assertion, CRS requested
criminal caseload data from the U.S. Attorneys Office for 18 U.S.C. §§922(a)(6) and
924(a)(1)(A) for FY2004 through FY2010. It is noteworthy, however, that the criminal cases
under these provisions include violations involving false identities and entries, in addition to
straw purchases.
As Figure 1 shows, nationally, the defendants charged under §922(a)(6) declined from 459 for
FY2004 to 218 for FY2010, or by about half (-52.5%). Similarly, defendants convicted under
§922(a)(6) declined by more than half (-58.6%) for those years, even though they increased from
FY2007 to FY2008 (17.3%). The defendants charged under §924(a)(1)(A) also declined from 290
for FY2004 to 209 for FY2010, but at a slower rate of change (-27.9%). Convictions under that
provision also declined through FY2008 (-22.3%), but increased for FY2009 (18.7%) and
FY2010 (2.4%). Under either provision, about two-thirds of defendants were convicted during
FY2004 through FY2010 cumulatively.
Figure 1. Federal Defendants Charged and Convicted Nationally under 18 U.S.C.
§§922(a)(6) and 924(a)(1)(A)
FY2004-FY2010
Source: Data from U.S. Attorney’s Office. Figure created by CRS.
As Figure 2 shows, moreover, over a third of the individuals convicted under either provision
received no prison sentence. Over a third received a prison sentence of up to two years. The
remainder received prison sentences of greater than two years. Several individuals received life
sentences, but those individuals were likely career criminals who were convicted of additional
offenses.
70 Ibid.
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Figure 2. Federal Sentences Imposed Nationally under
18 U.S.C. §§922(a)(6) and 924(a)(1)(A)
FY2004-FY2010
Source: Data from U.S. Attorney’s Office. Figure created by CRS.
Firearms-Related Amendments to the Sentencing Guidelines
To provide federal judges and prosecutors with greater leverage, on January 19, 2011, the U.S.
Sentencing Commission (Commission) published proposed amendments to the sentencing
guidelines that potentially increase penalties under the GCA for cases involving cross-border
trafficking in small arms or ammunition, including straw purchases, and similar amendments to
the Arms Export Control Act (AECA; 22 U.S.C. §2778 et seq.).71 While the GCA amendments to
the Sentencing Guidelines Manual became effective on November 1, 2011, the Commission did
not adopt the AECA amendments. According to an April 6, 2011, press release, the Commission’s
Chair, Judge Patty B. Saris, stated, “Firearms trafficking across our borders is a national security
issue. The Commission is aware of the view [shared] by some that firearms trafficking is fueling
drug violence along our southwest border.”72
Brady Handgun Violence Prevention Act
After seven years of extensive public debate, Congress passed the Brady Handgun Violence
Prevention Act of 1993 (P.L. 103-159, the Brady Act)73 as an amendment to the Gun Control Act
of 1968, requiring background checks for firearms transfers between FFLs and non-licensed
persons. The Brady Act included both interim and permanent provisions.
71 United States Sentencing Commission, “Sentencing Guidelines for United States Courts ,” 76 Federal Register 3193,
January 19, 2011. See also, CRS Report R41696, How the Federal Sentencing Guidelines Work: An Overview, by
Charles Doyle.
72 United States Sentencing Commission, “U.S. Sentencing Commission Promulgates Permanent Amendment to the
Federal Sentencing Guidelines Covering Crack Cocaine, Other Drug Trafficking Offenses; Also promulgates
amendments regarding firearms and other offenses,” press release, April 6, 2011.
73 107 Stat. 1536, November 30, 1993.
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Interim Provisions
Under the interim provisions, which were in effect through November 1998, background checks
were required for handgun transfers, and licensed firearms dealers were required to contact local
chief law enforcement officers (CLEOs) to determine the eligibility of prospective customers to
be transferred a handgun. The CLEOs were given up to five business days to make such
eligibility determinations. Under the interim provisions, 12.7 million firearms background checks
(for handguns) were completed during that four-year period, resulting in 312,000 denials.
Permanent Provisions
On November 30, 1998, the Federal Bureau of Investigation (FBI) activated the National Instant
Criminal Background Check System (NICS) to facilitate firearms-related background checks,
when the permanent provisions of the Brady Act became effective. Through NICS, FFLs conduct
background checks on non-licensee applicants for both handgun and long gun transfers. The
objective of a Brady background check is to ensure that an unlicensed transferee is not a
prohibited person under the GCA. It is notable that federal firearms laws serve as the minimum
standard in the United States. States may choose, and have chosen, to regulate firearms more
strictly. For example, some states require set waiting periods and/or licenses for firearms transfers
and possession.
As part of a Brady background check, an FFL is required to submit a prospective firearm
transferee’s name, sex, race, date of birth, and state of residence through NICS. Social security
numbers and other numeric identifiers are optional, but the submission of such data is likely to
increase the timeliness of the background check (and reduce misidentifications).74 The
transferee’s information is crosschecked against three computerized databases/systems to
determine firearms transfer/possession eligibility. Those systems include the NICS index,
Interstate Identification Index (III), and National Crime Information Center (NCIC).75 If the
transferee indicates that he is foreign born, his information is also checked against the
immigration and naturalization databases maintained by the Department of Homeland Security,
Immigration and Customs Enforcement.76
According to the FBI, the NICS index contains disqualifying records not found in either the III or
NCIC on all the classes of prohibited persons enumerated in the GCA. It also includes records on
persons previously denied firearms transfers. As of May 2010, the NICS index included a little
over 6 million records.77 The III, or “Triple I,” is a computerized criminal history index pointer
system that the FBI maintains so that records on persons arrested and convicted of felonies and
serious misdemeanors at either the federal or state level can be shared nationally. All 50 states and
the District of Columbia participate in the III, and the system holds indices to nearly 70 million
74 Querying Records in the System, 28 C.F.R. §25.7.
75 Accessing Records in the System, 28 C.F.R. §25.6.
76 Those databases include the Central Index System (CIS), Computer Linked Application Information Management
System (CLAIMS), Deportable Alien Control System (DACS), National Automated Immigration Lookout System
(NAIL II), Nonimmigrant Information System (NIIS), Student and Exchange Visitor Information System (SEVIS),
Redesigned Naturalization Casework System (RNACS), Refugee, Asylum, and Parole System (RAPS), Enforcement
Case Tracking System (ENFORCE), and the Treasury Enforcement Communications System (TECS).
77 U.S. Department of Justice, Report to Congress Pursuant to the NICS Improvement Amendments Act of 2007 (P.L.
110-180), July 1, 2010, Appendix C.
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criminal history records.78 The NCIC includes files on information that is of immediate
importance and applicability to law enforcement officials. Several NCIC files include over 4.4
million records on potentially prohibited persons. Hence, those files are pertinent to the Brady
background check process. They include files on
• wanted persons (fugitives),
• persons subject to domestic abuse restraining orders,
• deported alien felons,
• persons in the U.S. Secret Service protective file,
• foreign fugitives, and
• known or suspected terrorists.
While the FBI handles background checks entirely for some states, other states serve as full or
partial points of contact (POCs) for background check purposes. In POC states, FFLs contact a
state agency, and the state agency contacts the FBI for such checks.79
As part of the Brady background check process, NICS will respond to an FFL or state official
with a NICS Transaction Number (NTN) and one of three outcomes: (1) “proceed” with transfer
or permit/license issuance, because a prohibiting record was not found; (2) “denied,” indicating a
prohibiting record was found; or (3) “delayed,” indicating that the system produced information
that suggested there could be a prohibiting record. Under the last outcome, a firearms transfer
may be “delayed” for up to three business days while NICS examiners attempt to ascertain
whether the person is prohibited.80 At the end of the three-day period, an FFL may proceed with
the transfer at his discretion if he has not heard from the FBI about the matter. The FBI,
meanwhile, will continue to work the NICS adjudication for up to 90 days, during which the
transaction is considered to be in an “open” status. If the FBI ascertains that the person is not in a
prohibited status at any time during the 90 days, then the FBI will contact the FFL through NICS
with a proceed response. If the person is subsequently found to be prohibited, the FBI will inform
ATF and a firearms retrieval process will be initiated.
78 Ibid., Appendix A.
79 In 13 states, state agencies serve as full POCs and conduct background checks for both long gun and handgun
transfers. In four states, state agencies serve as partial POCs for handgun permits, whereas in another four states, state
agencies serve as partial POCs for handgun transfers only. In these eight partial POC states, checks for long gun
transfers are conducted entirely through the FBI. In the 30 non-POC states, the District of Columbia, and five territories
(Guam, American Samoa, Northern Mariana Islands, Puerto Rico, and the Virgin Islands), FFLs contact the FBI
directly to conduct background checks through NICS for both handgun and long gun transfers. For state agencies
(POCs), background checks may not be as expeditious, but they may be more thorough because state agencies may
have greater access to databases and records that are not available through NICS. According to the Government
Accountability Office (GAO), this is particularly true for domestic violence misdemeanor offenses and protective
orders. For further information, see GAO, Gun Control: Opportunities to Close Loopholes in the National Instant
Criminal Background Check System, GAO-02-720, July 2002, p. 27.
80 Accessing Records in the System, 28 C.F.R. §25.6.
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Under no circumstances is an FFL informed about the prohibiting factor upon which a denial is
based.81 Under the Brady background check process, however, a denied person may challenge the
accuracy of the underlying record(s) upon which his denial is based.82 He would initiate this
process by requesting (usually in writing) the reason for the denial from the agency that
conducted the NICS check (the FBI or POC). The denying agency has five business days to
respond to the request. Upon receipt of the reason and underlying record for the denial, the denied
person may challenge the accuracy of that record. If the record is found to be inaccurate, the
denying agency is legally obligated to correct that record.83
As with other screening systems, particularly those that are name-based, false positives occur as a
result of Brady background checks, but the frequency of these misidentifications is unreported.
Nevertheless, the FBI has taken steps to mitigate false positives. In July 2004, DOJ issued a
regulation that established the NICS Voluntary Appeal File (VAF), which is part of the NICS
Index (described above).84 DOJ was prompted to establish the VAF to minimize the
inconvenience incurred by some prospective firearms transferees (purchasers) who have names or
birth dates similar to those of prohibited persons. So as not to be misidentified in the future, these
persons agree to authorize the FBI to maintain personally identifying information about them in
the VAF as a means to avoid future delayed transfers. Current law requires that NICS records on
approved firearm transfers, particularly information personally identifying the transferee, be
destroyed within 24 hours (see heading below, “Background Check Fee and Record Retention”).
Under the GCA, there is also a provision that allows the Attorney General (previously, the
Secretary of the Treasury) to consider petitions from a prohibited person for “relief from
disabilities” and have his firearms transfer and possession eligibility restored.85 Since FY1993,
however, a rider on the ATF annual appropriations for salaries and expenses has prohibited the
expenditure of any funding provided under that account on processing such petitions.86 While a
prohibited person arguably could petition the Attorney General, bypassing ATF, such an
alternative has never been successfully tested. As a result, the only way a person can reacquire his
lost firearms eligibility is to have his civil rights restored or disqualifying criminal record(s)
expunged or set aside, or to be pardoned for his crime.
81 Statement of Daniel D. Roberts, Assistant Director, Criminal Justice Information Services, Federal Bureau of
Investigation, Terrorists and Guns: The Nature of the Threat and Proposed Reforms: Hearing Before the S. Comm. on
Homeland Sec. and Gov’t Affairs, 111th Cong., May 5, 2010.
82 Correction of Erroneous System Information, 28 C.F.R. §25.10.
83 Ibid.
84 Final Rule, National Instant Criminal Background Check System Regulation, 69 Federal Register 43892 (July 23,
2004) (codified at 28 C.F.R. §25.10(g)).
85 18 U.S.C. §925(c). See also Relief from Disabilities Under the Act, 27 C.F.R. §478.144.
86 For FY1993, see P.L. 102-393; 106 Stat. 1732 (1992). For FY2012, see P.L. 112-55; 125 Stat. 552, 609 (November
18, 2011). The FY2012 limitation provides: “That none of the funds appropriated herein shall be available to
investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c).”
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Table 4. Brady Background Checks for Firearms Transfers and Permits
1998-2009
Total Annual
S&L
POC
Year
Checks Denials
FBI
Checks
Checks FBI
Denialsa
Denialsb
1998 893,127
18,647
507,000
386,127
8,836
9,811
1999 8,621,315 204,455
4,538,000
4,083,315 81,000
123,455
2000 7,698,643 153,087
4,260,270
3,438,373 66,808 86,279
2001 7,957,926 150,500
4,291,926
3,666,000 64,500 86,000
2002 7,805,792 135,973
4,248,893
3,556,899 60,739 75,234
2003 7,831,146 126,181
4,462,801
3,368,345 61,170 65,011
2004 8,083,809 125,842
4,685,018
3,398,791 63,675 62,167
2005 8,277,873 131,916
4,952,639
3,325,234 66,705 65,211
2006 8,612,201 134,442
5,262,752
3,349,449 69,930 64,512
2007 8,658,245 135,817
5,136,883
3,521,362 66,817 69,000
2008 9,900,711 147,080
5,813,249
4,087,462 70,725 76,355
2009 10,764,237 150,013
4,680,809
4,987,459 67,324 82,689
Total 95,105,025
1,613,953
54,242,859
40,862,166 748,229 865,724
Source: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, available at
http://bjs.ojp.usdoj.gov/index.cfm?ty=pbse&sid=13.
Notes: On November 30, 1998, the interim provisions of the Brady Handgun Violence Prevention Act (P.L.
103-159) ended, and the permanent provisions were implemented when the FBI stood up the National Instant
Criminal Background Check System (NICS).
a. In non-point of contact (non-POC) states, federal firearms licensees contact the FBI directly to conduct
NICS background checks.
b. In point of contact (POC) states, federal firearms licenses contact a state agency and, in turn, the state
agency contacts the FBI to conduct NICS background checks.
As shown in Table 4, under the permanent provisions of the Brady Act (December 1998 through
2009), more than 95.1 million checks were completed, resulting in more than 1.6 million denials,
or nearly a 1.7% denial rate. More than 54.2 million of these checks were completed entirely by
the FBI for non-point of contact (non-POC) states, the District of Columbia, and four territories.
Those checks resulted in a denial rate of nearly 1.4%. Nearly 40.9 million checks were conducted
by full or partial point of contact (POC) states.87 Those checks resulted in a higher denial rate of
2.1%. Table 5 shows breakouts for NICS denials by reasons and by denying agency.
87 Ibid.
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Table 5. Estimated Brady Background Check Denials
(1999 through 2009)
Total
FBI
State
Local
Reasons for denial
Denials % Denials % Denials % Denials %
Felony
904,904 56.1 482,608 64.5 387,491
52.8 34,806 26.4
indictment/conviction
State law prohibition
92,311
5.7
19,454
2.6
56,509
7.7
16,348
12.4
Domestic violence
237,323
14.7
119,717
16.0
99,808
13.6
17,798
13.5
Misdemeanor
176,210 10.9 86,795 11.6 74,122
10.1 15,293 11.6
conviction
Restraining
order 61,113 3.8 32,922 4.4 25,686
3.5 2,505 1.9
Fugitive
101,001 6.3 49,383 6.6 49,904
6.8 1,714 1.3
Illegal
alien
13,322 0.8 9,727 1.3 2,936
0.4 659 0.5
Mental illness or
28,637 1.8 4,489 0.6 18,347
2.5 5,801 4.4
disability
Drug
user/addict
77,420 4.8 57,614 7.7 8,073
1.1 11,734 8.9
Local law prohibition
6,724
0.4
0
0
6,724
5.1
Other prohibitions
152,310
9.4
5,238
0.7
110,816
15.1
36,256
27.5
Totalsa 1,613,953
100.0
748,229
100.0
733,884
100.0
131,840
100.0
Source: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Background Checks for
Firearms Transfers, 2009—Statistical Tables, by Michael Bowling et al., available at http://bjs.ojp.usdoj.gov/
index.cfm?ty=pbdetail&iid=2214.
a. Denials by reason subtotals are based upon percentages reported by BJS, which were applied to total
denials by the FBI and state and local officials. Consequently, denials by reason may not sum precisely to the
totals.
National Criminal History Improvement Program (NCHIP)
Under the Brady Act, Congress authorized a grant program known as the National Criminal
History Improvement Program (NCHIP), the initial goal of which was to improve electronic
access to firearms-related disqualifying records, particularly felony conviction records.88 DOJ’s
Bureau of Justice Statistics (BJS) administers this program, under which grants are made to states
to assist in updating and automating criminal history and other related records so that they are
able to participate effectively in key federal criminal justice systems.89 Besides the NICS Index,
III, and NCIC, these systems also include the Integrated Automated Fingerprint Identification
System (IAFIS) and the National Sex Offender Registry (NSOR).90 This grant program is
administered by BJS, which is part of the Office of Justice Programs.
88 For further information, see Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, National
Criminal History Program (NCHIP): Improving Criminal History Records for Background Checks, 2005, July 2006.
89 Ibid.
90 Ibid.
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Table 6. NCHIP Appropriations, FY1995 though FY2012
(dollars in millions)
Fiscal Year
Appropriation
FY1995 100.000
FY1996 26.500
FY1997 51.750
FY1998 47.750
FY1999 45.000
FY2000 35.000
FY2001 35.000
FY2002 38.000
FY2003 42.721
FY2004 32.634
FY2005 27.577
FY2006 12.796
FY2007 12.805
FY2008 12.220
FY2009 13.000
FY2010 14.500
FY2011 9.500
FY2012 6.000
Total 562.753
Source: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics.
Table 6 shows that over the last 18 years (FY1995-FY2012), Congress has appropriated nearly
$562.8 million for NCHIP, or an annual average of $31.3 million. Nevertheless, in 2007
congressional testimony following the April 16, 2007, Virginia Tech tragedy, DOJ reported that
approximately half of the 70 million criminal history records in the Interstate Identification Index
(III) were missing final dispositions—a circumstance that often results in delayed background
checks and firearms transfers.91 It was also reported that many states had not forwarded any
records on persons adjudicated mentally defective to the FBI. As of April 30, 2007, the FBI
reported that 22 states had contributed nearly 168,000 mental defective records to the FBI for
inclusion in the NICS index;92 however, other states had declined to report persons adjudicated
mentally defective to the FBI. In many cases, state mental health, patients’ rights, and privacy
laws prohibited the disclosure of those records.93 Other states may not have been able to report
91 Statement of Rachel L. Brand, Assistant Attorney General for Legal Policy, Department of Justice at the Committee
on Oversight and Government Reform Hearing on Lethal Loopholes in Gun Purchase Laws, May 10, 2007, p. 126.
92 Ibid, p. 138.
93 New York state, for example, had such a provision. See Section 33.13 of the Mental Health Law, which addresses
the rights of patients and confidentiality of mental health records. Since enactment of P.L. 110-180, however, the New
York State legislature addressed this issue and now provides mental defective records to the FBI for inclusion in the
NICS Index.
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such persons to the FBI because mental health “databanks” that would include such records are
not maintained.94 Following the Virginia Tech tragedy, the NICS mental defective file increased
from 175,000 to 400,000 individual records, with California contributing more than 200,000 of
those records.95 By May 2010, that number had increased to more than 859,000 records, due in
large part to NCIS Improvement Amendments Act (described below).96 However, about half of
the states had not contributed any records or had contributed only a handful of such records.97
For FY2012, the President’s budget request included $12.0 million for NCHIP. The House-
reported FY2012 Commerce-Justice-Science (CJS) appropriations bill (H.R. 2596) would have
provided $6.0 million for NCHIP. The Senate-passed CJS appropriations bill (S. 1572) would
have provided $8.0 million for this program. S. 1572 was folded into the Senate-passed FY2012
Minibus appropriations bill (H.R. 2112). The House- and Senate-passed conference report version
of H.R. 2112 (H.Rept. 112-284), which the President has signed into law (P.L. 112-55), provides
$6.0 million for NCHIP.
For FY2013, the Senate-reported CJS appropriations bill (S. 2323) would provide $6 million for
NCHIP, the same amount as requested by the Administration. The House Committee on
Appropriations ordered reported a similar measure that would provide the same amount for
NCHIP.
NICS Act Record Improvement Program (NARIP)
Under the NICS Improvement Amendments Act of 2007,98 Congress authorized the Attorney
General to make additional grants to states to improve further electronic access to records,
including court disposition and corrections records, which are necessary to fully facilitate NICS
background checks. Under the act, the Attorney General is required to report annually to
Congress on federal department and agency compliance with the act’s provisions. Because BJS
administers this program, the BJS Director is required to report annually on the progress that
states are making in providing reasonable estimates of the number of firearms-related
disqualifying records that they have jurisdiction over, as well as the number of those records that
have been made accessible to the FBI for NICS background check purposes.99 BJS has designated
this grant program the “NICS Act Record Improvement Program (NARIP),” although
congressional appropriations documents simply refer to it as “NICS improvement.”
As shown in Table 7, Section 103(e) of the act included an authorization for appropriations for
FY2009 through FY2013. The act directs that the grants provided under this authorization be
made “in a manner consistent” with NCHIP. The act also requires that between 3% and 10% of
each grant be allocated for a relief from disabilities program for persons adjudicated mentally
94 Donna M. Norris, M.D. et al., “Firearms Laws, Patients, and the Roles of Psychiatrists,” American Journal of
Psychiatry, 163:8, August 2006, p. 1394.
95 Dan Eggen, “FBI’s Gun Ban Listing Swells: Thousands Added To File Marked ‘Mental Defective,’” Washington
Post, November 30, 2007, A01.
96 U.S. Department of Justice, Report to Congress Pursuant to Requirements of the NICS Improvement Amendments
Act of 2007 (P.L. 110-180), July 1, 2010, Appendix C. Records Available in the NICS, as of May 10, 2010.
97 Ibid.
98 P.L. 110-180; January 8, 2008; 121 Stat. 2559.
99 See U.S. Department of Justice, Report to Congress Pursuant to the NICS Improvement Amendments Act of 2007
(P.L. 110-180), July 1, 2010.
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defective. Also, as shown in Table 7, Section 301(e) of the act included an additional
authorization for appropriations for the same fiscal years to improve state court computer systems
to improve timeliness of criminal history dispositions. Under both authorizations, up to 5% of all
grant funding may be set aside to provide assistance to tribal governments.
Table 7. NICS Improvement Authorizations and Appropriations under P.L. 110-180
(dollars in millions)
Fiscal Year
Section 103(e)
Section 301(e)
Actual Appropriation
FY2009 125
62.5 10.000
FY2010 250
125.0 20.000
FY2011 250
125.0 16.567
FY2012 125
62.5 5.000
FY2013 125
62.5
Total 875 437.5 51.567
As an additional incentive, Section 102 of P.L. 110-180 also provides that on January 8, 2011, any
state that provides at least 90% of disqualifying records is eligible for a waiver of the 10% match
requirement under NCHIP for two years.100 To be eligible for the waiver, as well as Section 103
grants, states are required to provide BJS with a reasonable estimate of the number of NICS-
related disqualifying records that they hold within 180 days of enactment (July 6, 2008).
To further encourage compliance, Section 104 of P.L. 110-180 includes a schedule of
discretionary and mandatory reductions in Byrne Justice Assistance Grants (JAGs)101 for states
that do not provide certain percentages of disqualifying records:
• for a two-year period (January 8, 2011, through January 8, 2013), the Attorney
General may withhold up to 3% of JAG funding from any state that provides less
than 50% of disqualifying records;
• for a five-year period (January 8, 2013, through January 8, 2018), the Attorney
General may withhold up to 4% of JAG funding from any state that provides less
than 70% of disqualifying records; and
• after January 8, 2018, the Attorney General is required to withhold 5% of JAG
funding from any state that provides less than 90% of disqualifying records.
The Attorney General’s assessments of a state’s progress is to be based upon the reasonable
estimates that the state itself is required to provide under the act for the purposes of implementing
the Section 103 grants and the Section 102 NCHIP waiver (discussed above).102 The act also
100 For FY2005-FY2010, BJS invoked its discretionary authority to increase the match requirement to 20%. For
FY2011, BJS reportedly reduced the match requirement to 10%, the percentage match requirement set out under the
Crime Identification Technology Act (CITA; P.L. 105-251); CRS conversation with BJS on March 7, 2011.
101 For further information, see CRS Report RS22416, Edward Byrne Memorial Justice Assistance Grant (JAG)
Program, by Nathan James.
102 As of July 1, 2010, 41 states and 1 territory had provided estimates to DOJ. As of December 31, 2009, 68 federal
departments or agencies had also responded to a DOJ survey related to their obligations under P.L. 110-180. Twenty-
two reported possessing no disqualifying information. Twenty-three reported possessing secondary disqualifying
information (e.g., employment background check investigative results). Ten agencies claimed to create and possess
(continued...)
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allows the Attorney General to waive the mandatory 5% cuts if a state provides substantial
evidence that it is making reasonable compliance efforts.
Congress appropriated $10 million for NARIP in FY2009 and $20 million in FY2010. These
amounts were well below the authorized levels in P.L. 110-180. In FY2009, BJS awarded $2.5
million in NARIP grants to the following grantees (individual amounts in parentheses):
• Nevada Department of Public Safety ($798,000),
• New York Division of Criminal Justice Services ($937,000), and
• Oregon State Police ($771,000).103
In FY2010, BJS awarded $16.9 million in NARIP grants to the following grantees (individual
amounts in parentheses):
• Florida Department of Law Enforcement ($3.159 million),
• Idaho State Police ($1.950 million),
• Illinois State Police ($1.210 million),
• New Jersey Administrative Office of the Courts ($860,000),
• New York Division of Criminal Justice Services ($5.995 million),
• Oregon State Police ($2.0 million),
• Texas Department of Public Safety ($752,000), and
• Wisconsin Office of Justice Assistance ($981,000).104
In FY2011, BJS awarded $20.1 million in NARIP grants to the following grantees (individual
amounts in parentheses):
• Arizona Criminal Justice Commission ($582,930);
• Connecticut Office of Policy and Management, the Judicial Branch, and the
Department of Mental Health and Addiction Services ($3.250 million);
• Florida Department of Law Enforcement ($2.575 million);
• Idaho State Police and the Idaho courts system ($1.206 million);
• Kentucky Justice and Public Safety Cabinet ($1.390 million);
• New Jersey Administrative Office of the Courts ($2.773 million);
• New York State Division of Criminal Justice Services ($3.199 million);
(...continued)
disqualifying information. And, ATF was reviewing those claims to determine whether that information was relevant to
a NICS background check. Fourteen agencies needed further clarification from DOJ. See U.S. Department of Justice,
Report to Congress Pursuant to the NICS Improvement Amendments Act of 2007 (P.L. 110-180), July 1, 2010, pp. 5-6.
103 U.S. Department of Justice, Report to Congress Pursuant to Requirements of the NICS Improvement Amendment
Act of 2007 (P.L. 110-180), July 1, 2010, p. 10.
104 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, “NICS Improvement
Amendments Act of 2007,” http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=49.
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• North Dakota Office of Attorney General’s Bureau of Criminal Investigation and
Information Technology divisions ($205,973);
• Oregon State Police ($1.131 million);
• Texas Office of Court Administration ($547,039);
• Virginia State Police (VSP) and Supreme Court of Virginia ($764,100); and
• Wisconsin Office of Justice Assistance, Department of Justice, Department of
Corrections, and Administrative Office of the Courts ($2.500 million).105
To be eligible for NARIP grants, states must certify that they have established a relief from
disabilities program for persons adjudicated to be mentally defective, whereby they can petition
to have their gun rights restored. For FY2009, only 14 states submitted certification applications
and only three were certified (Nevada, New York, and Oregon) and awarded grants. DOJ
suggested that one factor that might have inhibited states from applying for NARIP grants is
opposition at the state level to restoring firearm rights under any circumstance.106 Another factor
that might have influenced a state’s choice is that NARIP funding only became available in
March 2009, leaving little time to respond to the June 22, 2009, certification deadline.107 Other
factors included budget constraints and the need to pass implementing legislation.108 As shown
above, eight states were awarded grants for FY2010. As of September 30, 2010, nine states had
been certified.109
For FY2012, the President’s budget request included $12.0 million for this program. The House-
reported FY2012 CJS appropriations bill (H.R. 2596) would have provided $5.0 million
for NARIP. The Senate-passed FY2012 CJS appropriations bill (S. 1572) would have provided
$10.0 million for this program. S. 1572 was folded into the Senate-passed FY2012 Minibus
appropriations bill (H.R. 2112). The House- and Senate-passed conference report version of H.R.
2112 (H.Rept. 112-284), which the President has signed into law (P.L. 112-55), provides $5.0
million for NARIP.
For FY2013, the Senate-reported CJS appropriations bill would provide $7.0 million for NARIP,
or $2.0 million over the $5.0 million requested by the Administration. The House Committee on
Appropriations ordered reported a similar measure that would provide $12.0 million for NARIP.
Background Check Fee and Record Retention
Beginning in FY1999, Congress has prohibited the collection of any fee for firearms-related
background checks made through the FBI-administered NICS in DOJ appropriations.110
105 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, “State-by-State Summaries for
FY2011 NICS Improvement Amendments Act Grant Awards,” http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=
491#funding.
106 U.S. Department of Justice, Report to Congress Pursuant to the NICS Improvement Amendments Act of 2007 (P.L.
110-180), July 1, 2010, p. 12.
107 Ibid.
108 Ibid.
109 CRS conversation with BJS on March 7, 2011.
110 In the 110th Congress, the House-passed H.R. 2640 and Senate-reported S. 2084 include provisions that would
permanently codify the NICS fee prohibition (see discussion of the NICS Improvement Amendments Act of 2007
(continued...)
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Beginning in FY2004, that provision also included language to require the next-day destruction of
approved background check records. The issue of approved Brady background check record
retention has been contentious since the inception of the FBI-administered NICS, because a
provision in the Brady Act (§103(i)) prohibits the establishment of any electronic registry of
firearms, firearms owners, or approved firearms transactions and dispositions.
Nevertheless, under Attorney General Janet Reno DOJ proposed a rule on October 30, 1998, that
would have allowed such records to be maintained for up to six months for audit purposes.111 The
NRA challenged this proposed rule in federal court, arguing that retaining the approved records
was tantamount to a temporary registry. On July 11, 2000, the United States Court of Appeals for
the District of Columbia found that nothing in the Brady Act prohibited the temporary retention
of information about lawful firearms transfers for certain audit purposes.112 On January 22, 2001,
DOJ promulgated a final rule that allowed such records to maintained for up to 90 days.113
Attorney General John Ashcroft opposed this rule, however, and DOJ proposed another rule on
July 6, 2001, that called for the next-day destruction of those files.114
In July 2002, meanwhile, GAO reported that under Attorney General Reno, the FBI had
conducted “non-routine” searches of the NICS audit log for law enforcement agencies to
determine whether a person, whom subsequent information showed was a prohibited person, had
been transferred a firearm within the previous 90 days. The FBI informed GAO that such
searches were routinely conducted but were a “secondary benefit” given that the audit log was
maintained primarily to check for system “accuracy, privacy, and performance.” In addition,
GAO reported that the next-day destruction of records would “adversely affect” other NICS
operations, including firearms-retrieval actions, NICS audit log checks for previous background
checks, verifications of NICS determinations for federal firearms licensees, and ATF inspections
of federal firearms licensees’ record keeping.115
Despite those adverse affects, opponents of greater federal gun control viewed the non-routine
use of NICS records as being beyond the scope of authority given to the Attorney General under
the Brady Act. GAO reported that DOJ took steps to minimize the adverse affects of the next-day
destruction of those records. In the wake of the September 11, 2001, terrorist attacks, additional
issues regarding Brady background checks emerged (see heading below, “Terrorist Watch List
Screening and Brady Background Checks”).
The Consolidated and Further Continuing Appropriations Act, 2012 (H.R. 2112), which the
President has signed into law (P.L. 112-55), includes “futurity” language in the provision (§511)
requiring that NICS approved firearm transfer records be destroyed within 24 hours. This
“futurity” language makes the provision permanent law, as opposed to an annual appropriations
restriction. Similar language was included in the House-reported FY2012 CJS appropriations bill
(...continued)
above). For FY2012, such a prohibition is also included on an annual basis in the House-reported Commerce, Justice,
Science Appropriations bill (H.R. 2596).
111 63 Federal Register 58303.
112 NRA v. Reno (No. 99-5270, 216 F. 3d 122; 2000 U.S. App. Lexis 15906).
113 66 Federal Register 6470.
114 66 Federal Register 35567.
115 For further information on these issues, see GAO, Gun Control: Potential Effects of Next-Day Destruction of NICS
Background Check Records, GAO-02-653, July 2002.
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(H.R. 2596). Senator Orrin Hatch offered several related amendments during Senate
consideration of H.R. 2112, but the Senate ultimately did not vote upon those amendments.
Overview of Legislative Action in the 111th Congress
During the 111th Congress, the gun control debate was colored by two key Supreme Court
decisions.116 In District of Columbia v. Heller, the Court found that the District of Columbia (DC)
handgun ban, among other regulations, violated an individual’s right under the Second
Amendment to lawfully possess a firearm in his home for self-defense. In McDonald v. City of
Chicago, the Court found that an individual’s right to lawfully possess a firearm for the purposes
of self-defense under the Second Amendment applied to the states by way of the Fourteenth
Amendment. Although the decision arguably limits a state’s, city’s, or local government’s ability
to prohibit handguns outright, it does not precisely delineate what would constitute permissible
gun control laws under the Second Amendment. Consequently, these delineations will likely be
developed in future cases.
In the 111th Congress, Members revisited several gun control issues that were previously
considered in the 110th Congress. For example, some Members in the House of Representatives,
who were dissatisfied with the District’s response to the Heller decision, passed a bill in the 110th
Congress that would have overturned provisions of the District’s revised gun laws. In the 111th
Congress, Members of the Senate amended and passed a DC voting rights bill (S. 160) with
similar language.117 When the House turned its attention to DC voting rights, the leadership
attempted to negotiate a compromise but ultimately tabled its version of the DC voting rights bill
(H.R. 157) rather than risk amendments to overturn DC guns laws. The DC gun amendments
were introduced as stand-alone bills (H.R. 5162/S. 3265). So far, the 112th Congress has not
revisited this issue.
In the 111th Congress, the Senate Veterans’ Affairs Committee reported stand-alone legislation
that would have revamped procedures by which veterans are adjudicated “mentally incompetent”
and, thus, lose their firearms possession and transfer eligibility (S. 669). This reported bill
reflected an amendment that Senator Richard Burr had offered and the Senate committee had
adopted in the 110th Congress during consideration of S. 2969. Also in the 111th Congress, the
House Veterans’ Affairs Committee considered a draft veterans’ benefits bill and adopted an
amendment offered by Representative John Boozman that included similar provisions. However,
when the House considered the reported bill (H.R. 6132) under suspension of the rules, it was
called to the floor without the Boozman provisions. As discussed below, this issue has reemerged
in the 112th Congress, when the House passed similar legislation (H.R. 2349).
In the 111th Congress, the Senate also considered an amendment offered by Senator John Thune to
the FY2010 Defense Authorization Act (S. 1390) that was narrowly defeated and arguably would
have provided for national reciprocity between states regarding the concealed carry of firearms.
In the 112th Congress, the House has passed similar legislation (H.R. 822). In addition, the Senate
Committee on Homeland Security and Governmental Affairs held a hearing on denying firearms
to persons watch-listed as known or suspected terrorists (S. 1317/H.R. 2159 and S. 2820). The
116 For a legal analysis, see CRS Report R41750, The Second Amendment: An Overview of District of Columbia v.
Heller and McDonald v. City of Chicago, by Vivian S. Chu.
117 For further information, see CRS Report R40474, DC Gun Laws and Proposed Amendments, by Vivian S. Chu.
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112th Congress revisited related issues during consideration of legislation to reauthorize the USA
PATRIOT Act (H.R. 1800, S. 1038, and S. 990).
Several other legislative issues were considered in the 111th Congress that might remerge in the
112th Congress. For example, the House Financial Services Committee reported a bill (H.R. 3045;
H.Rept. 111-277) that included a provision that would have prohibited public housing authorities
from barring tenants from possessing legal firearms as a condition of their lease. This committee
approved another housing bill that included a similar provision (H.R. 4868). The House also
passed amendments (H.R. 5827) to federal bankruptcy law that would have allowed persons to
claim either a single firearm or a collection of firearms of up to $3,000 in value as a federal
exemption.118 And, on at least two occasions, the Senate Committee on the Judiciary scheduled a
hearing on a bill to reform federal statutes under which federally licensed firearms dealers are
regulated (S. 941/H.R. 2296).
In the 111th Congress, Members sponsored several proposals that were enacted. The Senate
adopted an amendment offered by Senator Tom Coburn to the Credit CARD Act of 2009 (H.R.
627) to allow people to carry firearms in national parks and wildlife refuges.119 The House voted
on the Coburn amendment as a separate measure and passed it as well (P.L. 111-24). The Senate
adopted an amendment offered by Senator Roger Wicker to the FY2010 Transportation-HUD
appropriations bill (H.R. 3288) that allows private persons to carry firearms in their checked
luggage on Amtrak trains. H.R. 3288 became the vehicle for the Consolidated Appropriations Act,
2010 (P.L. 111-117), which included the Wicker provision. Congress reconsidered and passed
amendments to the Law Enforcement Officers Safety Act (LEOSA; P.L. 108-277) to clarify and
widen eligibility for certain qualified police officers to carry concealed firearms across state lines
(S. 1132; P.L. 111-272). Congress altered, but continued to make permanent, a funding limitation
on the release of ATF firearms trace data (P.L. 111-8 and P.L. 111-117), which is known for its
original sponsor, Representative Todd Tiahrt.
In addition, two firearms-related provisions were included in the Ike Skelton National Defense
Authorization Act for Fiscal Year 2011 (P.L. 111-383). One provision (§1062), sponsored by
Senator Jim Inhofe, prohibits the Secretary of Defense, and by implication base commanders,
from collecting any information on privately owned firearms kept by military personnel,
Department of Defense civilian employees, and their family members off-base. Another provision
(§346) sponsored by Senators Jon Tester and Max Baucus addresses the demilitarization of small
arms ammunition of several types and calibers, which is commonly sold as military surplus.
For the 111th Congress, gun trafficking across the Southwest border from the United States to
Mexico was also an ongoing concern, as it has been for the 112th Congress.120 The Consolidated
Appropriations Act, 2010 (P.L. 111-117), included increased funding for ATF to investigate
118 For further information, see CRS Report R41799, Exemptions for Firearms in Bankruptcy, by Carol A. Pettit and
Vastine D. Platte.
119 Regarding public lands, the 112th Congress might consider additional proposals related to firearms carrying on
public lands, such as water resources management projects (e.g., reservoirs at Corps-operated dams and inland
waterways) managed by the Army Corps of Engineers or federal lands managed by the Bureau of Land Management
(BLM). For related proposals in the 112th Congress, see the Recreational Self-Defense Act of 2011 (H.R. 1865/S. 1588)
and the Recreational Shooting Act (H.R. 3440 and H.R. 4089). As described below, the House passed H.R. 4089 on
April 17, 2012.
120 For further information, see CRS Report R40733, Gun Trafficking and the Southwest Border, by Vivian S. Chu and
William J. Krouse.
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additional gun trafficking cases.121 In addition, Congress provided ATF with an FY2010
supplemental appropriation to combat further Southwest border gun trafficking (P.L. 111-230).
For a fuller discussion of legislative action in the 111th Congress, see Appendix A.
Emerging Issues in the 112th Congress
In the Consolidated and Further Continuing Appropriations Act, 2012 (H.R. 2112; P.L. 112-55),
Congress included language that prohibits any funding provided under it from being expended to
conduct investigations that allow firearms to be “walked.” Revelations about ATF’s conduct of a
Phoenix, AZ-based Project Gunrunner investigation known as “Operation Fast and Furious” were
the impetus for this language. The Attorney General has been questioned during several
congressional hearings about who among the departmental officials conceived of, knew about,
and/or approved this operation. It has led to the resignation of the U.S. Attorney for the District of
Arizona. The House Committee on Oversight and Government Reform has held several hearings
specifically on matters related to this operation. When the President asserted executive privilege
rather than turn over additional, subpoenaed documents, the committee approved a report
(H.Rept. 112-546) and accompanying resolution (unnumbered) to hold the Attorney General in
contempt of Congress for his failure to produce subpoenaed documents.122
Several other gun control issues have emerged in the 112th Congress. For example, the House
passed a bill (H.R. 822) that would establish greater reciprocity between states with firearms
concealed carry statutes. The House also passed a Veterans Benefits bill (H.R. 2349) that would
prohibit the Department of Veterans Affairs from making mentally incompetent determinations
about beneficiaries for the purposes of gun control, unless such determinations were made by a
judge, magistrate, or other judicial authority. Firearms-related amendments were also offered to
bills that extended an expiring USA PATRIOT Act provision related to national security
investigations and FBI access to business records. Moreover, the January 8, 2011, Tucson, AZ,
shootings, in which Representative Gabrielle Giffords was severely wounded, have also prompted
debate about the efficacy of several gun control proposals.
Concealed Carry and National Reciprocity123
The 112th Congress has revisited the issue of concealed carry and national reciprocity. On October
25, 2011, the House Committee on the Judiciary ordered reported the National Right-to-Carry
Reciprocity Act of 2011 (H.R. 822) by a vote (19-11) that was nearly split down party lines
following several days of contentious markup. On November 10, 2011, the committee reported
H.R. 822 (H.Rept. 112-277). On November 16, 2011, the House considered and passed H.R. 822,
amended, by a recorded vote: 272-154 (Roll no. 852).
H.R. 822 would establish an increased level of reciprocity among states that have laws that allow
civilians to carry handguns in a concealed fashion. Under state law, 38 states, most recently
121 For further information, see CRS Report RL34514, The Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF): Budget and Operations for FY2008, FY2009, and FY2010, by William J. Krouse.
122 http://oversight.house.gov/fastandfuriousinvestigation/.
123 For additional information, see CRS Report R42099, Federal Laws and Legislation on Carrying Concealed
Firearms: An Overview, by Vivian S. Chu.
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Wisconsin, have enacted “shall issue” concealed carry laws, meaning permits are issued to all
eligible applicants.124 Ten states have enacted more restrictive “may issue” laws, meaning state
and/or local authorities have discretion whether to issue permits.125 In those states, applicants
usually must demonstrate a need to carry a concealed handgun to the authorities. At one end of
the spectrum, Alaska, Arizona, Wyoming, and Vermont allow concealed carry without a permit.126
At the other end, Illinois and the District of Columbia allow no concealed carry of firearms by
civilians.
With regard to interstate reciprocity, a handful of states have “recognition” statutes that recognize
any state-issued concealed carry permit. Other states have “open” statutes that allow any resident
of the United States, without regard to state residency, to apply for a concealed carry permit. Still
other states have “hybrid” statutes that include elements of both the recognition and open statutes.
Contiguous “shall issue” states often extend reciprocity to one another. However, some “shall
issue” states have opted not to extend reciprocity to other “shall issue” states for a variety of
reasons, even though they might have extended reciprocity to arguably more restrictive “may
issue” states. The end result is a complicated array of state laws that arguably makes it very
challenging for any individual to discern his legal ability to travel interstate with a concealed
handgun.
Under H.R. 822, as ordered reported, a permit holder from state A would be able to travel to state
B with a concealed handgun as long as state B had a concealed carry law, no matter which type
(“shall” or “may” issue). The permit holder from state A would be required to comply with all
other laws in state B, with the exception of the laws governing eligibility for and issuance of
concealed carry permits. Several issues could arise, however. First, the bill makes no allowance
for the difference between more permissive “shall issue” and more restrictive “may issue” state
laws. Therefore, the bill could be viewed as an imposition by “shall issue” states over “may
issue” states. Depending upon the circumstances, the bill could also be viewed as an imposition
by some “shall issue” states over other “shall issue” states, depending upon differences in their
respective concealed carry laws. For example, some “shall issue” states have good moral
character clauses as part of their eligibility requirements, others do not. Some require “live fire”
training prior to permit issuance, others do not. Some require a mental health evaluation, others
do not. Several states issue permits to persons 18 years of age, while most states require
applicants to be 21 years of age.
Another issue that has emerged is “forum shopping,” that is, one state’s residents going to another
state with an “open” statute so that they can return to their own state with a concealed carry
permit that they would not have otherwise been able obtain in their own state. While language has
been included in the bill, as ordered reported, that would arguably prevent individuals from forum
shopping among states, Representative Daniel Lungren offered an amendment that the committee
124 Wisconsin’s concealed carry permit went into effect on November 1, 2011. “Shall issue” states include Alaska,
Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan,
Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North
Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia,
Washington, West Virginia, Wisconsin, and Wyoming.
125 Alabama and Connecticut are “may issue” states that are considered to be more permissive than other “may issue”
states. Those states include California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and
Rhode Island.
126 Alaska and Arizona issue permits to residents who seek to carry concealed firearms in other states that extend
reciprocity to residents of Alaska.
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adopted that would require GAO to conduct a study of “open” state concealed carry laws and
their implications for public safety.
The committee also adopted a substitute amendment offered by Representative Trent Franks at
the outset of the markup. Twelve other amendments were offered, but all were defeated. Minority
Members offered amendments that would have denied concealed carry permits to categories of
persons on terrorist watch lists and several classes of misdemeanants, including sex offenders,
stalkers, drug traffickers to minors, and assailants of police officers. Other amendments addressed
the need for more secure and verifiable concealed carry documentation and interstate information
sharing on permittees for law enforcement and public safety purposes. Representative Louie
Gohmert offered an amendment that would have allowed concealed carry in the District of
Columbia, but it too was defeated.
Proponents argue that establishing reciprocity on such a basis would be similar to the mutual
recognition of out-of-state driver licenses. Opponents counter that most state driver license
eligibility requirements are remarkably similar, unlike concealed carry eligibility requirements.
Furthermore, states have opted to recognize the driver licenses of other states largely on their own
accord without congressional intervention. Proponents contend further that criminals are less
likely to victimize individuals who could be armed, thus leading to a reduction in crime. To
support this view, the chairman of the House Committee on the Judiciary, Representative Lamar
Smith, noted during the markup that, according to the National Rifle Association (NRA),
concealed carry states on average had lower violent crime rates (22%) than states that did not
have such laws.127 Opponents argue that introducing more firearms into potentially life
threatening situations increases the likelihood that a firearm would be misused and innocent
persons wounded or killed. To support their view, they have cited data compiled by the Violence
Policy Center, which reported that from May 2007 through October 25, 2011, concealed carry
permit holders had killed 11 law enforcement officers and 375 private citizens, and had engaged
in 20 mass shootings and 29 murder/suicides.128
Several other concealed carry bills have been introduced in the House and the Senate. In the
House, for example, Representative Paul Broun introduced the Secure Access to Firearms
Enhancement Act (H.R. 2900), a bill that is similar in effect to the Thune bill (S. 2213) described
below. Representative Timothy Johnson has introduced a bill (H.R. 3543) that has the same title
as H.R. 822 and reflects that bill as introduced. Senator Barbara Boxer introduced the Common
Sense Concealed Firearms Permit Act of 2011 (S. 176), which would facilitate concealed carry
reciprocity arguably by establishing minimum federal eligibility requirements. On the other hand,
elements of those eligibility requirements could be seen as being more restrictive than many
existing state laws—particularly state “shall issue” laws. For example, the bill would require a
concealed carry permit applicant to demonstrate (1) good cause for requesting the permit, and (2)
that he is worthy of the public trust to carry a concealed firearm in public. Such eligibility
requirements are arguably more closely aligned with state “may issue” laws. Senator Mark
Begich introduced the National Right-to-Carry Reciprocity Act of 2012 (S. 2188), a companion
bill to H.R. 822. And, Senator John Thune has introduced the Respecting States’ Rights and
Concealed Carry Reciprocity Act of 2012 (S. 2213). Under S. 2213, a resident of a state that
allows concealed carry without a permit (Alaska, Arizona, Wyoming, and Vermont) would be
127 According to the NRA, this lower average violent crime rate is based upon the FBI’s 2004 Uniform Crime Reports
data for only that year.
128 Violence Policy Center, Concealed Carry Killers, http://www.vpc.org/ccwkillers.htm.
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allowed to do so in another state without a permit of any kind, arguably, as long as the host state
issues concealed carry permits. Under H.R. 822/S. 2188, a resident of one of those states would
have to acquire a permit from either his or another state.
Firearms on Public Lands
The 112th Congress has revisited the issue of firearms carry and use on public lands. As described
above, Senator Coburn sponsored legislation in the 111th Congress that allows individuals to carry
firearms in national parks and wildlife refuges, as long as such firearms carry is in compliance
with state and local laws (P.L. 111-24). On April 17, 2012, the House passed the Sportsmen’s
Heritage Act of 2012 (H.R. 4089) by a vote of 274-146 (Roll no. 164). This bill would require
agencies that manage federal public lands to facilitate access to and use of those lands for the
purposes of recreational fishing, hunting, and shooting with certain exceptions set out in statute
(e.g., national security, public safety, or resource conservation). H.R. 4089 defines federal public
lands broadly and, arguably, would promote allowance for fishing, hunting shooting on most
federal public lands, with certain exceptions for national parks, national monuments managed by
the National Park Service, lands held in trust for Indian tribes, and Outer Continental Shelf lands.
(For a related bill, see also H.R. 3440.) In addition, Section 438 of the FY2013 Interior,
Environment, and Related Agencies Appropriations bill (H.R. 6091), which the House Committee
on Appropriations reported on July 10, 2012, would provide that appropriated funding under the
bill could not be used to prohibit the use of or access to federal land for hunting, fishing, or
recreational shooting.
In addition, H.R. 4089 includes a provision that would prohibit the Environmental Protection
Agency (EPA) from promulgating regulations under the Toxic Substances Control Act to restrict
the lead content of ammunition and fishing tackle. The EPA was previously petitioned to address
this issue on three occasions, but had denied those petitions. The EPA has adopted the position
that it has no legal authority to regulate ammunition, and found that additional federal regulation
of lead in fishing tackle is not warranted. (See also H.R. 1558/S. 838 and H.R. 2834/S. 2066.)
Conversely, Representative Jim McDermott has introduced the Guns-Free National Parks Act of
2012 (H.R. 4063), a bill that would repeal the Coburn provision in P.L. 111-24 noted above.
On a related issue concerning firearms on public lands, Representative Bob Gibbs and Senator
Jim Webb introduced the Recreational Land Self-Defense Act of 2011 (H.R. 1865/S. 1588). This
bill would prohibit the Secretary of the Army from banning individuals from firearms possession,
including an assembled or functional firearm, while traveling through or visiting water resources
development projects (e.g., reservoirs at Corps-operated dams and inland waterways) managed by
the Army Corps of Engineers. It is noteworthy that although Corps staff is often charged with
maintaining order among boaters and other visitors at Corps-managed reservoirs and waterways,
and at adjoining campsites, they are not authorized to be armed, unlike National Park Service
rangers. Under the bill, however, firearms possession and carrying would still be subject to the
state and local laws in effect for the jurisdictions in which the Corps projects are located. In this
way, this bill is similar to the 2009 National Parks legislation (P.L. 111-24). Also, in the last
session on July 14, 2011, the House passed an amendment (H.Amdt. 653) offered by
Representative Paul Gosar to the FY2012 Energy and Water Development and Related Agencies
Appropriations bill (H.R. 2354) that would have prohibited the expenditure of any funding under
that bill to enforce any regulation to restrict firearms possession on corps projects or lands that
exceeded state law.
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Armed Forces Members and Privately Held Firearms Off-Base
On May 18, 2012, the House passed the National Defense Authorization Act for Fiscal Year 2013
(H.R. 4310). This bill includes a provision that would amend a provision enacted under P.L. 111-
383 that prohibits base commanders from collecting information about firearms privately held by
military personnel off-base. The amending provision (§1071) in H.R. 4310 would clarify that a
military mental health professional or commanding officer may inquire about privately owned
firearms if that service member is considered to be a high risk for suicide or causing harm
to others.
Also, during House consideration of H.R. 4310, Representative Phil Gingrey successfully offered
an amendment (H.Amdt. 1124) that expresses a sense of Congress that active duty military
personnel who either live in or are stationed in the District of Columbia (DC) ought to be exempt
from DC firearms laws, which generally require the registration of firearms, both long guns and
handguns, as well as forbid the carrying of any firearm outside of the home. The amendment was
passed by voice vote.
ATF Southwest Border Gun Trafficking Investigations
Under Project Gunrunner, ATF has increased its efforts to staunch the flow of illegal guns from
the United States to Mexico through stepped up enforcement of domestic gun control laws and
cooperation with Mexican authorities. For example, in its FY2013 budget submission to
Congress, ATF presented the following data to demonstrate its overall efforts in Southwest Border
states between FY2005 and FY2011:
• 1,471 cases involving 3,438 defendants recommended for prosecution;
• 2,376 defendants arrested; 2,338 indicted; 1,549 convicted; and 1,070 sentenced
to an average of 102 months in prison;
• 442 cases and 1,467 defendants recommended for prosecution involved gang-
related offenses;
• 752 cases involved trafficking of an estimated 26,129 firearms, of which 244
cases and 8,564 firearms were related to gang-related activities; and
• over 10,500 firearms and 1,407,000 rounds of ammunition were seized as a result
of these investigations.129
To support these efforts, Congress appropriated $1.121 billion for ATF for FY2010. This amount
included about $60 million for Project Gunrunner according to both House and Senate report
language. 130 For FY2011, ATF was appropriated $1.115 billion, but Congress had also
appropriated an additional $37.5 million for ATF in the FY2010/FY2011 Southwest border
supplemental appropriation (P.L. 111-230). For FY2012, Congress appropriated $1.152 billion for
129 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Congressional Budget
Submission, Fiscal Year 2013, February 2012, p. 5.
130 U.S. Congress, House Committee on Appropriations, Commerce, Justice, Science, and Related Agencies
Appropriations Bill, 2010, H.Rept. 111-149, (To accompany H.R. 2847), 111th Cong., June 12, 2009, p. 66; and U.S.
Congress, Senate Committee on Appropriations, Commerce, Justice, Science, and Related Agencies Appropriations
Bill, 2010, S.Rept. 111-34, (To accompany H.R. 2847), 111th Cong., June 25, 2009, p. 68.
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ATF (P.L. 113-55). The agency reports that approximately $68.9 million in direct funding has
been allocated to efforts related to addressing Southwest Border gun trafficking groups.131
Moreover, ATF has trained Mexican law enforcement officials to use its eTrace program, through
which investigators are sometimes able to trace the commercial trail and origin of recovered
firearms and, in the process, identify gun trafficking trends and develop investigative leads. As
described below, however, the interpretation of trace data has generated considerable debate. On
the one hand, several substantive methodological limitations preclude using trace data as a proxy
for the larger population of crime guns in Mexico or the United States. On the other hand, in
conjunction with investigative experience, trace data show that certain firearms—particularly
semi-automatic rifles with the ability to accept a detachable magazine that are greater than .22
caliber—are increasingly being used by the Mexican drug trafficking organizations and other
criminals.
In November 2010, the DOJ Office of the Inspector General (OIG) released an evaluation of
Project Gunrunner.132 While the OIG was somewhat critical of ATF’s eTrace program for yielding
little “usable investigative leads,”133 the OIG recommended that ATF work with DOJ to develop a
reporting requirement for multiple long gun sales134 because Mexican DTOs have demonstrated a
marked preference for military-style firearms capable of accepting high-capacity magazines.135
The OIG also recommended that ATF focus its investigative efforts on more complex criminal
conspiracies involving high-level traffickers rather than on low-level straw purchasers.
In January/February 2011, ATF’s Southwest border efforts to deter cross-border gun trafficking
became controversial following the murder of a U.S. Border Patrol agent in December 2010.
Firearms found at the murder site were linked to a Phoenix, AZ-based Project Gunrunner
investigation known as “Operation Fast and Furious.” This operation was an attempt by ATF’s
Phoenix field office to conduct a more complex investigation. However, allegations of
misconduct on the part of DOJ’s and ATF’s upper-levels of management have been the topic of
four hearings conducted by the House Committee on Oversight and Government Reform. Those
allegations have also dominated the discourse at two DOJ oversight hearings held by the House
Committee on the Judiciary, as well as two hearings held by the Senate Committee on the
Judiciary and its Subcommittee on Crime and Terrorism.
Several Members of Congress, including two House full committee chairs, have written letters to
the Attorney General urging him and the Administration to be more forthcoming about possible
missteps that were taken in the lead-up to Operation Fast and Furious. Besides the oversight
issues, at issue for Congress is how widespread were the gun walking tactics employed? And,
what can be done to prevent such gun walking tactics from being misused again, without unduly
encumbering federal law enforcement?
131 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Office of Public and
Governmental Affairs, March 9, 2012.
132 U.S. Department of Justice, Office of the Inspector General, Review of ATF’s Project Gunrunner, I-2011-001,
November 2010, http://www.justice.gov/oig/reports/ATF/e1101.pdf.
133 Ibid, p. 73.
134 Ibid, p. 40.
135 Ibid, p. 38.
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Another related issue for Congress could be the Administration’s arguably selective release of
ATF firearms trace data. In the past, ATF periodically released data on firearms traces performed
for Mexican authorities. Although substantive methodological limitations preclude using trace
data as a proxy for the larger population of “crime guns” in Mexico or the United States, trace
data have proven to be a useful indicator of trafficking trends and patterns.136 In June 2009, GAO
recommended to the Attorney General that he should direct ATF to regularly update its reporting
on aggregate firearms trace data and trends.137 For the next two years, nonetheless, only limited
and arguably selected amounts of trace data have been released by ATF. On April 26, 2012, ATF
released updated but limited data on firearms trace requests that were processed for
Mexican authorities.
Multiple Rifle Sales Report Proposal138
On December 17, 2010, DOJ and ATF published a “60-day emergency notice of information
collection” in the Federal Register,139 in which they requested that the Office of Management and
Budget (OMB) review and clear a proposed information collection initiative by January 5, 2011,
on an emergency basis under the Paperwork Reduction Act of 1995.140 While ATF was not
granted emergency approval, OMB eventually approved this initiative on July 11, 2011. While
opponents responded quickly and passed a provision to block ATF’s implementation of this
initiative, the blocking provision was not included in ATF’s enacted FY2012 appropriation and
ATF is currently collecting multiple rifle sales reports in Southwest Border states.
Under the initiative, ATF proposed to require federal firearms licensees (FFLs) to report to ATF
whenever they make multiple sales or other dispositions of more than one rifle within five
consecutive business days to an unlicensed person. Such reporting was to be limited to firearms
that are (1) semiautomatic, (2) chambered for ammunition of greater than .22 caliber, and (3)
136 For FY2004 and every fiscal year thereafter, Congress has required ATF to include the following disclaimers in any
published firearms trace reports: (a) Tracing studies conducted by the Bureau of Alcohol, Tobacco, Firearms, and
Explosives are released without adequate disclaimers regarding the limitations of the data; (b) The Bureau of Alcohol,
Tobacco, Firearms, and Explosives shall include in all such data releases, language similar to the following that would
make clear that trace data cannot be used to draw broad conclusions about firearms-related crime: (1) Firearm traces are
designed to assist law enforcement authorities in conducting investigations by tracking the sale and possession of
specific firearms. Law enforcement agencies may request firearms traces for any reason, and those reasons are not
necessarily reported to the Federal Government. Not all firearms used in crime are traced and not all firearms traced are
used in crime. (2) Firearms selected for tracing are not chosen for purposes of determining which types, makes or
models of firearms are used for illicit purposes. The firearms selected do not constitute a random sample and should not
be considered representative of the larger universe of all firearms used by criminals, or any subset of that universe.
Firearms are normally traced to the first retail seller, and sources reported for firearms traced do not necessarily
represent the sources or methods by which firearms in general are acquired for use in crime; See §516 of the FY2012
Commerce, Justice, Science, and Related Agencies (CJS) Appropriations Act, which was enacted as part of the
Consolidated and Further Appropriations Act, 2012 (P.L. 112-55).
137 U.S. Government Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico
Face Planning and Coordination Challenges, GAO-09-709, June 2009, p. 59.
138 This section was coauthored by the report’s author, William J. Krouse, and Vivian S. Chu and Vanessa K. Burrows,
CRS Legislative Attorneys. Questions on case law related to demand letters should be referred to Ms. Chu. Questions
on the Paperwork Reduction Act (PRA) of 1995 should be referred to Ms. Burrows.
139 Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, “60-Day Emergency Notice of
Information Collection Under Review: Report of Multiple Sale or Other Disposition of Certain Rifles,” 75 Federal
Register 79021, December 17, 2010.
140 For further information, see CRS Report R40636, Paperwork Reduction Act (PRA): OMB and Agency
Responsibilities and Burden Estimates, by Curtis W. Copeland and Vanessa K. Burrows.
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capable of accepting a detachable magazine. While details underlying this initiative were not fully
revealed in the Federal Register, on December 20, 2010, acting ATF Director Kenneth Melson
later clarified that the proposed multiple rifle sales reporting requirement would be (1) limited to
FFLs operating in Southwest border states (Texas, New Mexico, Arizona, and California) and (2)
confined initially to a one-year pilot project.141
On February 4, 2011, OMB informed ATF that it would not grant the emergency approval.142
Nevertheless, the notice’s 60-day comment period ran through February 16, 2011. ATF received
12,680 comments, of which ATF estimated that 8,928 comments (70%) were in support of the
program and 3,752 (30%) were opposed.143 Following DOJ and ATF consideration the initial
round of comments, a subsequent 30-day comment period was invoked on April 29, 2010, during
an additional 18,800 pages of comments were considered.144 On July 11, 2011, OMB approved
the information collection initiative for a three-year period (ending July 31, 2014).145
It appears that some of the impetus for the information collection initiative was a
recommendation made by the DOJ OIG in November 2010.146 As described above, in that review
the OIG reported that ATF criminal investigations and firearms trace data indicated that Mexican
drug trafficking organizations had demonstrated a marked preference for long guns (rifles and
shotguns) capable of accepting detachable ammunition feeding devices.147 As a consequence, the
OIG recommended that ATF work with DOJ to explore options for seeking a multiple long sales
reporting requirement.148 In response to the OIG’s recommendation, however, then Acting ATF
Director Melson initially suggested that such a requirement could be beyond the ATF’s and the
DOJ’s authority under current law, but that ATF would “explore the full range of options to seek
information regarding multiple sales of long guns.”149
Notwithstanding this concern about its authority, it appears that DOJ and ATF collectively
concluded that there is sufficient authority under current law for ATF to collect reports on
multiple sales of certain long guns from FFLs. Additional documentation posted on the OMB
website suggested that ATF was proposing the information collection under its authority to issue
“demand letters.”150 Since the enactment of the Gun Control Act (GCA) in 1968, the ATF and its
141 Bureau of Alcohol, Tobacco, Firearms and Explosives, “Acting Director Announces Demand Letters for Multiple
Sales of Specific Long Guns in Four Border States,” News Release, December 20, 2010.
142 Mike Lillis, “House Dems Upset with Delay on Gun Proposal Along Border,” The Hill, February 9, 2011, p. 3.
143 These data were provided to CRS by ATF on July 9, 2012.
144 Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, “Agency Information Collection
Activities; Proposed Collection Comments Requested: Report of Multiple Sale or Other Disposition of Certain Rifles,”
76 Federal Register 24058, April 29, 2011.
145 Office of Management and Budget, Office of Information and Regulatory Affairs, Reviews Completed in the Last
30 Days, DOJ-ATF, Report of Multiple Sale or Other Disposition of Certain Semi-Automatic Rifles, OMB Control
Number: 1140-0100, http://www.reginfo.gov/public/do/PRAMain;jsessionid=
9f8e89cb30d6399089b4c8ac4da993b6c0e60ddbeff2.e34ObxiKbN0Sci0SbhaSa3aLchr0n6jAmljGr5XDqQLvpAe.
146 U.S. Department of Justice, Office of the Inspector General, Evaluation and Inspections Division, Review of ATF’s
Project Gunrunner, I-2011-001, November 2010.
147 Ibid, p. 40.
148 Ibid.
149 Ibid, p. 108.
150 In a sample demand letter on the OMB website, ATF specified that it would be issuing such a letter under 18 U.S.C.
§923(g)(5).
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predecessor agencies at the Department of the Treasury151 have had the authority to issue
“demand letters” to FFLs in order to obtain information from the records that FFLs are required
by law to maintain at their places of business.152 Such letters have been primarily used to
investigate and bring non-compliant FFLs into line and to expedite the acquisition of trace data.153
ATF’s authority to issue demand letters to collect information under certain circumstances has
been challenged and upheld in the federal courts. In 2000, for example, ATF issued demand
letters to 41 FFLs who were deemed uncooperative because they had failed to comply with trace
request responses in a timely manner. In these demand letters, the ATF required the FFLs to
submit information concerning their firearm purchases and sales for the past three years and on a
monthly basis thereafter until told otherwise.154 The U.S. Court of Appeals for the Fourth Circuit
held that 18 U.S.C. Section 926(a), which prohibits the creation of a national registry of firearms,
firearms owners, and transactions, did not directly limit the defendant’s authority to issue demand
letters and was not violated because the ATF narrowly tailored the request to its tracing needs by
issuing the letter to the 0.1% of FFLs nationwide.155
In 1999, the ATF sent out another demand letter to approximately 450 FFLs who had 10 or more
crime guns traced to them with a “time-to-crime” of three years or less. The demand letter
required the FFLs to report the acquisition of secondhand firearms, including identification of the
firearm but not the identities of the person from whom the secondhand firearm was acquired or
the person to whom the firearm was transferred.156 The U.S. Courts of Appeals for the Fourth and
Ninth Circuits generally held that Section 926(a) was not violated157 and that the appropriations
rider that prohibits ATF from spending money in connection with consolidating or centralizing
records was also not violated because a demand letter sent to less than 1% of all FFLs for a
151 ATF was transferred from the Department of the Treasury to the Department of Justice, effective January 2003.
ATF was established in Treasury in 1972. Prior to that, it was a division within the Internal Revenue Service.
152 The original demand letter regulation appears to have been promulgated at the same time the Gun Control Act was
enacted in 1968. See Furnishing Transaction Information, 27 C.F.R. §478.126, issued 33 Federal Register 18555,
18571, December 14, 1968. When the Firearms Owners’ Protection Act (FOPA) was passed in 1986, Congress made
explicit in statute: “Each licenses shall, when required by letter issued by the [Attorney General], and until notified to
the contrary in writing by the [Attorney General], submit on a form specified by the [Attorney General], for periods and
at the times specified in such letter, all record information required to be kept by this chapter or such lesser record
information as the [Attorney General] may specify.” See 18 U.S.C. §923(g)(5)(A).
153 When considering FOPA, it seems that Congress made clear that although they would statutorily authorize the ATF
to collect information pursuant to its demand letter authority, such authority “to request tracing information for dealers
can never be used to establish any centralized or regional registration about §923(g)(5)(A) [in violation of §926(a)]”
and “Congress had no intent to require all law-abiding gun dealers to report all their firearms transactions” to BATF.
Statement of Senator Orrin Hatch, 131 Congressional Record S9129 (July 9, 1985).
154 See RSM, Inc. v. Buckles, 254 F.3d 61,65-66 (4th Cir. 2001).
155 Ibid, p. 68. The court in RSM noted that although FOPA prohibited the creation of a national registry of firearms,
Congress also envisioned some sort of collection of firearms records so long as it was incidental to some other statutory
function specifically delegated to ATF.
156 See Blaustein & Reich, Inc. v. Buckles, 365 F.3d 281 (4th Cir. 2004); J&G Sales Ltd., v. Truscott, 473 F.3d 1043
(9th Cir. 2007), cert. denied, 128 S. Ct. 208 (2007).
157 The Fourth Circuit in Blaustein & Reich noted that §926(a) has no bearing on the regulation that authorizes the use
of demand letters because that section only prohibits the promulgation of rules and regulations prescribed after 1986,
and the regulation on demand letters dates back to 1968. Furthermore, it stated that §926(a) has no bearing on
§923(g)(5)(A) because “the former provision pertains only to ‘rule[s]’ and ‘regulation[s]’ and the latter is a statute, not
a rule or regulation” (modification in the original). Blaustein & Reich, 365 F.3d at 288, 290.
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portion of record information does not constitute consolidating or centralizing record
information.158
Opponents of this initiative argue that (1) ATF does not enjoy sufficient authority to require
multiple rifle sales reports from FFLs; (2) such a reporting requirement would be unprecedented;
and (3) the data collection that would result would essentially constitute an illegal firearms
registry. Although this information collection initiative would require FFLs to provide ATF with
additional documentation on firearms transactions involving rifles, which has not previously been
required, it is not entirely unprecedented. On the other hand, an argument could be made that
ATF’s issuance of demand letters and the existing multiple handgun sales reporting requirement
are precedents for multiple rifle sales reports. In the past, as described above, ATF had
administratively required some FFLs to surrender firearms transaction records temporarily on a
much wider scale, when there were indications of noncompliance or illegal firearms trafficking.
Several Members of Congress, however, disagree with this decision and sent a letter to President
Obama voicing strong opposition to the proposed multiple sales report proposal.159 Those
Members maintain that if Congress authorized multiple handgun sales reporting in statute in
1986, then it is incumbent upon ATF to request that Congress provide it with similar statutory
authority for a multiple rifles sales reporting requirement.160 On February 18, 2011, the House
adopted an amendment by a roll call vote of 277-149 (Roll no. 115) offered by Representatives
Dan Boren and Denny Rehberg to the Full-Year Continuing Appropriations Act, 2011 (H.R. 1)
that would have prohibited ATF from implementing that requirement. While the House passed
H.R. 1, the Senate rejected this bill on March 9, 2011, for budgetary considerations that went well
beyond concerns about this policy rider. Meanwhile, the Department of Defense and Full-Year
Continuing Appropriations Act, 2011 (H.R. 1473; P.L. 112-10) does not include a similar rider.
Senator Jon Tester introduced a bill (S. 570) that would prohibit DOJ from collecting information
on multiple rifle or shotgun sales.
Following OMB’s approval of this information collection initiative, Representative Rehberg
successfully amended the FY2012 Commerce-Justice-Science (CJS) appropriations bill (H.R.
2596) in full committee markup with language that would have prohibited ATF from
implementing it by a vote of 25 to 16 on July 12, 2011. Meanwhile, the Senate folded its FY2012
CJS appropriations bill (S. 1572) into a minibus appropriations bill (H.R. 2112). Senator Dean
Heller offered an amendment (S.Amdt. 843) to H.R. 2112 that would have also blocked
implementation of the reporting requirement, but the Senate did not vote on the Heller
amendment. Language reflecting the Rehberg amendment was not included in the House- and
Senate-passed conference version of the Consolidated and Further Continuing Appropriations
Act, 2012 (H.R. 2112). Hence, it was not included into the bill that was signed into law (P.L. 112-
55) by the President on November 18, 2011. According to ATF, from August 14, 2011, through
October 6, 2011, it collected 502 multiple rifle sales reports involving 1,276 firearms from FFLs
in Southwest Border states.161
158 Blaustein & Reich, 365 F.3d at 289.
159 Congressional Documents and Publications, “Rehberg Leads Bipartisan Letter to ATF Questioning New Firearm
Dealer Regulations,” Representative Denny Rehberg (R-MT) News Release, December 23, 2010.
160 Ibid.
161 These statistics are available at http://www.atf.gov/statistics/.
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In addition, complaints were filed in federal district courts challenging ATF’s ability to collect
such information under its demand letter authority (18 U.S.C. §922(g)(5)(A)).162 However, in
National Shooting Sports Foundation, Inc. v. Jones, the United States District Court for the
District of Columbia (DC District Court) held that it was within ATF’s demand letter authority to
collect information from FFLs on the multiple sales of rifles.163 The DC District Court found that
ATF’s demand letter to FFLs on Southwest border was still limited in scope, even though it was
“somewhat broader” than past demand letters that have been upheld by the federal courts.164
Nevertheless, opponents have renewed their efforts to end the multiple rifle sales reporting
requirement during the FY2013 appropriations cycle. On April 26, 2012, Representative Rehberg
successfully offered an amendment during full committee markup of the CJS appropriations bill
(H.R. 5326) with language that would prohibit ATF from collecting multiple long gun sales
reports. Representative Justin Amash and Senator Jon Tester have introduced similar proposals
(H.R. 3814/S. 570)
According to ATF, in the first nine months of the initiative, ATF has referred over 115 defendants
to the U.S. Attorneys for federal prosecution in 29 criminal cases in which leads were generated
from multiple rifle sales reports.165 As part of these cases, ATF has taken about 168 firearms into
evidence. As of May 22, 2012, approximately 1,045 FFLs had submitted 3,500 multiple rifle sales
reports, encompassing around 8,200 firearms.166 ATF estimates that the time burden on each FFL
was about one hour, seven minutes, costing an estimated $12 per year/per FFL.167
Operation Fast and Furious
In January/February 2011, ATF and Project Gunrunner came under congressional scrutiny for a
Phoenix, AZ-based investigation known as Operation Fast and Furious.168 ATF whistleblowers
have alleged that suspected straw purchasers were allowed to amass relatively large quantities of
firearms as part of long-term gun trafficking investigations.169 As a consequence, some of these
firearms are alleged to have “walked,” meaning that they were trafficked to gunrunners and other
criminals before ATF moved to arrest the suspects and seize all of their contraband firearms.170
Some of these firearms were smuggled into Mexico.171 Two of these firearms—AK-47 variant
162 Complaints were filed in the United States District Court for the District of Columbia, the United States District
Court for the District of New Mexico, and the United States District Court for the Western District of Texas. See Nat’l
Shooting Sports Foundation, Inc. v. Jones, 2011 U.S. Dist. LEXIS 101320 (D.D.C. 2011); Ron Peterson Firearms LLC
v. Melson, No. 1:11-cv-678, (D.N.M. filed August 3, 2011); 10 Ring Precision, Inc. v. Melson, No. 5:11-cv-663 (W.D.
Tex. filed August 5, 2011).
163 Nat’l Shooting Sports Foundation, Inc. v. Jones, 2011 U.S. Dist. LEXIS 101320 (D.D.C. 2011);
164 Ibid. at *23.
165 These data were provided to CRS by ATF on July 9, 2012.
166 Ibid.
167 Ibid.
168 James V. Grimaldi and Sari Horwitz, “ATF Probe Strategy Is Questioned,” Washington Post, February 2, 2011, p.
A04.
169 Ibid.
170 Ibid.
171 John Solomon, David Heath, and Gordon Witkin, “ATF Let Hundreds of U.S. Weapons Fall Into Hands of
Suspected Mexican Gunrunners: Whistleblower Says Agents Strongly Objected to Risky Strategy,” Center for Public
Integrity.
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rifles—were reportedly found at the scene of a shootout near the U.S.-Mexico border where U.S.
Border Patrol Agent Brian Terry was shot to death.172 Press accounts assert that ATF has
acknowledged that as many as 195 firearms that were purchased by persons under ATF
investigation as part of Operation Fast and Furious were recovered in Mexico.173 Questions,
moreover, have been raised about whether a firearm—an AK-47 variant handgun—that was
reportedly used to murder U.S. ICE Special Agent Jamie Zapata and wound Special Agent Victor
Avila in Mexico on February 15, 2011, was initially trafficked by a subject of a Houston, TX-
based ATF Project Gunrunner investigation.174
As more information emerged, U.S. and Mexican policymakers expressed their dismay over the
circumstances surrounding Operation Fast and Furious.175 Taking the lead, Senator Charles E.
Grassley, the ranking minority Member on the Senate Judiciary Committee, wrote several letters
to then ATF Acting Director Kenneth E. Melson and U.S. Attorney General Eric H. Holder
voicing his concerns about Operation Fast and Furious and the whistleblower allegations that
were brought to him. For example, on January 27, 2011, Senator Grassley wrote Acting Director
Melson and requested a briefing on Project Gunrunner. He noted that:
Members of the Judiciary Committee have received numerous allegations that the ATF
sanctioned the sale of hundreds of assault weapons to suspected straw purchasers, who then
allegedly transported these weapons through the southwestern border area and into
Mexico.176
On February 4, 2011, Assistant Attorney General Ronald Weich, DOJ Office of Legislative
Affairs, responded with a letter that included the following statement:
At the outset, the allegation described in your January 27, letter—that ATF “sanctioned” or
otherwise knowingly allowed the sale of assault weapons to a straw purchaser who then
transported them into Mexico—is false. ATF makes every effort to interdict weapons that
have been purchased illegally and prevent their transportation to Mexico.177
Weich went on to say:
We also want to protect investigations and the law enforcement personnel who directly
conduct them from inappropriate political influence. For this reason, we respectfully request
that Committee staff not contact law enforcement personnel seeking information about
172 Ibid.
173 Kim Murphy and Ken Ellingwood, “Mexico Demands Answers on Guns,” Chicago Tribune, March 11, 2011, p. 13.
174 Ibid.
175 Ken Ellingwood, “Mexico: U.S. Never Said Guns Came Across; Washington Didn’t Reveal Tracked Arms Were
Passing the Border, Agency Asserts,” Los Angeles Times, March 12, 2011.
176 Letter from Senator Charles E. Grassley, Ranking Minority Member of the Committee on the Judiciary, to Acting
Director Kenneth E. Melson, Bureau of Alcohol, Tobacco, Firearms, and Explosives, regarding Project Gunrunner and
Whistleblower Allegations, January 27, 2011, http://www.grassley.senate.gov/about/upload/Judiciary-01-27-11-letter-
to-ATF-SW-Border-strategy.pdf.
177 Letter from Ronald Weich, Assistant Attorney General, to Senator Charles E. Grassley, Ranking Minority Member,
Committee on the Judiciary, regarding January 27, 2011 Project Gunrunner and Whistleblower Allegations letter,
February 4, 2011, http://www.grassley.senate.gov/about/upload/Judiciary-ATF-02-04-11-letter-from-DOJ-deny-
allegations.pdf.
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pending criminal investigations, including the investigation into the death of Customs and
Border Patrol Agent Brian Terry.178
On February 9, 2011, Senator Grassley wrote Attorney General Holder a letter in which he
presented documents that were provided to him by whistleblowers. They purported that a
federally licensed gun dealer, who was cooperating with ATF, was encouraged by ATF and the
Arizona U.S. Attorney’s Office to continue transferring firearms to a suspected straw purchaser,
despite misgivings regarding civil and criminal liabilities that could follow from such transfers
for whom, he—the gun dealer—could possibly be found liable.179 As noted above, two of those
firearms were found at the murder scene of Agent Terry. Both firearms were AK-47 variants (with
serial numbers 1983AH3977 and 1971CZ3755).180 The accompanying documentation also
showed that ATF had entered these firearms into its National Tracing Center’s suspect gun
database.181
In response to the previous letter, Senator Grassley observed the following:
Unfortunately, the Justice Department’s letter suggested that my attempts to seek
information about these matters might be politically motivated. I understand the Department
needs to “protect … law enforcement personnel … from inappropriate political influence.”
However, there is a difference between inappropriate political influence and appropriately
holding officials accountable to the American people.182
These whistleblower allegations and related letter exchanges set off a chain of events that
culminated in the House approving a resolution that cited Attorney General with contempt,
marking the first instance that Congress has ever thusly cited a sitting officer of a presidential
cabinet. Described below are the major developments that led to this precedent-setting vote.
As allegations of gun walking mounted, on March 4, 2011, Attorney General Holder instructed
the DOJ OIG to review ATF’s gun trafficking investigations.183 Dissatisfied with DOJ’s response
to date, on March 8, 2011, Senator Grassley called for an independent review of the related
allegations because the DOJ OIG had made recommendations about Southwest border gun
trafficking investigations in its November 2011 audit that might possibly influence its future
findings.184 On March 9, 2011, Representative Lamar Smith, chairman of the House Judiciary
Committee, wrote the Attorney General and commended him for tasking the OIG with a review
of ATF’s firearms trafficking investigatory methods. In addition, Representative Smith asked DOJ
to respond to the following questions by March 18, 2011:
178 Ibid.
179 Letter from Senator Charles E. Grassley to Attorney General Eric H. Holder, Jr., regarding ATF Whistleblower
Allegations and the Sale of Assault Weapons Found at the Scene of the Firefight in which Border Patrol Agent Brian
Terry Was Slain, February 9, 2011, http://www.grassley.senate.gov/about/upload/Judiciary-02-09-11-Letter-to-Holder-
notifying-of-ATF-issues.pdf.
180 Ibid.
181 Ibid.
182 Ibid.
183 Pete Yost, “Justice IG to Look into Anti-Gun Efforts on Border,” Associated Press Online, March 4, 2011.
184 James V. Grimaldi, “ATF Faces Federal Review Over Tactics to Foil Gunrunning Rings,” Washington Post, March
10, 2011, p. A04.
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• “How many weapons have been allowed to pass to Mexico under the program
known as “Fast and Furious”? Is the program still active?
• Who at ATF Headquarters approved the program?
• Who in the U.S. Attorney’s Office for the District of Arizona approved the
program? On what authority did the office approve the program?
• Did ATF or the U.S. Attorney’s Office in Phoenix coordinate the “Fast and
Furious” program with the Department of Justice? Did the department approve
the strategy?
• What changes or improvements has ATF made to its eTrace program and its
ability to use intelligence to target gun trafficking organizations in general?
• Does ATF view the “Fast and Furious” program as a success?”
DOJ responded to Representative Smith to say that the matter was under investigation.
On March 31, 2011, Representative Darrell Issa, chairman of the Committee on Oversight and
Government Reform, issued a subpoena, the first of two, to DOJ and ATF for documents related
to Project Gunrunner following several unanswered requests for information related to ATF’s
anti-gun trafficking efforts on the Southwest Border.185
On May 3, 2011, Representative Issa questioned Attorney General Holder about Operation Fast
and Furious at a House Committee on the Judiciary hearing on DOJ oversight. The Attorney
General testified that he had only heard about Operation Fast and Furious “over the last few
weeks.” In turn, on May 4, 2011, Representative Issa released DOJ documents that arguably
supported allegations that DOJ officials knew more about Operation Fast and Furious than they
had previously admitted. These documents included the following:
• A January 8, 2010 memorandum from the ATF Phoenix Field Division Office on
Operation Fast and Furious noting the involvement of U.S. Attorney for the
District of Arizona Dennis Burke, who was in “full agreement with the current
investigative strategy.” The memo states that “currently our strategy is to allow
the transfer of firearms to continue to take place … in order to further the
investigation and allow for the identification of additional co-conspirators who
would continue to operate and illegally traffic firearms to Mexican [Drug
Trafficking Organizations].”
• A March 10, 2010, memorandum from DOJ Criminal Division Assistant Attorney
General Lanny Breuer that authorized a wiretap application and arguably
revealed a high level of participation in and knowledge of Operation Fast and
Furious.
• A March 10, 2011 email referencing a directive from the Deputy Attorney
General ordering law enforcement agents not to “design or conduct undercover
operations which include guns crossing the border.” The email clarifies that this
includes “cases where we are working with the Mexican government to have
them follow the vehicles once they are in Mexico.”186
185 Press Release, “Chairman Issa Subpoenas ATF for ‘Project Gunrunner’ Documents,” April 1, 2011.
186 Press Release, “What Attorney General Holder Won’t Tell on Controversial Gun Operation, Documents Do,” May
(continued...)
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On June 13, 2011, the Committee on Oversight and Government Reform held a hearing on the
department’s legal obligation to respond to congressional subpoena.187 On June 14, 2011,
Representative Issa and Senator Grassley issued a joint staff report on Operation Fast and
Furious,188 which chronicled that ATF line supervisors became increasingly concerned when they
witnessed hundreds of firearms being illegally transferred during surveillance operations, but they
were reportedly directed not to arrest the suspects and interdict those firearms. Those agents
contend that this was a questionable departure from past investigative practices. On June 15,
2011, the House Committee on Oversight and Government Reform held a hearing on these
matters. Representative Issa expressed his concern that DOJ had not been entirely cooperative
with his committee’s efforts to investigate how some of those firearms found their way to crime
scenes in Mexico and on the Southwest border.189
Following the hearing, on June 29, 2011, Representative Elijah E. Cummings, the committee’s
ranking minority Member, issued a report and held a forum during which the minority explored
issues raised by some of those same ATF line supervisors, who had suggested during the House
hearing that the penalties for firearm straw purchases under current law are arguably not stringent
enough. The minority also discussed other gun control proposals related to gun shows,
semiautomatic assault weapons, sniper rifles, and additional penalties for gun trafficking
offenses.190
On July 26, 2011, the House Committee on Oversight and Government Reform held a follow-up
hearing entitled “Operation Fast and Furious: The Other Side of the Border.” As preceded the
earlier hearing, a joint staff report was issued.191 This report found that ATF and DOJ leadership
had not informed its own Attaché serving in Mexico City, the U.S. Ambassador to Mexico, nor
the Mexican authorities about the investigation.192 As recovered firearms in Mexico increased, the
ATF Attaché in Mexico City became more alarmed and contacted his superiors at ATF
headquarters to express his grave concerns about the implications that this increased flow of
(...continued)
4, 2011.
187 U.S. Congress, House Committee on Oversight and Government Reform, Obstruction of Justice: Does the Justice
Department Have to Respond to a Lawfully Issued and Valid Congressional Subpoena, 112th Cong., 1st sess., June 13,
2012, Serial No. 112-61 (Washington: GPO, 2012).
188 U.S. Congress, Joint Staff Report, Department of Justice’s Operation Fast and Furious: Accounts of ATF Agents,
prepared for Representative Darrell E. Issa, Chairman, United States House of Representatives, Committee on
Oversight and Government Reform, and Senator Charles E. Grassley, Ranking Member, United States Senate,
Committee on the Judiciary, 112th Cong., 1st sess., June 14, 2011, http://oversight.house.gov/images/stories/Reports/
ATF_Report.pdf.
189 U.S. Congress, House Committee on Oversight and Government Reform, Operation Fast and Furious: Reckless
Decisions, Tragic Outcomes, 112th Cong., 1st sess., June 15, 2012, Serial No. 112-64 (Washington: GPO, 2012).
190 U.S. Congress, House Oversight and Government Reform Committee, Minority Staff Report, Outgunned: Law
Enforcement Agents Warn Congress They Lack Adequate Tools to Counter Illegal Firearms Trafficking, 112th Cong.,
1st sess., June 30, 2011, http://democrats.oversight.house.gov/images/stories/
OUTGUNNED%20Firearms%20Trafficking%20Report%20-%20Final.pdf. On July 15, 2011, Representative Carolyn
B. Maloney introduced the Stop Gun Trafficking and Strengthen Law Enforcement Act of 2011 (H.R. 2554). Original
cosponsors included Representative Cummings and Representative Carolyn McCarthy.
191 U.S. Congress, Joint Staff Report, Department of Justice’s Operation Fast and Furious: Fueling Cartel Violence,
prepared for Representative Darrell E. Issa, Chairman, United States House of Representatives, Committee on
Oversight and Government Reform and Senator Charles E. Grassley, Ranking Member, United States Senate,
Committee on the Judiciary, 112th Cong., 1st sess., July 26, 2011.
192 Ibid, p. 27.
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illegal firearms could have for both Mexican and U.S. law enforcement officers as well as the
public on both sides of the border. He and others were told by both ATF and DOJ officials that the
investigation was under control and was having positive results.193 As noted above, however,
Border Patrol Agent Terry was killed in a firefight in December 2010, and firearms connected to
Operation Fast and Furious were found at the site of that firefight.
In July 2011, the Washington Post reported that Operation Fast and Furious ultimately involved
2,020 firearms, of which 227 had been recovered in Mexico and 363 had been recovered in the
United States.194 The investigation resulted in indictments of 20 individuals on multiple counts of
straw purchasing and other federal offenses.195 While ATF officials maintained that the
investigation had yet to be concluded and additional arrests of “high-level traffickers” might be
forthcoming,196 no additional arrests have been made.
As called for originally by Senator Grassley, the House Committee on Appropriations included
report language with the Commerce-Justice-Science (CJS) appropriations bill (H.R. 2596;
H.Rept. 112-169) that recommended the appointment of “an outside, independent investigator,”
who would be charged with conducting “a thorough investigation of the allegations against ATF
with respect to Operation Fast and Furious and policies guiding this and similar operations.” In
addition, the House committee called on both DOJ and ATF to cooperate fully with related
oversight investigations, whether they were conducted by congressional committees, the DOJ
OIG, or an independent investigator. Conversely, the Senate Appropriations Committee included
report language with the CJS appropriations bill (S. 1572; S.Rept. 112-78) that stated that the
OIG would fulfill its oversight duties, and that Operation Fast and Furious was but a small part of
ATF’s Southwest border operations, which should not detract from the agency’s efforts to protect
Americans from illegal gun trafficking and other forms of cross-border crime. Conference report
language accompanying the Consolidated and Further Appropriations Act, 2012 (H.R. 2112; P.L.
112-55) does not call for an independent investigator, but it does call on both DOJ and ATF to
cooperate fully with congressional oversight efforts (H.Rept. 112-284, p. 240).
On August 30, 2011, among the fallout from Operation Fast and Furious, U.S. Attorney for the
District of Arizona Dennis K. Burke resigned197 and ATF Acting Director Melson was reassigned
to the DOJ Office of Legal Policy.198 In Melson’s place, U.S. Attorney for the District of
Minnesota B. Todd Jones was appointed interim acting ATF Director.199 However, Jones is not
President Obama’s nominee for ATF Director.200 The President’s nominee remains Andrew
Traver, the ATF Chicago Special Agent in Charge.201
193 Ibid.
194 Sari Horwitz, “A Gunrunning Sting Gone Fatally Wrong: Operation Meant to Seize Firearms Bound for Cartels
Allows Weapons into the Streets,” Washington Post, July 26, 2011, p. A1.
195 Ibid.
196 Ibid.
197 Jerry Markon and Sari Horwitz, “ATF Head Removed Amid Furor Over Guns,” Washington Post, August 31, 2011,
p. A01.
198 U.S. Department of Justice, Department of Justice Announces New Acting Director of ATF and Senior Advisor in
the Office of Legal Policy, press release, August 30, 2011.
199 Ibid.
200 Sari Horwitz, “Trying to Steady a Shaken ATF: Acting Director Hopes to Rebuild Morale After Fury Over Tactics
in Gun-Trafficking Operation,” Washington Post, September 2, 2011, p. A16.
201 Section 504 of the USA PATRIOT Improvement and Reauthorization Act of 2005 (P.L. 109-177; March 9, 2006;
(continued...)
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On September 23, 2011, Representative Smith sent Attorney General Holder a second letter
expressing his continuing concerns about Operation Fast and Furious, as well as the appointment
of an acting ATF director who would be focused on both his duties as ATF acting director and
U.S. Attorney for the District of Minnesota. He noted a provision in the FY2010 Omnibus
Appropriations Act (P.L. 111-117) requires each U.S. Attorney to reside in the district in which he
serves, and questioned how Jones would be able to serve simultaneously in Minnesota as U.S.
Attorney and Washington as ATF acting director. As a follow-up to his March 9 letter,
Representative Smith asked DOJ to respond to the following questions by October 21, 2011:
• “Is the Department considering additional staff changes at ATF in response to
Fast and Furious?
• How does the Department justify accepting the resignation of the U.S. Attorney
while the ATF’s managers in charge of Fast and Furious appear to have faced no
discipline?
• What role did the Department play in oversight of Operation Fast and Furious?
• Does Todd Jones intend to maintain his residence in Minnesota while serving as
acting director of ATF?
• Is the Department confident that the ATF can fulfill its mission with a part-time
director who is based in Minnesota?
• Have you issued a waiver of the residency requirement for Todd Jones under 28
U.S.C. §545? If so, for what period does the waiver extend?”
In addition, Representative Smith reiterated his concern about how the department had responded
to congressional inquiries about Operation Fast and Furious. He noted for the record that the
department had only answered one out of six questions he submitted in his March 9 letter. He
raised concerns about what appeared to be deliberate attempts by the department to obscure the
facts about Operation Fast and Furious. As an example, Representative Smith raised the
department’s description of the ballistic tests on the two semiautomatic rifles found at the site of
(...continued)
120 Stat. 247) requires the ATF Director to be appointed by the President with the advice and consent of the Senate.
The position of ATF Director, however, has not been filled permanently since August 2006, after ATF Director Carl J.
Truscott resigned due to preliminary findings by the DOJ OIG that he had engaged in questionable expenditures and
management practices while serving as ATF Director. In September 2006, President George W. Bush appointed the
U.S. Attorney for the District of Boston, Michael J. Sullivan, acting ATF Director. Sullivan served in both posts
concurrently. In February 2008, his confirmation as ATF Director was blocked in the Senate, when several Senators
voiced their concern about ATF’s “overly aggressive” enforcement of gun laws and the nominee’s views on such
matters. Sullivan resigned as acting ATF Director on January 20, 2009. Ronnie Carter served as acting Director until
April 2009, when Kenneth Melson was appointed acting Director. In November 2009, Melson was appointed acting
Deputy Director, because the 210-day statutory limit on the acting Director’s tenure had expired. On November 17,
2010, the Obama Administration nominated Andrew Traver, the ATF Special Agent in Charge in Chicago, to be ATF
Director. Because the Senate did not act on this nomination in the 111th Congress, Traver was renominated by the
Administration on January 5, 2011. See U.S. Department of Justice, Office of the Inspector General, Oversight and
Review Division, Report of Investigation Concerning Alleged Mismanagement and Misconduct by Carl J. Truscott,
Former Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (October 2006). Jonathan Saltzman,
“Sullivan ATF Confirmation Blocked; La. Senator Objects to Gun-License Stance,” Boston Globe, February 14, 2008,
p. B1. Jonathan Saltzman, “US Attorney To Resign Sooner Than Expected: List of Finalists for Post Not Yet Sent To
Obama,” Boston Globe, April 16, 2009, p. 2. Andrew Ramanos, “Senate Returns ATF Nomination to White House,”
Main Justice: Politics, Policy and the Law, December 23, 2010. The White House, Office of the Press Secretary,
“Presidential Nominations Sent to the Senate,” January 5, 2011.
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Border Patrol Agent Terry’s murder. The department apparently stated that the tests showed that
neither firearm was used to fire the fatal shot; however, Representative Smith countered that the
tests were inconclusive one way or another. Furthermore, Representative Smith raised an issue
about an audio recording on which a federal agent reportedly mentioned a third firearm linked to
Operation Fast and Furious that had been found at Agent Terry’s murder scene.
On October 12, 2011, the Committee on Oversight and Government Reform issued a second
subpoena to DOJ for all departmental communications and documents “referring or related to
Operation Fast and Furious, the Jacob Chambers Case, or any Organized Crime Drug
Enforcement Task Force (OCDETF) firearms trafficking cases based in Phoenix, Arizona.”202
According to a press release, Representative Issa said, “The documents this subpoena demands
will provide answers to questions that Justice officials have tried to avoid [answering] since this
investigation began eight months ago.”203 On October 16, 2011, Representative Issa and Sharyl
Attkisson—the CBS correspondent who broke the Operation Fast and Furious story
nationally204—appeared on Face the Nation with Bob Schieffer.205 Both Representative Issa and
Ms. Attkisson discussed the possibility that a third firearm had been found at Agent Terry’s
murder scene. According to Ms. Attkisson, audio recordings had surfaced on which the ATF
supervisory special agent in charge of Operation Fast and Furious made mention of a third
firearm, an SKS rifle, that was possibly linked to a confidential informant working for either the
FBI or DEA.206 Representative Cummings has called on the Committee on Oversight and
Government Reform to hear testimony again from former ATF Acting Director Melson as a
means of determining who is responsible for the conduct of this controversial gun trafficking
operation.207
On October 18, 2011, Senator John Cornyn offered an amendment (S.Amdt. 775) to the FY2012
minibus appropriations bill (H.R. 2112), which included the Senate-reported FY2012 CJS
appropriations bill (S. 1572), to prohibit the expenditure of any funding provided under that bill,
if enacted, to conduct criminal investigations that allowed firearms to be transferred knowingly to
agents of drug cartels and U.S. law enforcement was unable to continuously monitor or control
such firearms at all times. This amendment passed 99-0 (Record Vote Number: 167). On
November 1, 2011, the Senate passed H.R. 2112. The conference report version of H.R. 2112
(H.Rept. 112-284), which both the House and Senate passed and the President signed into law
(P.L. 112-55), includes a modified version of the Senate-passed Cornyn amendment. The
modified provision (§219) prohibits the expenditure of any funding provided under P.L. 112-55 to
be used by a federal law enforcement officer to transfer an operable firearm to a person suspected
202 U.S. House of Representatives, Committee on Oversight and Government Reform, “Oversight Committee
Subpoenas Attorney General for ‘Operation Fast and Furious’ Communications and Documents,” Press Release,
October 18, 2011, http://oversight.house.gov/index.php?option=com_content&view=article&id=1479:oversight-
committee-subpoenas-attorney-general-for-operation-fast-and-furious-communications-and-documents-&catid=
22:releasesstatements.
203 Ibid.
204 Katie Pavlich noted in her book on Operation Fast and Furious that two bloggers, Mike Vanderboegh and David
Codrea, worked together and vetted information about the operation through a network of ATF insiders, who contacted
them independently. Through their efforts, “the story” moved from “blogs” to “mainstream media.” See Katie Pavlich,
Fast and Furious: Barack Obama’s Bloodiest Scandal and Its Shameless Cover-up, 2012, p. 75.
205 CBS News, “Face the Nation” Transcript: October 15, 2011, http://www.cbsnews.com/8301-3460_162-20121072/
face-the-nation-transcript-october-16-2011/.
206 Ibid.
207 “Cummings Responds to Issa’s Accusations of FBI Evidence Tampering,” States News Service, October 17, 2011.
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or known to be connected to a drug cartel without that firearm being continuously monitored or
controlled.
On November 1, 2011, Lanny Breuer, the Assistant Attorney General for DOJ’s Criminal
Division, testified before the Senate Judiciary’s Crime and Terrorism Subcommittee at a hearing
on International Organized Crime.208 During the hearing, Senator Grassley acknowledged a
statement made by Breuer on the previous day regarding a 2006-2007 Phoenix-based ATF
investigation known as Operation Wide Receiver. With regard to that operation, Breuer said he
first became aware of the “gun walking” strategy in April 2010, and it concerned him. However,
he did not take his concerns about “gun walking” directly to the Attorney General. Instead, his
subordinate spoke to “ATF leadership” about his concerns. Breuer testified that about 350
firearms were allowed to “walk” as part of Operation Wide Receiver, but he failed to make
possible connections between Operation Wide Receiver and Operation Fast and Furious with
regard to “gun walking.” Nevertheless, in his October 31, 2011, statement, Breuer characterized
“gun walking” as “unacceptable and misguided.”209 Breuer also testified that over the past nearly
five-year period, ATF had processed 94,000 firearm trace requests for Mexican authorities. Of
those firearms, 64,000 were “traced” to the United States. In addition, on November 4, 2011, the
Huffington Post reported that nearly 700 firearms linked to Operation Fast and Furious had been
recovered: 276 in Mexico and 389 in the United States, according to ATF data through October
20, 2011.210
On November 8, 2011, the Senate Committee on the Judiciary held a DOJ oversight hearing, at
which Senators Grassley and Cornyn questioned Attorney General Holder at length about
Operation Fast and Furious. The Attorney General conceded that a February 4, 2011, letter from
DOJ to congressional investigators contained “inaccurate” information regarding the depth of
knowledge that departmental officials had of ATF’s use of the “gun walking” tactic.211 In addition,
the Attorney General qualified Breuer’s earlier statement about 64,000 firearms recovered in
Mexico having been “traced” back to the United States. As described below, only about a quarter
of the 94,000 firearms submitted for tracing were probably ever fully traced back to the first U.S.
retail owner of record. Consequently, the Attorney General stated that 64,000 of those firearms
were “sourced” to the United States, in that they were either originally manufactured in, or
imported into, the United States. However, no additional information was given about the 25,000
or so firearms that were eventually fully traced back to the United States, such as time-to-
recovery or most frequently traced firearms (by type, make, model, and caliber).
On December 2, 2011, Deputy Attorney General James M. Cole wrote both Representative Issa
and Senator Grassley and again conceded that the February 4 letter to Senator Grassley from
Assistant Attorney General Weich included inaccuracies arguably based upon responses that the
208 Combating International Organized Crime: Evaluating Current Authorities, Tools, and Resources: Hearing before
the Senate Committee on the Judiciary, Subcommittee on Crime and Terrorism, 112th Congress, November 1, 2011
(CQ Congressional Transcripts).
209 U.S. Department of Justice, Assistant Attorney General Lanny Breuer Issues Statement On ‘Operation Wide
Receiver’, October 31, 2011.
210 Pete Yost, “Fast and Furious-Like ‘Gun-Walking’ Probe Mentioned In 2007 Bush Administration Memo,”
Huffington Post, November 4, 2011.
211 Jerry Jarkon, “Holder Amends remarks On Gun Sting: Attorney General Heard of ‘Fast and Furious’ Earlier Than
He First Said,” Washington Post, November 9, 2011, p. A2.
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department had initially received from the ATF leadership and the U.S. Attorney’s Office in
Arizona.212 DOJ formally withdrew that letter.213
On December 8, 2011, the House Committee on the Judiciary held a hearing on DOJ oversight
and heard testimony from Attorney General Holder. However, Operation Fast and Furious was
clearly the predominant issue before the committee.214 More specifically, at issue was who within
DOJ management had knowledge of and, by extension, responsibility for the operation. For
example, at a May 3, 2011, DOJ oversight hearing, Attorney General Holder testified that he had
only heard about Operation Fast and Furious “over the last few weeks.”215 On the other hand,
internal DOJ documents obtained by the House Oversight and Government Reform Committee
suggest that several high-level managers within the department were aware of, and possibly
helped direct, ATF’s Operation Fast and Furious.216 There were also emails between William
Newell, the then-ATF Phoenix Special Agent in Charge, and at least one staff member of the
National Security Council in which “updates” on Operation Fast and Furious were provided.217
On January 31, 2012, Chairman Smith sent the Attorney General a third letter, in which he
admonished DOJ’s stalling tactics and selective releases of materials related to the operation. In
the letter, he surmised that “It is past time for the Department to provide a full and honest
accounting of Operation Fast and Furious with details about its conception, approval, and who
knew what when.”218
On February 2, 2012, the House Oversight and Government Reform Committee held its fourth
hearing related to Operation Fast and Furious, during which Attorney General Holder was
questioned at length about possible false statements, and other questionable responses to repeated
congressional inquiries, that were made with regard to this operation by the department.219 As a
counterpoint, Representative Cummings noted that his staff had prepared a report that
documented that “gun walking” operations had been conducted by the ATF and U.S. Attorney’s
Arizona Office as part of several Southwest border gun trafficking investigations.220 In addition to
212 Letter from Deputy Attorney General James M. Cole to Representative Darrell E. Issa, Chairman of the Committee
on Oversight and Government Reform, and Senator Charles E. Grassley, Ranking Minority Member, Committee on the
Judiciary, regarding Drafting of DOJ February 4, 2011 Letter to Senator Grassley, December 2, 2011,
http://www.grassley.senate.gov/judiciary/upload/ATF-12-02-11-Cover-letter-from-Cole-on-Document-Drop.pdf.
213 Ibid.
214 Oversight of the Department of Justice: Hearing before the House Committee on the Judiciary, 112th Congress,
December 8, 2011 (CQ Congressional Transcripts).
215 Oversight Hearing on the United States Department of Justice: Hearing before the House Committee on the
Judiciary, 112th Congress, May 3, 2011 (CQ Congressional Transcripts).
216 Press release, “Issa to Holder: ‘You Own Fast and Furious,” October 10, 2011, http://oversight.house.gov/
index.php?option=com_content&task=view&id=1474&Itemid=29. See also, Jackie Hicken, “All Eyes on Holder as
Memos Suggest He Knew More About Guns Being Walked to Mexican Drug Cartels,” Desert Morning News, October
4, 2011.
217 Sharyl Attkisson, “ATF Investigation Expands to White House Staffers,” CBS News, September 9, 2011.
218 Letter from Representative Lamar Smith, Chairman of the House Committee on the Judiciary, to Attorney General
Eric H. Holder, Jr., regarding interviews with senior Department of Justice staff about Operation Fast and Furious,
January 31, 2012, http://judiciary.house.gov/news/pdfs/01312012%20Letter%20to%20ATG.pdf.
219 U.S. Congress, House Committee on Oversight and Government Reform, Operation Fast and Furious:
Management Failures at the Department of Justice, 112th Cong., 2nd sess., February 2, 2012, Serial No. 112-103
(Washington: GPO, 2012).
220 U.S. Congress, Fatally Flawed: Five Years of Gunwalking in Arizona, House Committee on Oversight and
Government Reform, Minority Staff Report, 112th Cong., 2nd Sess., January 2012, http://www.scribd.com/doc/
(continued...)
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Wide Receiver (2006-2007), this report describes two other Phoenix-based ATF investigations
that involved gun walking: Hernandez (2007) and Medrano (2008). Representative Cummings
also argued that former Attorney General Michael Mukasey ought to be called before the
committee to testify, because the gun-walking tactics had originated during the Administration of
President George W. Bush.
Also of note, during the hearing, Representative Stephen Lynch questioned the Attorney General
about DOJ oversight of several sensitive investigative techniques, including gun walking, leading
him to observe the following:
The problem here is that this tactic actually authorized—it puts law enforcement, Federal law
enforcement in a position of authorizing criminal activity. They become complicit in it.
That’s very troubling, especially when it results in the death of a very brave, courageous
agent or to innocent American civilian citizens.
And what is especially troubling is that I believe that you didn’t know about it. I believe that
you didn’t know about it. But that’s not a comfort to me. It is unbelievable that either the
Phoenix field office or the Boston office of the FBI can authorize criminal activity,221 not
just a mere tactic, but a whole strategy of using that outside of the law, and then having
innocent civilians killed.
So I actually think that one of the solutions might be for Congress to pass a law that says, if
there are those limited occasions where we are going to authorize criminal activity to go on
in our society under the cover of law enforcement’s authority, then either yourself, as the
Attorney General, or the director of the FBI or the head of the ATF has to sign off on it
because here, everyone escaped responsibility because of plausible deniability. They can say,
I didn’t know about it.222
Attorney General Holder responded:
I think that’s a legitimate question. I think we don’t want to go too far in this sense in that
law enforcement will engage in illegal activity in an attempt to solve crimes. We engage in
illegal activity when we are—when we buy drugs from people who are selling drugs. We
engage in illegal activity when we pay corrupt public officials money, when we go into
undercover operations. But we have to have that ability. It is an extremely important law
enforcement technique. But I think the point that you raise is a good one, and that is, that the
approval to do these kinds of activities can’t rest at the line level. There has to be supervisory
responsibility. And the question is, where do you draw that line?223
In addition, Representative Gerald Connolly questioned Attorney General Holder about the need
for tougher gun laws. The Attorney General responded that the Obama Administration had
(...continued)
79930290/%E2%80%9CFatally-Flawed-Five-Years-of-Gunwalking-in-Arizona-%E2%80%9D?tw_p=twt.
221 The reference to the Boston FBI office is in regard to the misuse of “high echelon” informants in the 1960s through
the 1990s. For further information, see U.S. Congress, House Committee on Government Reform, Everything Secret
Degenerates: The FBI’s Use of Murderers as Informants, committee print, 108th Cong., 2nd sess., 2 vols., February 3,
2004, H.Rept. 108-414 (Washington: GPO, 2004).
222 U.S. Congress, House Committee on Oversight and Government Reform, Operation Fast and Furious:
Management Failures at the Department of Justice, 112th Cong., 2nd sess., February 2, 2012, Serial No. 112-103
(Washington: GPO, 2012), p. 158.
223 Ibid., pp. 158-159.
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consistently favored reinstituting the semiautomatic assault weapons ban. Representative
Connolly remarked that there had been no congressional hearing held so far on that topic or any
other gun control proposal, yet the Attorney General had been questioned about Operation Fast
and Furious on at least six previous occasions before various congressional committees.
Chairman Issa countered that some of those hearings were appropriations hearings, at which
Operation Fast and Furious was not the predominant issue. He also noted that, to date, the Obama
Administration had not submitted any gun control-related legislative proposals to Congress. In
turn, Representative Connolly asked the Attorney General if that were so. While the Attorney
General did not comment upon any Administration-requested legislative proposals, he replied that
he would be happy to submit a proposal to Congress for consideration and added that he thought
that an anti-gun trafficking bill (H.R. 2554) introduced by Representative Carolyn Maloney
would make a good starting point.224 (H.R. 2554 is described below under “Gun Trafficking-
Related Proposals in the 112th Congress”)
On February 14, 2012, Chairman Issa sent the Attorney General a follow-up letter, in which he
conveyed the committee’s increasing frustration with the department. He questioned, among other
things, why Patrick Cunningham, the former Criminal Chief of the U.S. Attorney’s Office in
Arizona, asserted his Fifth Amendment privilege against self-incrimination rather than testify
before the committee. Regarding outstanding committee requests for documents and other
information related to the operation, Representative Issa emphasized that the committee’s
subpoena is not optional, and that a failure to produce the requested documents was a violation of
federal law. He went on to write that “By any measure, the Department has obstructed and slowed
our [the committee’s] work.”225
On May 3, 2012, Representative Issa, Chairman of the Committee on Oversight and Government
Reform, released a staff briefing paper and draft resolution to cite Attorney General Holder in
contempt of Congress for not complying with subpoenas issued by the committee for DOJ
documents related to Operation Fast and Furious. The staff briefing paper included the following
statement, alleging that “For over a year, the Department has issued false denials, given answers
intended to misdirect investigators, sought to intimidate witnesses, unlawfully withheld
subpoenaed documents, and waited to be confronted with indisputable evidence before
acknowledging uncomfortable facts.”226
On May 10, 2012, during House consideration of the FY2013 CJS Appropriations bill (H.R.
5326), two amendments were passed that also addressed Operation Fast and Furious.
Representative Trey Gowdy offered an amendment (H.Amdt. 1049) that reduced the DOJ General
Administration account by $1.0 million and applied it to the spending reduction account.
Representative Gowdy expressed his dissatisfaction with DOJ officials who have not complied
with a committee subpoenas for greater information about Operation Fast and Furious. The
Gowdy amendment passed by voice vote. Representatives Jason Chaffetz, Paul Gosar, and Blake
224 Ibid., pp. 162-164.
225 Letter from Representative Darrell Issa, Chairman of the House Committee on Oversight and Government Reform,
to Attorney General Eric H. Holder, Jr., regarding an October 12, 2011, subpoena for Operation Fast and Furious-
related documents and a February 1, 2012, departmental request for a deadline extension for those documents, February
14, 2012, http://oversight.house.gov/images/stories/Letters/2012-02-14_DEI_to_Holder-DOJ_-_Contempt.pdf.
226 Memorandum from Representative Darrell Issa, Chairman of the House Committee on Oversight and Government
Reform, to Members of the Committee, regarding an “Update on Operation Fast and Furious,” May 3, 2012, p. 10. For
a copy of this staff briefing paper and draft resolution report, go to http://oversight.house.gov/wp-content/uploads/2012/
05/Update-on-Fast-and-Furious-with-attachment-FINAL.pdf.
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Farenthold offered an amendment (H.Amdt. 1068) that would prohibit the expenditure of any
funding provided under the bill in contravention to a criminal provision related to fraud and false
statements (18 U.S.C. §1001(a)). This amendment was passed on a recorded vote: 381-41 (Roll
no. 226).
On June 7, 1012, the House Committee on the Judiciary held a DOJ oversight hearing, in which
Attorney General Holder was questioned by the Chairman and other Members about his and other
“high-level officials” knowledge about Operation Fast and Furious, and its underlying tactics that
allegedly allowed firearms to be transferred to known and suspected associates of Mexican drug
trafficking organizations.
On June 11, 2012, the Committee on Oversight and Government Reform issued a press release
announcing that it would meet to consider a staff briefing paper and draft resolution (described
above) holding Attorney General Eric Holder in contempt of Congress for his failure to produce
subpoenaed documents related to Operation Fast and Furious.227 On June 20, 2012, the committee
approved a report (H.Rept. 112-546) and accompanying resolution (unnumbered) to hold
Attorney General Holder in contempt of Congress for his failure to produce subpoenaed
documents related to Operation Fast and Furious, prompted in part by the President’s assertion of
executive privilege rather than turning over additional documents to the committee. Following
consideration of several amendments, the committee approved the report by a vote of 23-17.
On June 28, 2012, the House approved a resolution (H.Res. 711) that accompanied the report
described above and cited the Attorney General with contempt by a vote of 255 to 67 (Roll call
no. 441). While over 100 Democrats boycotted the vote, the votes taken split down party lines,
with the exception of 17 Democrats who voted yea and two Republicans who voted nay.
Previously, a motion offered by Representative John Dingell to refer the measure back to
committee was defeated by a vote of 172-251 (Roll call no. 440). The House approved a related
resolution (H.Res. 706) that authorizes the committee to initiate or intervene in judicial
proceedings to enforce certain subpoenas by a vote of 258-95 (Roll call no. 442), with 21
Democrats voting yea and no Republicans voting nay.228
During floor debate, Members who favored the contempt resolution asserted that this measure is
about government transparency and accountability and is a good faith effort to help bring closure
to the grieving family of slain Border Patrol Agent Brian Terry. They noted that DOJ has provided
less than 8,000 of the 140,000 pages of documents that it has handed over to its Inspector General
regarding Operation Fast and Furious. Moreover, they underscored that it took 10 months for
DOJ to concede that guns had been allowed to “walk” across the border, and that DOJ did so only
after being confronted with a mass of internal documents provided to the committee largely by
whistleblowers. They argued further that the Administration would not have asserted executive
privilege unless there was something to hide. They also argued that mounting evidence supports
the argument that high-level Administration officials purposefully embraced this risky and highly
inappropriate investigative technique—gun walking—in an ill-fated attempt to build a major gun
trafficking case that would net a cartel kingpin, a high-level plaza boss, or his enforcers.
227 http://oversight.house.gov/fastandfuriousinvestigation/.
228 For further information, see CRS Report RL34097, Congress’s Contempt Power and the Enforcement of
Congressional Subpoenas: Law, History, Practice, and Procedure, by Todd Garvey and Alissa M. Dolan.
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Members who opposed the contempt resolution countered that it is nothing more than “election-
year political theater” and a “witch hunt,” and that Attorney General Holder is being unjustly
disparaged. They countered that the Attorney General has been unprecedentedly open with the
committee by providing over 7,600 pages of documents and has been questioned at length about
Operation Fast and Furious at no less than nine congressional hearings. Furthermore, they
asserted that the Committee on Oversight and Government Reform’s majority did not honor any
requests made by the minority for witnesses or hearings related to “gun walking” and/or “gun
trafficking.” They submitted that a bipartisan, impartial investigation would have also examined
the investigative techniques employed during the previous Administration, which they contend
are examples of gun walking that possibly led to Operation Fast and Furious. Opponents also
noted for the record that the majority has not considered any proposals to strengthen gun laws and
address the criminal appetite for firearms in Mexico—particularly for assault weapons—that have
been illegally acquired from U.S. civilian gun markets. They further underscored that the political
nature of the contempt vote is borne out by the fact that, in their view, the committee’s majority
rushed to judgment by not holding a single hearing to examine possible merits of the President’s
assertion of executive privilege.
ATF Firearms Tracing for Mexican Authorities
Although the United States does not maintain a registry of firearms or firearm owners (except for
machineguns and destructive devices), as described above, ATF and federally licensed gun
dealers maintain a decentralized system of transaction records, through which ATF can sometimes
trace a firearm from its manufacturer or importer to its first private owner of record.229 Over the
years, successful firearm traces have generated leads in criminal investigations and have
generated data that illustrate wider trafficking trends and patterns.
To support Project Gunrunner, ATF developed and deployed a Spanish-language version of its
eTrace program for Mexican authorities to submit trace requests electronically to the United
States. However, it should be underscored that not all firearms seized by Mexican authorities are
traced, and trace submissions are more likely to be made for firearms believed to have originated
in the United States. Moreover, problems persist with regard to the quality, quantity, and
timeliness of firearms trace requests made by Mexican authorities and resultant data.230 Data on
some firearms, for example, were submitted several times. If previous tracing trends hold true,
moreover, about a quarter of trace requests would have failed because the firearm make, model,
or serial number was erroneously entered into the system.231 It is also probable that ATF was only
229 The key identifying element associated with each firearm and its related record of manufacture, importation, or
transfer is the firearm’s serial number. Through the firearm’s serial number, ATF can identify the manufacturer or
importer, contact them, and find out the wholesale or retail dealer to whom they transferred the firearm in question. In
recent years, many firearms manufacturers and importers have given ATF electronic access to such records in order to
respond to ATF trace requests more efficiently and expeditiously. By contacting the wholesale/retail dealer, ATF can
then identify the first retail owner of record, assuming the dealer’s recordkeeping is complete and the purchaser of the
firearm did not misrepresent himself by adopting a false identity. However, while the GCA requires licensed gun
dealers to maintain records on both new and secondhand firearm transfers, the linkage between the
manufacturer/importer records and the wholesale/retail dealer records is broken after the first retail sale, because there
is no mechanism under current law, through which ATF is informed when a secondhand firearm reenters the public
course of commerce by being transferred from a private person back to a licensed gun dealer.
230 Colby Goodman, Update on U.S. Firearms Trafficking to Mexico Report, Woodrow Wilson International Center for
Scholars, Mexico Institute, April 2011, http://www.wilsoncenter.org/news/docs/
Goodman%20Update%20on%20US%20Firearms%20to%20Mexico.pdf.
231 Ibid.
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able to identify the first private firearm owner of record or other possible sources in the United
States in about a quarter of trace requests.
Nonetheless, trace data have proved to be a useful indicator of trafficking trends with regard to
the types of firearms being trafficked, their possible sources, and how recently trafficked firearms
were diverted from legal to illegal channels of commerce. Along these lines, GAO recommended
that the Attorney General should direct ATF to regularly update its reporting on aggregate
firearms trace data and trends in its June 2009 Project Gunrunner report. GAO also reported that
ATF had traced more than 23,159 firearms from FY2004 through FY2008 for Mexican
authorities.232 Approximately 86.6% of those firearms were determined to have originated in the
United States.233 For the last three years (FY2006 through FY2008) of that study period, over
90% of firearms recovered in Mexico and traced by ATF were found to have originated in the
United States.234 Of those firearms, 68% were manufactured in the United States and 19% were
manufactured abroad and imported into the United States.235 About 70% of traced firearms were
found to have come from Texas (39%), California (20%), and Arizona (10%). It is notable,
however, that Mexican authorities had submitted only a fraction of the firearms that had been
recovered in Mexico. In FY2008, for example, information on only about 7,200 of the nearly
30,000 firearms recovered by the Mexican Attorney General’s office was submitted to ATF for
tracing.236
In May 2010, Mexican President Felipe Calderon addressed a joint session of Congress and
revealed that Mexican authorities had seized 75,000 firearms, of which 80% had been traced back
to the United States.237 According to ATF, this higher than previously reported number of traces
reflected a batch submission of trace requests made by the Mexican Attorney General that
changed the trace totals for previous years, which are reported by year of recovery.
In April 2011, the U.S. Embassy in Mexico City reported that ATF processed 78,194 trace
requests for Mexican authorities from FY2007 through FY2010.238 Based on previous trace data,
a large percentage of these trace requests would have involved firearms that were either
manufactured in or imported into the United States for civilian markets, but such a percentage
was not released by the Embassy.239 However, a significantly smaller percentage would have been
successfully traced to the first private owner of record. Noticeably absent were any data on
firearms with a short “time-to-recovery,”240 that is, the time interval between the initial retail sale
232 U.S. Government Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico
Face Planning and Coordination Challenges, GAO-09-709, June 2009, p. 18.
233 Ibid., p. 15.
234 Ibid.
235 Ibid., p. 16.
236 Ibid.
237 Mary Beth Sheridan, “Mexico’s Calderon Tells Congress He Needs U.S. Help in Fighting Drug Wars,” Washington
Post, May 21, 2010, p. A02.
238 U.S. Embassy in Mexico City, “Fact Sheet: Combating Arms Trafficking,” April 2011.
239 U.S. Government Accountability Office, Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico
Face Planning and Coordination Challenges, GAO-09-709, June 2009, pp. 5-6.
240 ATF employed the term “time-to-crime.” Some view “time-to-crime” as a misnomer, because some traced firearms
may not have been directly linked to a crime. Furthermore, their time-of-recovery by law enforcement may not reflect
precisely when, if ever, traced firearms were used in a crime. In addition, traced firearms might have been legally
imported into Mexico for civilian or military purposes. It is unknown whether ATF has access to U.S. export data that
would allow for the exclusion of such firearms from their trace accounts. Nevertheless, “time-to-recovery” gives policy
(continued...)
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of a firearm by a federally licensed gun dealer to a private person and the firearm’s recovery by
law enforcement. A short time-to-recovery is one possible indicator that the firearm had been
trafficked or stolen. Nor did the Embassy press release include any data on type, make, model,
and caliber of the most frequently traced firearms. For trend analysis, such data would have been
useful for total firearms traced, as well as for different time periods.241
In June 2011, ATF released limited trace data to the Senate Caucus on International Narcotics
Control.242 The Senate Caucus reported that ATF processed 29,284 trace requests on firearms that
were recovered by Mexican authorities in calendar years 2009 and 2010. Of those firearms,
20,504 (70%) were either manufactured in or imported into the United States. ATF did not
provide any data on successful traces that resulted in identifying the first private owner of record,
the time-to-recovery of traced firearms, or the most frequently traced firearms by type, make,
model, and caliber. These omissions, in part, prompted Senator Grassley to write then ATF Acting
Director Kenneth Melson with “questions about why ATF provided some select information, but
not a more detailed analysis that would help Congress, and the American people, better
understand the causes and sources of illegal firearms in Mexico.”243 Senator Grassley expressed
his concern that press accounts that focused exclusively on U.S. manufactured or imported
firearms as a percentage of total trace requests submitted by Mexican authorities were
misleading.244 Senator Grassley also cited an article that reported that a significant quantity of
firearms that had been recovered by or turned over to the Mexican Army, as opposed to the
Mexican Attorney General, had not been submitted to ATF for tracing.245
With the limited release of trace data, it became and probably remains less clear whether the flow
of illegal guns consists of an “ant run” that has trickled across the border over the decades as
individuals or small, independent organizations have smuggled firearms into Mexico for a variety
of purposes, or an “iron river of guns” that has surged in recent years as Mexican DTOs have
sought to arm themselves with firearms that are commonly available on the U.S. civilian market.
When available, trace data suggest that the majority of firearms submitted for tracing originated
in the United States, given that these firearms were either embossed with a U.S. manufacturer or
importer’s stamp. However, it is probable that a much smaller percentage of these firearms were
successfully traced to the first U.S. private owner of record. More importantly, several substantive
methodological limitations preclude using trace data as a proxy for the larger population of crime
guns in Mexico or the United States. While the United States could be the largest source of crime
(...continued)
makers a rough time interval, during which traced firearms were possibly stolen or trafficked.
241 In several conversations with ATF officials, the author was told that the agency was reluctant to release data on the
make of firearms, because the press and interest groups had focused on the firearm manufacturers as being corrupt
causing a public relations problem, because the manufacturers were engaged in lawful activities with regards to making
and selling of these firearms.
242 ATF released limited trace data to the Senate Caucus on International Narcotics Control in June 2011. See U.S.
Senate Caucus on International Narcotics Control, Halting U.S. Firearms Trafficking to Mexico: A Report by Senators
Dianne Feinstein, Charles Schumer, and Sheldon Whitehouse, 112th Cong., 1st sess., June 2011, p. 6.
243 Letter from Senator Charles E. Grassley to Acting ATF Director Kenneth Melson, regarding the selective release of
firearms trace data, June 16, 2011, http://grassley.senate.gov/judiciary/upload/Guns-06-16-11-signed-letter-to-Melson-
incomplete-gun-data.pdf.
244 Ibid.
245 For example, Senator Grassley cited a news report in which it was reported that, in May 2009, the Mexican Army
held over 305,424 recovered weapons, the bulk of which had not been traced by ATF. See E. Eduardo Castillo, “AP
IMPACT: Mexico’s Weapons Cache Stymies Tracing,” Associated Press Online, May 7, 2009.
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guns in Mexico, trace data do not conclusively establish that assertion as fact. In addition, another
consideration could be the possibility that the 78,000 firearms that were submitted by Mexico’s
Attorney General for tracing represent a proverbial “pig in the python.” Unknown, but possibly
significant, percentages of these firearms could have been illegally smuggled into Mexico over
decades. Moreover, while there is little evidence to suggest that Mexican DTOs are acquiring
military grade firearms directly from sources within the United States, these organizations are
arguably capable of acquiring such firearms and other military armaments (e.g., recoilless rifles,
rocket launchers, and grenades) from other illicit, international sources given the profitability of
the illegal drug trade.
In the Consolidated and Further Continuing Appropriations Act, 2012 (P.L. 112-55; H.R. 2112),
conferees included report language (H.Rept. 112-284, p. 240) that requires ATF to provide the
Committees on Appropriations with annual data on the total number of firearms recovered by the
Government of Mexico, and of those, the number for which an ATF trace is attempted, the
number successfully traced and the number determined to be manufactured in or imported into
the United States prior to being recovered in Mexico.
On April 26, 2012, in compliance with the provision described above, ATF released revised but
limited trace data for calendar years 2007 through 2011. ATF underscored that the Government of
Mexico did not and does not provide it with data on the total number of firearms seized in that
country, nor did the agency make any attempt to estimate the number of firearms seized in that
country. Nevertheless, of 99,691 firearms submitted by Mexican authorities to ATF for tracing for
those calendar years (2007-2011), 68,161 (68.3%) were considered to be U.S.-sourced, in that
those firearms were either originally manufactured in or imported into the United States. Of those
U.S.-sourced firearms, 27,825 (27.9%) were traced back to the initial purchaser, or the first retail
purchaser of record. And, another 1,461 (1.4%) of those U.S.-sourced firearms were legitimately
exported to Mexico from a U.S. gun dealer to a Mexican law enforcement or government agency.
While ATF did not provide any data on the make, model, or caliber of (1) U.S.-sourced firearms,
(2) firearms traced back to the initial purchaser, or (3) traced firearms with a short time-to-
recovery, it did provide breakdowns by type of firearm. ATF noted that the percentage of firearms
submitted for tracing that were rifles had shifted markedly during those years. For example, for
2007 rifles accounted for 28.2% of firearms submitted for tracing. That percentage increased to
58.6% for 2010 and decreased somewhat to 43.3% for 2011.246
Veterans, Mental Incompetency, and Firearms Eligibility
The 112th Congress has revisited the issue of veterans, mental incompetency, and firearms
eligibility. On July 22, 2011, the House Committee on Veterans’ Affairs Subcommittee on
Disability and Memorials marked up and reported a veterans’ benefits bill (H.R. 2349). During
markup, Representative Denny Rehberg successfully offered an amendment to the bill that would
prohibit the Department of Veterans Affairs (VA) from determining a beneficiary to be mentally
incompetent for the purposes of gun control, unless such a determination were made by a judge,
magistrate, or other judicial authority based upon a finding that the beneficiary posed a danger to
himself or others. As described below, similar amendments were considered in the 110th and 111th
Congresses. On October 6, 2011, the full committee approved this bill. On October 11, 2011, the
246 For more information, ATF has posted trace data for Mexico, Canada, and the Caribbean on its website,
http://www.atf.gov/statistics/.
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House passed H.R. 2349 by a voice vote. It includes the Rehberg amendment, which reflects a
bill (H.R. 1898) that Representative Rehberg previously introduced on May 13, 2011. Senator
Burr introduced a similar bill (S. 1707) on October 13, 2011.
Proponents of the Veterans Second Amendment Protection Act, like the NRA, view the current
VA policy as placing an unwarranted indignity on men and women, in many cases at the end of
their lives, who have previously served their country honorably in the Armed Forces. Arguably,
some of those veterans referred by the VA to the FBI as having been “adjudicated as mental
defective” may have only been mentally incapacitated due to age or other related infirmities, as
opposed to suffering from a severe mental illness or disability that caused them to behave in a
threatening or dangerous manner. Opponents of the proposal, like the Brady Campaign, have
countered that the VA has demonstrated due diligence by complying with the law and, by doing
so, has increased public safety. They could argue further that the VA’s current policy does not
diminish national recognition of those veterans’ honorable service; instead, it has been
implemented to protect those veterans and others from the harm that might occur if they acquired
a firearm and used it improperly. For a fuller discussion of underlying issues, see Appendix A.
ATF FY2012 and FY2013 Appropriations
The ATF enforces federal criminal law related to the manufacture, importation, and distribution of
alcohol, tobacco, firearms, and explosives. ATF works independently and through partnerships
with industry groups; international, state and local governments; and other federal agencies to
investigate and reduce crime involving firearms and explosives, acts of arson, and illegal
trafficking of alcohol and tobacco products.
Figure 3. ATF Appropriations, FY2001-FY2012
(dollars in millions)
Source: Department of the Treasury and Department of Justice congressional budget submissions.
Notes: *The FY2011 appropriation includes $37.5 million that was provided to ATF under the FY2010/FY2011
Southwest border supplemental appropriation (P.L. 111-230), because most of that funding was obligated for
FY2011.
Congress usually funds ATF in the Commerce-Justice-Science (CJS) appropriations bill. In the
absence of an enacted bill for FY2012, Congress passed a continuing resolution (P.L. 112-36) that
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funded ATF at its FY2011 level (less 1.503%) through November 18, 2011.247 As discussed
further below, Congress passed full-year CJS appropriations in the Consolidated and Further
Continuing Appropriations Act, 2012 (H.R. 2112; H.Rept. 112-284), which the President signed
into law (P.L. 112-55) on November 18, 2011. For FY2012, this act provided ATF with $1.152
billion, or nearly $39.5 million more than the previous year. In part, the increased appropriation
for FY2012 reflects that the FY2010/FY2011 Southwest border supplemental appropriation was
annualized in that year’s appropriation. As reflected in Figure 3, if the $37.5 million
FY2010/FY2011 Southwest border supplemental were included in ATF’s FY2011 appropriation,
the FY2012 appropriation would reflect a considerably smaller increase, $2.0 million.
FY2013 Request
For FY2013, the Administration has
Figure 4. ATF Appropriations,
requested $1.153 billion for ATF. Although
FY2013 Request
this amount reflects a net increase of about
$1.3 million, the FY2013 request includes no
new budget enhancements for ATF. Instead, it
anticipates over $26.9 million in savings or
other offsets in either contract reductions
($24.8 million) or information technology
savings ($2.1 million). As Figure 4 shows,
the largest portion ($875.5 million, or 76%)
of the requested appropriation would be
allocated to the firearms budget decision unit.
The second-largest portion ($253.7 million, or
22%) would be allocated to the arson and
Source: ATF Congressional Budget Submission,
explosives budget decision unit. The
FY2013.
remainder ($23.1 million, or 2%) would be
allocated to the alcohol and tobacco diversion budget decision unit. By percentage, these
allocations are comparable to those reported by ATF to correspond with the agency’s FY2012
enacted appropriation.
Also of significance, the Administration’s request includes proposals to strip out futurity language
that was attached to two ATF appropriations riders during the FY2012 appropriations cycle
making those riders permanent law. The first rider prohibits ATF from consolidating or
centralizing within DOJ the records of firearms acquisitions and dispositions (or any portion
thereof) that federally licensed gun dealers are required by law to maintain. When gun dealers go
out of business, however, those records are forwarded to ATF. And, the second rider prohibits
ATF from electronically searching those out-of-business records by name or any personal
identification code. For evidentiary purposes, those records are maintained on microform. For
retrieval and storage purposes, out-of-business records are maintained in a digital format, so those
records may be searched electronically by firearm serial number, but not by owner (first retail
buyer of record). In addition, the Administration’s request would strip out futurity language
(inserted for FY2008 and every year thereafter) included in a controversial ATF appropriations
rider known as the Tiahrt amendment. For a fuller discussion of underlying issues, see Appendix
A.
247 For further information, see CRS Report RL30343, Continuing Resolutions: Latest Action and Brief Overview of
Recent Practices, by Sandy Streeter.
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On April 19, 2012, the Senate Committee on Appropriations reported an FY2013 funding
measure (S. 2323) that would provide ATF with the same amount as requested by the
Administration ($1.153 billion). The Senate bill, however, does not follow the Administration’s
request to strip the futurity language out of ATF appropriations riders that were made permanent
in the previous year’s appropriations act (P.L. 112-55). On the one hand, Senate report language
(S.Rept. 112-158, p. 73) noted that Operation Fast and Furious was only one part of ATF’s
Southwest border operations to reduce illegal gun trafficking to Mexico. On the other hand,
language was included in the departmental general provisions that would continue to prohibit the
expenditure of any funding under the bill from being used to facilitate the transfer of an operable
firearm to a known or suspected agent of a drug cartel (§217). Another provision would continue
to prohibit ATF from issuing regulations that would prohibit the importation of certain types of
shotguns (§538). Yet another provision, which may have implications for ATF, prohibits any U.S.
Attorney from holding multiple jobs outside of the scope of a U.S. Attorney’s professional duty
(§213). As described above, the U.S. Attorney for the District of Minnesota, B. Todd Jones, is
currently serving as the interim acting ATF Director.
On April 26, 2012, the House Committee on Appropriations approved a similar FY2013 funding
measure (H.R. 5326) that would also provide the same amount for ATF ($1.153 billion). This
measure also includes provisions that are similar to those included in the Senate-reported bill
described above (§§217, 536, and 213). In addition, the House measure includes futurity language
in three additional long-standing prohibitions (riders) included in the ATF salaries and expenses
appropriations language. These provisions would prohibit ATF from
• altering the regulatory definition of “curios and relics,”248
• requiring federally licensed gun dealers to conduct physical inventories,”249 or
• revoking a federal firearms license for lack of business activity.
In addition, during House full committee markup, Representative Rehberg successfully offered an
amendment that would prohibit ATF from requiring multiple long gun sales reports. As described
below, a similar Rehberg-sponsored amendment was included in the FY2012 House bill, but it
was not included in an enacted bill. On May 10, 2012, the House passed H.R. 5326, amended.
Two amendments reduced ATF funding for FY2013 to $1.151 billion, or $537,000 less than the
FY2012 appropriation.250
248 See 27 CFR §478.11 for the definition of “curios and relics,” which generally include firearms that are 50 years old,
of museum interest, or derive a substantial amount of their value from the fact that they are novel, rare, bizarre, or
because they are associated with some historical figure, period, or event. For a list of “curios and relics,” go to
http://www.atf.gov/firearms/curios/index.htm. Federally licensed firearms collectors are authorized to engage in limited
interstate transfers of “curios and relics,” whereas in nearly all cases an unlicensed person must engage the services of a
federally licensed gun dealer to facilitate interstate firearms transfers to another unlicensed person.
249 This provision was also originally part of the Tiahrt amendment.
250 During House floor consideration, however, Representative Colleen Hanabusa offered an amendment (H.Amdt.
1046) to reduce the ATF appropriation by $1.9 million and increase the NOAA appropriation (described above) by
$1.6 million. In addition, the House considered another amendment (H.Amdt. 1090) to reduce the ATF appropriation
by $18,000. The House approved both amendments by voice votes.
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FY2012 Request and Appropriation
For FY2012, the Administration requested $1.147 billion for ATF.251 This amount would have
funded 5,147 FTE positions and 5,181 permanent positions. Although it would have provided a
$34.8 million increase (3.1%) over ATF’s enacted FY2011 appropriation, nearly all of this
increase would have been for increases to the agency’s base budget, including the annualized
$37.5 million Southwest border supplemental appropriation.252 Correspondingly, the
Administration anticipated offsets and savings of $27.3 million, as well as a program increase of
$1.5 million as a budget enhancement for ATF to participate in a DOJ-wide initiative to increase
law enforcement electronic surveillance capabilities nationally. Reductions included $10.0
million in the National Integrated Ballistic Information Network (NIBIN), $4.0 million in reduced
training opportunities for state and local law enforcement, and $1.0 in the alcohol and tobacco
program. According to the ATF, the remaining $12.3 million in reductions would be sustained
through other administrative efficiencies and cost reductions. As noted above and described
below, Congress appropriated ATF $1.152 billion for FY2012.
Figure 5. ATF Appropriations: FY2012 Requested and Enacted Compared
(dollars in millions)
Source: ATF Congressional Budget Submissions, Fiscal Years 2012 and 2013.
Figure 5 shows budget decision unit allocations, as proposed in the FY2012 budget request and
as reported in the FY2013 budget request. Under the request, the firearms compliance and
investigations decision unit was to be allocated the lion’s share, 75%, of appropriated funding.
Under the enacted appropriation, it was allocated 76%. The arson and explosives investigations
251 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Congressional Budget
Submission, Fiscal Year 2012, February 2011, http://www.justice.gov/jmd/2012justification/pdf/fy12-atf-
justification.pdf.
252 Congress finalized ATF’s FY2011 appropriation in the Department of Defense and Full-Year Continuing
Appropriations Act, 2011 (H.R. 1473; P.L. 112-10). Under this act, Congress provided $1.113 billion for ATF for
FY2011, or $8.2 million less than the previous year’s appropriation. It is significant to note that neither amount, the
$1.121 billion for FY2010 or the $1.113 billion for FY2011, reflect an FY2010/FY2011 Southwest border
supplemental of $37.5 million, which was provided at the end of FY2010. Because of the timing of the supplemental,
for accounting purposes it arguably could be added to either fiscal year. However, it was largely obligated in FY2011.
Added to that year’s appropriation, ATF’s FY2011 appropriation increases to about $1.150 billion. And, instead of an
$8.2 million reduction, ATF had an additional $29.3 million in budget authority for FY2011.
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decision unit and the alcohol and tobacco diversion decision unit were to be allocated 23% and
2%, respectively, of the requested appropriation. Under the enacted appropriation, however, the
arson and explosives investigations decision unit was allocated 22%.
On July 20, 2011, the House Committee reported an FY2012 CJS appropriations bill (H.R. 2596;
H.Rept. 112-169). This measure would have provided ATF with $1.111 billion, $1.1 million
(0.1%) less than the FY2011 enacted amount and $35.9 million (3.1%) less than the
Administration’s FY2012 request.253 In full committee markup, the bill was amended with two
firearms-related amendments. One, described above, would have prohibited ATF from
implementing an OMB-approved information collection initiative, under which federally licensed
gun dealers in Southwest border states are required to submit multiple sales reports for certain
semiautomatic rifles to ATF. As discussed below, this provision was not included in the enacted
FY2012 appropriation. The other would prohibit ATF from implementing additional restrictions
on the importation of certain shotguns that include certain features (e.g., pistol grips, folding or
collapsible stocks, laser sights, and the ability to accept large capacity ammunition feeding
devices) that ATF has determined to be non-sporting.254 This prohibition was included in the
enacted FY2012 appropriation. Moreover, H.R. 2596 included language of “futurity” in several
firearms-related riders. As described below, similar language was included in three provisions in
the enacted appropriation.
On September 15, 2011, the Senate Committee on Appropriations reported an FY2012 CJS
appropriations bill (S. 1572; S.Rept. 112-78) that would have provided $1.09 billion for ATF,
$22.3 million (2.0%) less than the FY2011-enacted amount, $57 million (5.0%) less than the
Administration’s request of $1.147 billion, and $21.1 million (1.9%) less than the House mark.
The Senate folded S. 1572 into a Minibus appropriations bill (H.R. 2112) and passed this
measure. In addition to the Senate-passed Cornyn amendment (S.Amdt. 775, discussed above),
several other firearms-related amendments were offered but not voted upon. For example,
Senators Mark Begich and Orrin Hatch offered an amendment to broaden the circumstances
under which handguns could be transferred legally in interstate commerce (S.Amdt. 786). Senator
Dean Heller offered an amendment to prohibit ATF from implementing its Southwest border
multiple rifle sales reporting requirement (S.Amdt. 843). Similar language, as described above,
has been included in the House-reported bill (H.R. 2596). Senator Hatch also offered three
amendments to include language of “futurity” into firearms-related riders accompanying the ATF
appropriation (S.Amdt. 745, S.Amdt. 770, and S.Amdt. 875). The House-reported and -passed
bill included similar futurity language. Senator Jon Tester offered an amendment that would
overturn an ATF ruling that persons who have medical marijuana prescriptions are ineligible to
possess firearms (S.Amdt. 882).
On November 14, 2011, House and Senate conferees reported H.R. 2112 (H.Rept. 112-284),
which has been enacted (P.L. 112-55). It provides ATF with $1.152 billion for FY2012. This
amount is $39.5 million (3.5%) greater than the FY2011 enacted amount, $4.7 million (0.4%)
greater that the FY2012 request, $40.6 million (3.7%) greater than the House-reported amount,
and $61.7 million (5.7%) greater than Senate-passed amount. As discussed above, this act
253 During full committee markup, Representative Sam Farr successfully offered an amendment that cut discretionary
accounts in the bill by 0.1%, and shifted that funding ($48 million) to the National Oceanic and Atmospheric
Administration’s Operations, Research, and Facilities program.
254 U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms and Explosives
Industry Division, ATF Study on the Importability of Certain Shotguns, January 2011, http://www.atf.gov/firearms/
industry/january-2011-importability-of-certain-shotguns.pdf.
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includes revised language that reflects the Cornyn amendment. This provision (§219) prohibits
any federal law enforcement officer from facilitating the delivery of an operable firearm to an
individual known or suspected of being connected to a drug cartel. It also includes “futurity”
language that makes three long-standing annual appropriation riders permanent law. For FY2012
and every year thereafter, these riders prohibit
• DOJ from consolidating or centralizing any records maintained by federally
licensed gun dealers related to the acquisition and disposition of firearms;255
• ATF from electronically retrieving firearm transfer records that have been
submitted to ATF, when federally licensed gun dealers go out business, by
searching those out-of-business records by any individual’s name or other
personal identification code;256 and
• the FBI from charging a fee in connection with a Brady background checks for
firearms transfer and possession eligibility, and requires further that the FBI
destroy all Brady background check records related to approved firearm transfer
records within 24 hours (§511).
In addition, the act includes a provision (§541) that is similar to House language that would
prevent ATF from implementing additional restrictions on the importation of certain shotguns, as
well as report language requiring ATF to report to the House and Senate Appropriations
Committees annually on firearm trace requests processed for Mexican authorities.
FISA Sunset Extensions and Firearms-Related Amendments257
On May 12, 2011, the House Judiciary Committee considered a bill, the FISA Sunsets
Reauthorization Act of 2011 (H.R. 1800), to extend certain expiring provisions of the Foreign
Intelligence Surveillance Act (FISA).258 In full committee markup, Representative Mike Quigley
offered an amendment that would have allowed the Attorney General to deny a firearms transfer
to any person about whom the Attorney General gathered information during the course of a
national security investigation (under FISA), if that information generated a “reasonable belief”
that the firearm(s) might be used by the prospective transferee in terrorism-related conduct.259
This amendment was defeated by a vote of 11 to 21.260
During Senate consideration of similar bill, the PATRIOT Sunsets Extension Act of 2011 (S. 1038
and S. 990), Senator Rand Paul offered several versions of an amendment (S.Amdt. 328, S.Amdt.
363, and S.Amdt. 373) that would have exempted certain “firearms records” from the business
records that can be secretly obtained by FBI agents during a FISA national security investigation
255 Proviso in ATF salaries and expenses language.
256 Ibid.
257 For information on FISA provisions that were due to sunset, see CRS Report R40138, Amendments to the Foreign
Intelligence Surveillance Act (FISA) Extended Until June 1, 2015, by Edward C. Liu.
258 50 U.S.C. §1801 et al.
259 To effect such a firearms transfer denial, the subject of the FISA investigation would most likely be placed on a
NICS-accessible terrorist watch list (NCIC-KST). For further information, see the heading below, Brady Background
and Terrorist Watch List Checks.
260 U.S. Congress, House Committee on the Judiciary, FISA Sunsets Reauthorization Act of 2011, to accompany H.R.
1800, 112th Cong., 1st sess., May 18, 2011, p. 9.
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(§215 of the USA PATRIOT Act, as amended261). On May 26, 2011, during consideration of S.
990, the Senate tabled S.Amdt. 363 by a vote of 85 to 10. Therefore, the amendment was not
included in the enacted legislation (P.L. 112-14).
Tucson Shootings
Following the Tucson shootings, issues were raised about the shooter’s mental illness and drug
use, as well as his use of large capacity ammunition feeding devices (LCAFDs). Another issue
that was raised was banning firearms within the proximity of certain high-level federal officials.
Mental Illness and Drug Use as Prohibiting Factors
As described above, persons who have been “adjudicated mental defective”262 or who are
“unlawful users of or addicted to any controlled substance”263 are prohibited from possessing a
firearm or having one transferred to them. The FBI maintains files on those persons as part of the
NICS Index. According to the FBI, as of December 31, 2010, the NICS Index included 1,107,758
records on individuals who had been adjudicated mental defective.264 Although the NICS Index
included 2,092 records on individuals who are known to be drug users and addicts,265 arrest
records for drug offenses are also contained in the Interstate Identification Index (III).
Following the Virginia Tech mass shooting on April 16, 2007, Congress passed the NICS
Improvement Amendments Act of 2007 (NIAA; P.L. 110-180), a law that established incentives
to prompt state, local, and tribal governments to transfer mental defective files to the FBI for
inclusion in the NICS Index. Although this act focused on mentally ill persons who were
adjudicated to be a threat to themselves or others, it did not focus on drug users. As a
consequence, Congress could revisit the NIAA to increase incentives for state, local, and tribal
governments to transfer records on both categories of prohibited persons. Along these lines,
Mayors Against Illegal Guns (MAIG) released a “plan to prevent further tragedies” like Tucson.
The MAIG plan calls for the following steps:
261 P.L. 107-56; October 26, 2001; 115 Stat. 287, codified at 50 U.SC. §1861. Section 215 requires the Foreign
Intelligence Surveillance Court to approve all requests for such documents.
262 For a definition of “adjudicated mental defective,” see the “Mental Defective Adjudications” section on p. 38.
263 Under 27 C.F.R. §478.11, an “unlawful user of or addicted to any controlled substance” means a person who uses a
controlled substance and has lost the power of self-control with reference to the use of [a] controlled substance; and any
person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician.
Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather
that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A
person may be an unlawful current user of a controlled substance even though the substance is not being used at the
precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may
be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that
reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past
year; multiple arrests for such offenses within the past five years if the most recent arrest occurred within the past year;
or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered
within the past year. For a current or former member of the Armed Forces, an inference of current use may be drawn
from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction,
nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.
264 See http://www.fbi.gov/about-us/cjis/nics/reports/nics-index.
265 Ibid.
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• fully funding the NICS Improvement Amendments Act (P.L. 110-180) to help
agencies and states cover the costs of gathering records on prohibited persons and
making them electronically available to the FBI;
• providing larger cuts (up to 50%) to a wider array of federal law enforcement
assistance grant programs266 for not providing such records than what is currently
provided for under P.L. 110-180;
• requiring every federal agency to certify to the Attorney General twice a year that
all disqualifying records, including those related to drug use or addiction, have
been electronically provided to the FBI;
• clarifying and expanding regulatory definitions related to mental health and drug
use; and
• safeguarding the rights of people who are listed in databases queried by NICS.267
Senator Charles Schumer introduced a bill that would amend P.L. 110-180 to advance certain
deadlines and apply deeper cuts to a wider array of federal law enforcement assistance grant
programs (S. 436). Representative Carolyn McCarthy introduced an identical measure (H.R.
1781). Representatives McCarthy and John Dingell have reportedly submitted a request to GAO
for an assessment of weaknesses in firearms-related background check procedures.268 On
November 15, 2011, the Senate Committee on the Judiciary’s Subcommittee on Crime and
Terrorism held a hearing on the Fix Gun Checks Act of 2011 (S. 436/H.R. 1781).
Large Capacity Ammunition Feeding Devices
The Tucson shooter was reportedly armed with a 9mm Glock 19 semiautomatic pistol loaded with
31 rounds in a 33-round extended magazine.269 This pistol is normally equipped with a 15-round
magazine, two of which the shooter also had on his person. He also had another 33-round
extended magazine.270 He managed to fire at least 31 shots, emptying a single magazine. He
killed 6 people and wounded another 13, including Representative Giffords. Three bystanders,
one of whom was wounded, managed to subdue the shooter as he attempted to reload his second
30-plus round magazine. Representative McCarthy has introduced a bill to reinstate a ban on
magazines that are capable of accommodating more than 10 rounds (H.R. 308). Such a ban was in
effect from September 13, 1994, through September 13, 2004, as part of the larger semiautomatic
assault weapons ban (described below). Senator Frank Lautenberg has introduced a similar bill
(S. 32).
266 According to MAIG, such programs could include the State Criminal Alien Assistance Program, Title II Juvenile
Justice Grants, Juvenile Accountability Block Grants, and Enforcing Underage Drinking Laws Block Grants.
267 Mayors Against Illegal Guns, “A Plan to Prevent Future Tragedies,” January 2011,
http://www.mayorsagainstillegalguns.org.
268 James V. Grimaldi and Sari Horwitz, “Cuts Threaten ATF’s Efforts to Stem Flow of Guns South,” Washington Post,
January 31, 2011, p. 1.
269 David A. Fahrenthold and Clarence Williams, “Congresswoman Shot in Tucson Rampage,” Washington Post,
January 9, 2011, p. A1.
270 Most semiautomatic pistol magazines, or clips, are designed to be self-contained within the handle of the pistol. The
33 round extended magazines used by the shooter protrude well beneath the butt of the pistol handle.
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Banning Firearms within the Proximity of Federal Officials
Representatives Laura Richardson and Peter King have introduced bills (H.R. 367 and H.R. 496)
that would prohibit most people from carrying a firearm within 1,000 feet of certain high-level
federal officials while those officials were holding a public event, campaigning for office, or
otherwise acting in an official capacity. Both bills arguably are modeled on the Gun Free School
Zone Act of 1990 (P.L. 101-647), which prohibits firearm possession in a school zone (on the
campus of a public or private school or within 1,000 feet of the grounds).271
Other Salient Gun Control Legislative Issues
Other salient firearms-related issues that continue to receive attention include (1) screening
firearms background check applicants against terrorist watch lists; (2) combating gun trafficking
and straw purchases; (3) reforming the regulation of federally licensed gun dealers; (4) requiring
background checks for private firearms transfers at gun shows; (5) more-strictly regulating certain
firearms previously defined in statute as “semiautomatic assault weapons”; and (6) banning or
requiring the registration of certain long-range .50 caliber rifles, which are commonly referred to
as “sniper” rifles.
Terrorist Watch List Screening and Brady Background Checks272
On November 5, 2009, U.S. Army Major Nidal Malik Hasan shot 13 persons to death and
wounded over 30 at Fort Hood, TX. Prior to the shootings, Hasan had corresponded by email
with a radical Muslim imam, Anwar al-Aulaqi, who U.S. authorities had long suspected of having
substantial ties to al-Qaeda.273 Although FBI counterterrorism agents were aware of Hasan’s
communications with al-Aulaqi,274 it was unclear at what level Hasan was being scrutinized by
the FBI.275 If he had been the subject of a full counterterrorism investigation, FBI policy would
have required that he be watch-listed.276 Depending upon the sequence of events, had Hasan been
watch-listed, there is a possibility that his purchase of a pistol277 and the required Brady
background check could have alerted FBI counterterrorism agents to that transfer, and they might
271 For the statutory definition of a “school zone,” see 18 U.S.C. §921(a)(25). For the prohibition, see 18 U.S.C.
§922(q).
272 For further information, see CRS Report R42336, Terrorist Watch List Screening and Brady Background Checks for
Firearms, by William J. Krouse.
273 Carrie Johnson, Spencer C. Hsu, and Ellen Nakashima, “Hasan Had Intensified Contact with Cleric: FBI Monitored
E-mail Exchanges Fort Hood Suspect Raised Prospect of Financial Transfers,” Washington Post, November 21, 2009,
p. A01.
274 Philip Rucker, Carrie Johnson, and Ellen Nakashima, “Hasan E-mails to Cleric Didn’t Result in Inquiry; Suspect in
Fort Hood Shootings Will Be Tried in Military Court,” Washington Post, November 10, 2009, p. A01.
275 According to a November 11, 2009, FBI press release, Hasan’s communications with Anwar al-Aulaqi were
assessed by the FBI in connection with an investigation of another subject, and the content of those communications
was explainable by his research as a psychiatrist at the Walter Reed Medical Center and nothing else derogatory was
found that would have suggested that he was involved in terrorist activities or planning. U.S. Department of Justice,
Federal Bureau of Investigation, “Investigation Continues Into Fort Hood Shooting,” November 11, 2009.
276 U.S. Department of Justice, Office of Inspector General, Audit Division, Federal Bureau of Investigation’s Terrorist
Watchlist Nomination Practices, Audit Report 09-25, May 2009, p. 11.
277 Hasan reportedly purchased the Fabrique Nationale 5.7mm pistol that he used in the shootings on August 1, 2009.
He also carried a .357 magnum revolver; however, it is unclear whether he fired the revolver.
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have been able to take steps that would have prevented the shootings. The Fort Hood shootings
renewed interest in the U.S. government’s use of terrorist watch lists for firearms- and explosives-
related background checks.278
Post-9/11 Modified NICS Procedures
Before February 2004, terrorist watch list checks were not part of the Brady background check
process because being a suspected or known terrorist was and is not a disqualifying factor for
firearms transfer/possession eligibility under federal or state law. As is the case today, to
determine such eligibility, the National Instant Criminal Background Checks System (NICS)
queries three databases maintained by the FBI. They include the National Crime Information
Center (NCIC), the Interstate Identification Index (III), and the NICS index. The NICS index
includes disqualifying records on persons that would not be included in the III or NCIC, for
example, persons dishonorably discharged from the Armed Forces, adjudicated as a mental
defective, or convicted of certain serious immigration violations, among others. The III contains
criminal history records for persons arrested and convicted of felonies and certain serious
misdemeanors. The NCIC contains law enforcement files on fugitives and persons subject to
restraining orders, among other persons. NCIC also contains a file known as the Violent Gang
and Terrorist Organization File (VGTOF). Prior to the 9/11 attacks, this file included limited
information on known or suspected terrorists and gang members. NICS examiners were not
informed of VGTOF hits, as such information was not considered relevant to determining
firearms transfer/possession eligibility.
In November 2002, DOJ initiated a NICS transaction audit to determine whether prohibited aliens
(non-citizens) were being improperly transferred firearms.279 As part of this audit, NICS
procedures were changed so that NICS examiners would be informed of VGTOF hits. Under
Homeland Security Presidential Directive 6, moreover, the Administration initiated a broad-based
review of the use of watch lists, among other terrorist identification and screening mechanisms.280
In September 2003, the FBI-administered Terrorist Screening Center (TSC) was established and
work was begun to improve and merge several watch lists maintained by the U.S. government
into a consolidated Terrorist Screening Database (TSDB).281 Following those efforts, TSDB
lookout records from other agency watch lists were downloaded into VGTOF. By May 2007,
VGTOF contained more than 100,000 records.282 In 2009, the FBI created a separate file for
“known and appropriately suspected terrorists (KST)” by splitting VGTOF into separate gang and
terrorist files.283 As of March 31, 2010, the KST included 278,219 terrorist watch list records.284
278 Michael Bloomberg and Thomas Kean, “Enabling the Next Fort Hood? Congress’s Curbs on Gun Data Hurt
Investigations,” Washington Post, November 27, 2009, p. A23.
279 U.S. Government Accountability Office, Gun Control and Terrorism: FBI Could Better Manage Firearm-Related
Background Checks Involving Terrorist Watch List Records, GAO-05-127, January 2005, p. 7.
280 For further information, see CRS Report RL32366, Terrorist Identification, Screening, and Tracking Under
Homeland Security Presidential Directive 6, by William J. Krouse.
281 Ibid., p. 9.
282 U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services (CJIS) Division,
“NCIC Marks 40 Years of Serving Law Enforcement,” The CJIS Link: Criminal Justice Information Services that
Connect Local, State, and Federal Law Enforcement, vol. 10, no. 1, May 2007, p. 2.
283 Daniel D. Roberts, Assistant Director, Criminal Justice Information Services, Federal Bureau of Investigation,
Statement Before the Senate Committee on Homeland Security and Governmental Affairs, May 5, 2010, p. 1.
284 Statistics provided by the FBI Office of Congressional Affairs to CRS on May 11, 2010.
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In November 2003, DOJ directed the FBI to revise its NICS procedures to include measures to
screen prospective firearms transferees and permittees against terrorist watch list records (KST,
formerly VGTOF).285 Effective February 2004, the Brady background check process was altered
to include a terrorist watch list check and to alert NICS staff when a prospective firearms
transferee or permit applicant is potentially identified as a known or suspected terrorist.286 In the
case of a watch list hit, NICS sends a delayed transfer (for up to three business days) response to
the querying FFL or POC. If NICS examiners cannot find a prohibiting factor, they immediately
contact the TSC and FBI Counterterrorism Division (CTD) to (1) validate the hit and (2) allow
FBI Special Agents in the field to check for possible prohibiting factors. If no prohibiting factors
are uncovered within the three-day period, a firearms dealer may proceed with the transaction at
his discretion, but FBI counterterrorism officials continue to work the case for up to 90 days,
during which time the background check is considered to be in an “open” status.287
If and when a transaction is approved, all identifying information submitted by or on behalf of the
transferee is destroyed within 24 hours.288 At the end of the 90-day period, if no prohibiting factor
has been reported to the NICS Center, all records related to the NICS transaction are destroyed
except for the NICS Transaction Number (NTN) and date of the transaction.289 If the FFL
proceeded with the transaction at his discretion following three business days and the applicant is
found to be disqualified, then the ATF will be notified and a firearms retrieval action will be
initiated in coordination with a JTTF.
NICS Record Retention
When Congress passed the Brady Act in 1994, the use of terrorist watch lists during firearms-
related background checks was not considered. As a consequence, the Attorney General has no
specific statutory authority to screen prospective gun buyers against terrorist watch list records.
Nevertheless, the FBI adopted procedures to do this because being on such a list suggests that
there may be an underlying factor that would bar a prospective background check applicant from
possessing a firearm. Hence, a possible issue for Congress could be whether terrorist watch list
checks should be incorporated statutorily into the Brady background checks for firearms.
In addition, a proviso attached to the FY2005 DOJ annual appropriation and every year thereafter
requires that NICS-generated approved firearms transaction records be destroyed within 24
hours.290 Nevertheless, as described above, the FBI has been retaining approved firearms
transaction records for up to 90 days, if those records are related to terrorist watch list hits.
Furthermore, information on the subjects of those checks are passed on to FBI investigators in the
285 Ibid., p. 11.
286 Dan Eggen, “FBI Gets More Time on Gun Buys,” Washington Post, November 22, 2003, p. A05.
287 U.S. Government Accountability Office, Gun Control and Terrorism: FBI Could Better Manage Firearm-Related
Background Checks Involving Terrorist Watch List Records, GAO-05-127, January 2005, p. 32.
288 28 C.F.R. §25.9(b)(1)(iii).
289 28 C.F.R. §25.9(b)(1)(ii).
290 For FY2009, see §511 of the Omnibus Appropriations Act, 2009, (P.L. 111-8, 123 Stat. 596). For FY2010, see also
§511 of the Consolidated Appropriations Act, 2010 (P.L. 111-117, 123 Stat. 3151). For FY2011, the Department of
Defense and Full-Year Continuing Appropriations Act, 2011 (P.L. 112-10) carried this requirement forward from
FY2010. For FY2012, The Minibus Appropriations Act (H.R. 2112) includes a §511 that not only includes the “24
hour” destruction requirement, but it also includes “futurity” language, which makes the provision permanent law, as
opposed to an annual appropriations restriction. The President has signed this bill into law (P.L. 112-55).
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field. While the NICS records are eventually destroyed for non-denials, it is unknown what
happens to the information generated by NICS-related terrorist watch list hits that are passed on
to the FBI CTD and Special Agents in the field, who are usually assigned to Joint Terrorism Task
Forces. Information about those firearms transactions is possibly recorded and stored
electronically in the FBI’s investigative case files.
In the Brady Act, however, there is a provision that prohibits the (1) transfer of any Brady system
record to any other federal or state agency, or (2) the use of the Brady system as a national
registry of firearms or firearms owners.291 In light of the former prohibition, a second issue for
Congress could be whether to grant the FBI greater authority to maintain and access NICS
records for the purposes of counterterrorism, or should existing statutory limitations that were
arguably designed to prevent the maintenance of and access to such records be strengthened. In
light of the first two issues, it follows that a third issue for Congress could be whether the
Attorney General should be given explicit authority to deny firearms transfers to watch-listed
persons on a case-by-case basis, or should all known or suspected terrorists be statutorily
prohibited from possessing firearms and explosives.292
Legislation in the 110th Congress and DOJ Draft Proposal
As described above, although watch-listed persons may be the subject of ongoing foreign
intelligence, national security, and criminal investigations, they may not be persons prohibited
from possessing firearms or explosives under current law. As subsequent events would indicate,
DOJ concluded that it was limited under current law in its authority to use terrorist watch lists as
part of the background check processes to deny firearms and explosives transfers to known or
suspected terrorists. In hearings before the House Committee on the Judiciary, Attorney General
291 For example, subsection 103(i) of the Brady Act (P.L. 103-159; 107 Stat. 1542) includes the following provision:
PROHIBITION RELATING TO ESTABLISHMENT OF REGISTRATION SYSTEMS WITH RESPECT TO
FIREARMS. – No department, agency, officer, or employee of the United States may – (1) require that any record or
portion thereof generated by the system established under this section be recorded at or transferred to a facility owned,
managed, or controlled by the United States or any State or political subdivision thereof; or (2) use the system
established under this section to establish any system for the registration of firearms, firearm owners, or firearm
transaction or disposition, except with respect to persons, prohibited by section 922 (g) or (n) of title 18, United States
Code or State law, from receiving a firearm.
292 In the 109th Congress (2005-2006), several pieces of legislation were introduced that were related to NICS
background checks and terrorist watch lists. In March 2005, Senator Lautenberg and Representative John Conyers
introduced the Terrorist Apprehension and Record Retention Act of 2005 (S. 578/H.R. 1225), a bill that would have (1)
required that the FBI, along with appropriate federal and state counterterrorism officials, be notified immediately when
NICS background checks indicated that a person seeking to obtain a firearm was a known or suspected terrorist; (2)
required that the FBI coordinate the response to such occurrences; and (3) authorized the retention of all related records
for at least 10 years.
In addition, Representative Peter King introduced H.R. 1168, a bill that would have required the Attorney General to
promulgate regulations to preserve records of terrorist- and gang-related matches during such background checks until
they had been provided to the FBI. Representative Carolyn McCarthy introduced H.R. 1195, a bill that would have
made it unlawful to transfer a firearm to a person who was on the “No Fly” lists maintained by TSA.
In summation, two of those proposals (S. 578/H.R. 1225 and H.R. 1168) addressed the retention of approved firearm
background check records that are related to terrorist watch list matches. The other bill (H.R. 1195) addressed the issue
of whether a known or suspected terrorist on one government watch list in particular should be barred from possessing
firearms. Neither of these bills, however, addressed the other underlying issue of how long the total number of
approved firearm transfer records should be retained and, if retained, whether they should be searched to determine
whether known or suspected terrorists had previously obtained firearms.
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Alberto Gonzales was questioned several times by Members of Congress about NICS procedures
and terrorist watch list hits.
Representative Chris Van Hollen: “Does it make sense to you that we stop a person from
boarding the airline in order to protect the public safety, [but] that an individual can turn
around, get in their car, go to the local gun shop and buy 20 semiautomatic assault
weapons?”
Attorney General Gonzales: “I think we should be doing everything we can to ensure that
people [who] are in fact terrorists shouldn’t have weapons in this country, the truth of the
matter is. But unless they are disabled [disqualified] from having a weapon under the statute
there’s not much that we can do other than maybe try and get them out of the country or, by
the way, to see if there’s any disability under the statute that would allow us to deny them a
firearm.”293
In 2005, then Attorney General Gonzales directed the DOJ to form a working group to review
federal gun laws—particularly in regard to NICS background checks—to examine whether
additional authority should be sought to prevent firearms transfers to known or suspected
terrorists.294 Nearly two years later, on April 25, 2007, DOJ proposed legislation that would give
the Attorney General authority to deny a firearm transfer, state-issued firearms permit, or
explosive license to any person found “to be or have been engaged in conduct constituting, in
preparation for, in aid of, or related to terrorism.”295 In the 110th Congress (2007-2008), Senator
Lautenberg and Representative King introduced this proposal (S. 1237/H.R. 2074), but no further
action was taken on either bill.
Legislation in the 111th Congress, GAO Follow-Up Report, and Senate Hearing
In the 111th Congress (2009-2010), several bills were introduced that would have addressed
firearms- and explosives-related background checks and terrorist watch list checks. Senator
Lautenberg and Representative King reintroduced their bill that was based on the DOJ draft
proposal (S. 1317 and H.R. 2159). Representative McCarthy reintroduced her bill, newly titled
the No Fly, No Buy Act of 2009, that would have allowed the Attorney General to deny firearms
to persons who are on the TSA’s No Fly terrorist watch list (H.R. 2401). And, Senator Lautenberg
introduced a bill that would have allowed the Attorney General to maintain NICS records on
approved transfers that were also related terrorist watch list hits (S. 2820). In addition, GAO
provided Congress with updated data on NICS-related terrorist watch list hits, lending renewed
impetus to the reintroduction of the DOJ draft proposal. And, the November 2009 Fort Hood
shootings renewed interest in terrorist watch list records and firearms-related background checks.
293 USA Patriot Act: A Review for the Purpose of Reauthorization: Hearing Before H. Comm. on the Judiciary, 109th
Cong. 81-82 (Apr. 6, 2005) (Testimony of Alberto Gonzales, Attorney General, Department of Justice).
294 U.S. Department of Justice, Office of Legislative Affairs, Letter to the Honorable Richard B. Cheney, President,
United States Senate, from Richard A. Hertling Acting Assistant Attorney General, February 13, 2007,
http://lautenberg.senate.gov/assets/terrorgap/Feb_2007_DOJ_Reply.pdf; Letter to Honorable Robert S. Mueller, III,
Director of the Federal Bureau of Investigation and Honrable Alberto Gonzales, Attorney General, November 1, 2006,
http://lautenberg.senate.gov/assets/terrorgap/2006_Lautenberg_Biden_Letter.pdf.
295 This proposal was drafted by the Department of Justice for consideration by Congress. See U.S. Dep’t of Justice,
Office of Legislative Affairs, Letter to the Honorable Richard B. Cheney, President, United States Senate, from
Richard A. Hertling Acting Assistant Attorney General, April 25, 2007, http://lautenberg.senate.gov/assets/terrorgap/
Cheney_DOJ_Drafted_Bill_Re_Dangerous_Terrorists_Act_2007.pdf.
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GAO Follow-Up Report on NICS-Related Terrorist Watch List Hits (May 2009)
Nearly four years after the first GAO report, GAO issued a follow-up report on NICS-related
terrorist watch list hits in May 2009. GAO reported that from February 2004 through February
2009 there were
• 963 NICS background checks that resulted in terrorist watch list matches and, of
those checks, about 90% (865) were allowed to proceed and a firearms or
explosives transfer may have occurred;
• however, only one explosives background check resulted in a proceed with
transaction; and
• of the 10% that resulted in denials (98), the denials were based on felony
convictions, illegal immigration status, fugitive from justice status, and the
unlawful use of, or addiction to, a controlled substance. All of these denials
involved firearms, as opposed to explosives.296
In this report, GAO also recommended that if Congress should move forward with legislation
providing the Attorney General with the discretionary authority to deny a firearms transfer or
permit, or an explosives license/permit, based on a terrorist watch list hit, then, consideration
should be given to including a provision in that legislation that would require the Attorney
General to promulgate guidelines that would delineate under what circumstances such authority
could be evoked. Following this report, Representative King and Senator Lautenberg
reintroduced the DOJ draft proposal as nearly identical bills (H.R. 2159 and S. 1317), which
supporters dubbed the “Terror Gap” proposal.
Senate Homeland Security and Governmental Affairs Committee Hearing
On May 5, 2010, the Senate Committee on Homeland Security and Governmental Affairs held a
hearing on “Terrorists and Guns: The Nature of the Threat and Proposed Reforms.” GAO testified
about measures taken by the FBI to improve firearms and explosives background checks for
counterterrorism purposes.297 GAO reported that from February 2004 through February 2010,
there were 1,228 positive encounters with individuals watch-listed as terrorists through NICS
related firearms or explosives transactions.298 These encounters involved 650 individuals because
450 of these individuals were involved in multiple transactions.299 Six of these individuals were
involved in 10 or more transactions.300 In 1,119 encounters, the transactions were allowed to
proceed.301 In 109 encounters, the transactions were denied.302 From March 2009 to February
296 U.S. Government Accountability Office, GAO-09-125R, Firearm and Explosive Background Checks Involving
Terrorist Watch List Records 8 (May 2009).
297 U.S. Government Accountability Office, Terrorist Watchlist Screening: FBI Has Enhanced Its Use of Information
from Firearm and Explosives Background Checks to Support Counterterrorism Efforts, GAO-10-703T, May 5, 2010.
298 Ibid. p. 5.
299 Ibid.
300 Ibid.
301 Ibid.
302 Ibid.
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2009, moreover, there were 272 positive encounters and all of the transactions were allowed to
proceed, including one that involved explosives.303
Senator Joseph Lieberman, chair of the committee, noted that firearms had been used in at least
two deadly terrorist plots perpetrated by Muslim extremists. Those incidents included the Fort
Hood shootings noted above and the June 2009 Little Rock, AR, recruiting center shootings,
where two U.S. servicemen were shot—one was killed and the other wounded. In several other
thwarted plots, conspirators were arrested for planning to use firearms to attack servicemen at
Fort Dix, NJ, in 2006 and the Quantico, VA, Marine base in 2009.304 Senator Lindsey Graham,
however, voiced opposition to the Terror Gap proposal. He maintained that denying a firearms
transfer based upon a felony conviction in a lawful court was fundamentally different from doing
so based on a terrorist watch list record that was created by an investigator or intelligence
analyst.305
Firearms-Related Terrorist Watch List Legislation in the 112th Congress
In the 112th Congress, Senator Lautenberg and Representative King have reintroduced the Terror
Gap proposal (S. 34 and H.R. 1506). As in the preceding two Congresses, these nearly identical
bills are based upon the April 2007 DOJ proposed legislative language.
Gun Trafficking-Related Proposals in the 112th Congress
In the 112th Congress, three proposals that address gun trafficking have been introduced (H.R.
2554, S. 1973, and H.R. 4190). While no further action has been taken on any of these proposals,
as described above, several Members have voice their support for such a proposal and the
Attorney General has indicated that the Administration would work with Congress to develop
such a proposal.
Stop Gun Trafficking and Strengthen Law Enforcement Act of 2011 (H.R.
2554)306
On July 15, 2011, Representative Carolyn Maloney introduced the Stop Gun Trafficking and
Strengthen Law Enforcement Act of 2011 (H.R. 2554). This proposal would amend the GCA to
establish a new federal “trafficking in firearms” offense under two provisions.
Under the first proposed provision, it would be unlawful for any person to receive, transfer, or
otherwise dispose of two or more firearms that have been shipped or transported in interstate or
foreign commerce (regardless of whether anything of value is exchanged), while knowing, or
having reasonable cause to believe, that one or more of those firearms would be transferred
303 Ibid., p. 2.
304 U.S. Senate, Senate Committee on Homeland Security and Governmental Affairs, Hearing on Terrorist Threat and
Guns, 111th Congress, 2nd Session, May 5, 2010 (CQ Congressional Transcripts).
305 Ibid.
306 Vivian S. Chu, CRS Legislative Attorney, contributed to the analysis of this bill.
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subsequently to another person whose receipt of a firearm would be unlawful, or who intends to
or will use, carry or possess, or dispose of the firearm unlawfully.307
Under the second proposed provision, it would be unlawful for any person knowingly to direct,
promote, or facilitate such conduct.308 Violations of either provision would be punishable by a
fine and/or not more than 20 years of imprisonment.309 Moreover, it would provide that any
person who acts in the capacity of an organizer, supervisory position, or any other management
position, in concert with five or more other persons would be subject to not more than 25 years 0f
imprisonment.310
In addition, under H.R. 2554 it would also be unlawful to conspire to violate the first provision,311
and the proposal would make such a conspiracy punishable by a fine and/or not more than 10
years of imprisonment.312
Gun Trafficking Prevention Act of 2011 (S. 1973)
On December 18, 2011, Senator Kirsten Gillibrand introduced the Gun Trafficking Prevention
Act of 2011 (S. 1973).313 This proposal would amend the Gun Control Act of 1968 (GCA) and
establish a new federal “trafficking in firearms” offense.314 Under this provision, it would be
unlawful for any person knowingly to
• ship, transport, transfer, or otherwise dispose of two or more firearms to another
person if he (the transferor/seller) knows or has reasonable cause to believe that
such actions would be, or would result in, a violation of any federal, state, or
local law that is punishable by a term of imprisonment exceeding one year
(excluding misdemeanors punishable by two years or less of imprisonment);
• receive two or more firearms from another person if he (the transferee/buyer)
knows or has reasonable cause to believe that such receipt would be, or would
result in, a violation of federal, state, or local law that is punishable by a term of
imprisonment exceeding one year (excluding misdemeanors punishable by two
years or less of imprisonment);
• make materially false statements to an FFL, and purchase, receive, or otherwise
acquire two or more firearms for, or on behalf of, any other person (a straw
purchase);315 and
307 H.R. 2554, §2-proposed 18 U.S.C. §932(a).
308 H.R. 2554, §2-proposed 18 U.S.C. §923(b).
309 H.R. 2554, §2-proposed 18 U.S.C. §924(a)(8)(A).
310 H.R. 2554, §2-proposed 18 U.S.C. §924(a)(8)(B).
311 H.R. 2554, §2-proposed 18 U.S.C. §923(c).
312 H.R. 2554, §2-proposed 18 U.S.C. §924(a)(8)(C).
313 Senator Gillibrand and Representative Carolyn McCarthy previously offered this proposal in the 111th Congress.
See the Gun Trafficking Prevention Act of 2009 (S. 2878/H.R. 4298).
314 S. 1973, §3-proposed 18 U.S.C. §932(a)(1).
315 NB: Unlike the current law statutory provisions related to straw purchases (18 U.S.C. §§922(a)(6) and
924(a)(1)(A)), this proposed provision does not include any evidentiary standard regarding the offender’s state of mind
(e.g., “knowingly” or “knows or has reasonable cause to believe”).
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• direct, promote, or facilitate the unlawful conduct described above.
Violations of any of the four subparagraphs described above would be punishable by a fine and/or
not more than 20 years of imprisonment for a violation.316 This provision would also establish an
affirmative defense to any prosecution under the subparagraphs described above if the firearm(s)
in question were transferred following a background check pursuant to 18 U.S.C. §922(t) that
showed that the “actual buyer” was not a prohibited person under either federal or state law.317
S. 1973 would also make it unlawful to conspire to commit such violations, and would make such
a conspiracy punishable at the same level as the actual criminal act(s), a fine and/or not more than
20 years of imprisonment. Regarding such conspiracies, the proposal would direct the U.S.
Sentencing Commission to recommend increased penalties for graduated offense levels for
violations that involve
• more than four, but fewer than 15 firearms;
• more than 14, but fewer than 25 firearms;
• more than 24, but fewer than 100 firearms; or
• more than 100 firearms.
It is noteworthy that the federal Sentencing Guidelines since 1987 have included a graduated
table of sentencing enhancements based on the number of firearms involved.318 It was last
amended in 2001 so that an offense level, used to determine the sentencing range, could be
enhanced if the unlawful activity involved 3-7 firearms, 8-24 firearms, 25-99 firearms, 100-199
firearms, or 200 or more firearms.319 As the Sentencing Guidelines attempt to provide the most
appropriate sentencing range based on the severity of the crime and the extent of the offender’s
criminal record, this bill would possibly impose a more severe sentencing range on a first-time or
low-level offender because it would take a lesser number of firearms to trigger a sentence
enhancement.320
In addition, S. 1973 includes several provisions designed to “crack down” on corrupt gun dealers,
who knowingly violate certain provisions of the GCA, National Firearms Act (NFA), and Arms
Export Control Act (AECA). With regard to firearms trace data, the proposal would require the
Attorney General to annually identify certain FFLs who posed a “heightened risk of firearms
being diverted to criminal use.” Such determinations would be made based on a “specific criteria”
that would include the following elements:
316 S. 1973, §3-proposed 18 U.S.C. §932(a)(2).
317 S. 1973, §3-proposed 18 U.S.C. §932(a)(3)(A). Arguably, the intent behind such a provision would be to encourage
background checks for private firearms transactions, for which there are no federal background checks or
corresponding recordkeeping requirements. Under federal law, private transactions between unlicensed persons are
only legal if they are conducted intrastate (within state lines). Interstate transfers between private persons must be
facilitated through at least one licensed dealer, that is, an FFL in the state of destination.
318 United States Sentencing Commission, Guidelines Manual, §2K2.3(b)(1) (October 1987).
319 United States Sentencing Commission, Guidelines Manual, §2K2.1(b)(1) (October 2001).
320 On November 1, 2011, sentencing enhancements adopted by the United States Sentencing Commission went into
effect. These sentencing enhancements address “straw purchases,” “semi automatic firearms capable of accepting large
capacity magazines,” and “cross-border trafficking in small arms or ammunition.” See 76 Federal Register 3193,
January 19, 2011; 76 Federal Register 24960, May 3, 2011; 76 Federal Register 58563, September 21, 2011; and
United States Sentencing Commission, Guidelines Manual, §2K2.1 (November 2011).
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• short “time-to-crime”321 for firearms traced to the dealer,
• incomplete crime trace results for firearms sold by a dealer,
• significant or frequent reports by a dealer of firearms losses or thefts, and
• other violations of federal firearms laws by a dealer.
Furthermore, it would increase penalties for certain recordkeeping violations from “not more
than” one year to “up to” three years of imprisonment. Finally, it would require GAO to conduct a
study on firearms that are either lost or stolen in transit between FFLs.
Straw Purchaser Penalty Enhancement Act (H.R. 4190)
On March 8, 2012, Representative Adam Schiff introduced the Straw Purchase Penalty
Enhancement Act (H.R. 4190). This bill would amend the GCA to create a mandatory minimum
sentence of two years imprisonment for any person who makes a false statement in violation of
either 18 U.S.C. §§922(a)(6) or 924(a)(1)(A) in the firearms transfer records (ATF Form 4473)
that FFLs are required to maintain under current law, if the transferee
• knows or has reason to believe that the false statement will further the transfer of
two or more firearms to a prohibited person; and
• has the intent to conceal the identity of the prohibited person to whom the firearm
is to be transferred.322
ATF Modernization Act
On at least two occasions during the 111th Congress, the Senate Judiciary Committee postponed
hearings on the Bureau of Alcohol, Tobacco, Firearms and Explosives Reform and Firearms
Modernization Act (S. 941). Senator Mike Crapo and Senator Patrick Leahy, chair of the
Judiciary Committee, introduced this bill on April 30, 2009. Representatives Steve King and Zack
Space introduced a companion bill (H.R. 2296). In regard to regulating federally licensed
firearms dealers, this proposal would have
• established a two tier, graduated penalty system for violations characterized as
being of a minor or serious nature;
• established a process by which ATF licensing decisions could be reviewed by an
administrative law judge;
• required the Attorney General to issue guidelines governing ATF investigations
of GCA violations; and
• defined the “willful” standard of intent to mean “knowingly and intentionally”
disregarding a “legal duty.”
321 Time-to-crime is the time that elapses between the first retail sale of a firearm by an FFL to a private person (non-
licensee) and the firearm’s recovery by authorities and the submission of a trace request by those authorities to the
ATF.
322 H.R. 4190; §2-proposed §924(q).
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Proponents for this proposal argue that these provisions would allow federal firearms licensees
greater opportunity to address non-substantive recordkeeping issues that under current law could
lead to the revocation of their licenses. Opponents argue that relaxing such provisions would
weaken ATF authority and efforts to reduce the number of “kitchen table top” dealers, who are
not substantively engaged in the business and, hence, are ineligible for such licenses, and “rogue”
dealers, who are not adequately controlling and accounting for their firearms inventories.323
Additional provisions in the bill would have addressed several other firearms-related issues
concerning machine guns, firearms parts, and handgun possession of a minor in the presence of a
parent or legal guardian. In the 112th Congress, Representative Steve King and Senator Mike
Crapo have reintroduced this proposal (H.R. 1093/S. 835).
Gun Shows and Private Firearms Transfers
Federal law does not regulate gun shows specifically. Federal law regulating firearms transfers,
however, is applicable to such transfers at gun shows. Federal firearms licensees—those licensed
by the federal government to manufacture, import, or deal in firearms—are required to conduct
background checks on non-licensed persons seeking to obtain firearms from them, by purchase or
exchange. Conversely, non-licensed persons—those persons who transfer firearms but who do not
meet the statutory test of being engaged in the business—are not required to conduct such checks.
To some, this may appear to be an incongruity in the law. Why, they ask, should licensees be
required to conduct background checks at gun shows but not non-licensees? To those opposed to
further federal regulation of firearms, it may appear to be a continuance of the status quo (i.e.,
non-interference by the federal government into private firearms transfers within state lines). On
the other hand, those seeking to increase federal regulation of firearms may view the absence of
background checks for firearms transfers between non-licensed/private persons as a loophole in
the law that needs to be closed. A possible issue for Congress is whether federal regulation of
firearms should be expanded to include private firearms transfers at gun shows and other similar
venues.
Among gun show-related proposals, there are two basic models. The first model is based on a bill
(S. 443) that was introduced in the 106th Congress by Senator Lautenberg, who successfully
offered this proposal as an amendment to the Senate-passed Violent and Repeat Juvenile Offender
Act (S. 254). Several Members introduced variations of the Lautenberg bill in the 107th Congress.
In the 108th Congress, Representative Conyers—ranking minority Member of the Judiciary
Committee—introduced H.R. 260, which was very similar to the Lautenberg bill. In addition,
former Senator Daschle introduced the Justice Enhancement and Domestic Security Act of 2003
(S. 22), which included gun show language that was similar to the Lautenberg bill. The second
model is based on a bill (S. 890) introduced in the 107th Congress by Senators McCain and
323 In the 109th Congress, Representative Howard Coble, chair of the House Judiciary Subcommittee on Crime,
Terrorism, and Homeland Security, and Representative Robert Scott, the subcommittee’s ranking minority Member,
introduced the ATFE Modernization and Reform Act of 2006 (H.R. 5092) on April 5, 2006. H.R. 5092 was approved
by the Crime subcommittee on May 3, 2006. The House Judiciary Committee ordered this bill reported on September
7, and a written report was filed on September 21 (H.Rept. 109-672). The House passed this bill on September 26,
2006, by a recorded vote of 277-131 (Roll no. 476), but no further action was taken on this bill. See also U.S. Congress,
House Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, The Bureau of
Alcohol, Tobacco, Firearms and Explosives (BATFE): Gun Show Enforcement (Parts 1 and 2), 109th Cong., 2nd sess.,
February 15 and 28, 2006, H.Hrg. 109-123 (Washington: GPO, 2006).
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Lieberman.324 In the 108th Congress, Senator McCain reintroduced this proposal as well (S.
1807). And, Representative Michael Castle introduced a similar gun show proposal (H.R. 3832).
Also in the 108th Congress, on March 2, 2004, during consideration of the Protection of Lawful
Commerce in Arms Act (S. 1805), the Senate passed a gun show-related amendment (S.Amdt.
2636) offered by Senator McCain by a yea-nay vote of 53-46 (Record Vote Number: 25).
However, the bill’s floor manager, Senator Larry Craig, pulled this bill from further floor
consideration before a final vote could be taken on the measure rather than risk passage of a bill
that included gun control and assault weapons ban provisions (the latter provision is described
below).
In the 109th Congress, Representative Castle reintroduced his proposal (H.R. 3540), but a similar
measure was not introduced in the Senate. In the 110th Congress, Representative Castle and
Senator Lautenberg reintroduced separate gun show proposals (H.R. 96 and S. 2577). Senator
Biden included similar provisions in the Crime Control and Prevention Act of 2007 (S. 2237). In
the 111th Congress, Senator Lautenberg and Representative Castle again reintroduced similar
measures that would have required background checks for private firearms transfers at guns
shows (S. 843 and H.R. 2324). In the 112th Congress, Senator Lautenberg has reintroduced this
measure (S. 35) and Representative McCarthy has introduced a companion measure (H.R. 591).
Expired Semiautomatic Assault Weapons Ban
In 1994, Congress banned for 10 years the possession, transfer, or further domestic manufacture
of semiautomatic assault weapons (SAWs) and large-capacity ammunition feeding devices
(LCAFDs) that hold more than 10 rounds that were not legally owned or available prior to the
date of enactment (September 13, 1994). The SAW-LCAFD ban expired on September 13, 2004.
The SAW ban statute classified a rifle as a semiautomatic assault weapon if it was able to accept a
detachable magazine and included two or more of the following five characteristics: (1) a folding
or telescoping stock, (2) a pistol grip, (3) a bayonet mount, (4) a muzzle flash suppressor or
threaded barrel capable of accepting such a suppressor, or (5) a grenade launcher.325 There were
similar definitions for pistols and shotguns that were classified as semiautomatic assault
weapons.326 Semiautomatic assault weapons that were legally owned prior to the ban were not
restricted and remained available for transfer under applicable federal and state laws. Opponents
of the ban argue that the statutorily defined characteristics of a semiautomatic assault weapon
were largely cosmetic, and that these weapons were potentially no more lethal than other
semiautomatic firearms that were designed to accept a detachable magazine and were equal or
superior in terms of ballistics and other performance characteristics. Proponents of the ban argue
that semiautomatic military-style firearms, particularly those capable of accepting large-capacity
ammunition feeding devices, had and have no place in the civilian gun stock.
During and following World War II, assault rifles were developed to provide a lighter infantry
weapon that could fire more rounds, more rapidly (increased capacity and rate of fire). To
increase capacity of fire, detachable self-feeding magazines were developed. These rifles were
324 For further information, see out-of-print CRS Report RL32249, Gun Control: Proposals to Regulate Gun Shows, by
William J. Krouse and T.J. Halstead (available upon request).
325 18 U.S.C. §921(a)(30)(B).
326 18 U.S.C. §921(a)(30)(C) and (D).
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usually designed to be fired in fully automatic mode, meaning that once the trigger is pulled, the
weapon continues to fire rapidly until all the rounds in the magazine are expended or the trigger is
released. Often these rifles were also designed with a “select fire” feature that allowed them to be
fired in short bursts (e.g., three rounds per pull of the trigger), or in semiautomatic mode (i.e., one
round per pull of the trigger), as well as in fully automatic mode. By comparison, semiautomatic
firearms, including semiautomatic assault weapons, fire one round per pull of the trigger.
According to a 1997 survey of 203,300 state and federal prisoners who had been armed during
the commission of the crimes for which they were incarcerated, fewer than 1 in 50, or less than
2%, used, carried, or possessed a semiautomatic assault weapon or machine gun.327 Under current
law, any firearm that can be fired in fully automatic mode or in multi-round bursts is classified as
a “machine gun” and must be registered with the federal government under the National Firearms
Act of 1934. Furthermore, it is illegal to assemble a machine gun with legally or illegally
obtained parts. The population of legally owned machine guns has been frozen since 1986, and
they were not covered by the semiautomatic assault weapons ban.
In the 108th Congress, proposals were introduced to extend or make permanent the ban, whereas
other proposals were made to modify the definition of “semiautomatic assault weapon” to cover a
greater number of firearms by reducing the number of features that would constitute such
firearms, and expand the list of certain makes and models of firearms that are statutorily
enumerated as banned. A proposal (S. 1034) introduced by Senator Dianne Feinstein would have
made the ban permanent as would have a proposal (H.R. 2038/S. 1431) introduced by
Representative McCarthy and Senator Lautenberg. The latter measure, however, would have
modified the definition and expanded the list of banned weapons. Senator Feinstein also
introduced measures that would have extended the ban for 10 years (S. 2109/S. 2498). In
addition, on March 2, 2004, the Senate passed an amendment to the gun industry liability bill (S.
1805) that would have extended the ban for 10 years, but the Senate did not pass this bill.328
In the 109th Congress, Senator Dianne Feinstein introduced a bill that would have reinstated
previous law for 10 years (S. 620). Representative McCarthy and Senator Lautenberg
reintroduced their bills to make the ban permanent (H.R. 1312/S. 645).
In the 110th Congress, Representative McCarthy reintroduced a similar proposal (H.R. 1022) and
another measure (H.R. 1859) that would prohibit the transfer of a semiautomatic assault weapon
with a large-capacity ammunition feeding device, among other things. Representative Mark
Steven Kirk introduced the Assault Weapons Ban Reauthorization Act of 2008 (H.R. 6257).
Senator Biden included provisions to reauthorize the ban in the Crime Control and Prevention Act
of 2007 (S. 2237).
In the wake of the Tucson shootings, Representative McCarthy introduced a measure that would
reinstate the large capacity ammunition feeding device ban (H.R. 308). Senator Lautenberg
introduced a similar measure (S. 32).
327 For further information, see Caroline Wolf Harlow, Firearm Use by Offenders, at
http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=940.
328 For further information, see CRS Report RL32077, The Assault Weapons Ban: Legal Challenges and Legislative
Issues, by T. J. Halstead; and CRS Report RL32585, Semiautomatic Assault Weapons Ban, by William J. Krouse.
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Long-Range .50 Caliber Rifles329
In the 109th Congress, legislation was introduced to regulate more strictly certain .50 caliber
rifles. Some of these rifles are chambered to fire a relatively large round originally designed for
the Browning Machine Gun (BMG) and have been adopted by the U.S. military as long-range
“sniper” rifles. Gun control advocates argue that these firearms have little sporting, hunting, or
recreational purpose. They maintain that these rifles could be used to shoot down aircraft, rupture
pressurized chemical tanks, or penetrate armored personnel carriers. Gun control opponents
counter that these rifles are expensive, cumbersome, and rarely, if ever, used to commit crimes.
Furthermore, they maintain that these rifles were first developed for long-range marksmanship
competitions and then adopted by the military as sniper rifles.
The Fifty Caliber Sniper Weapons Regulation Act of 2005 (S. 935), introduced by Senator Dianne
Feinstein, would have amended the National Firearms Act (NFA)330 to regulate “.50 caliber sniper
weapons” in the same fashion as short-barreled shotguns and silencers by levying taxes on the
manufacture and transfer of such firearms and by requiring owner and firearms registration. In the
110th Congress, Senator Feinstein introduced a similar measure (S. 1331).
The other proposal introduced by Representative James Moran, the 50 Caliber Sniper Rifle
Reduction Act (H.R. 654), also would have amended the NFA to include those weapons, but it
would have also amended the Gun Control Act331 to effectively freeze the population of those
weapons legally available to private persons and to prohibit any further transfer of those firearms.
In other words, H.R. 654 would have grandfathered-in existing rifles but would have banned their
further transfer. Consequently, the proposal would have eventually eliminated those rifles all
together from the civilian gun stock. It would have been likely that covered .50 caliber rifles
would have had to be destroyed or handed over to the ATF as contraband when the legal firearm
owner died or wanted to give up the firearm. H.R. 654 included no compensation provision for
rifles destroyed or handed over to the federal government.
Furthermore, both proposals (S. 935 and H.R. 654) would have defined “.50 caliber sniper
weapon” to mean “a rifle capable of firing center-fire cartridge in .50 caliber, .50 BMG caliber,
any other variant of .50 caliber or any metric equivalent of such calibers.” Many rifles, and even
some handguns, are chambered to fire .50 caliber ammunition, meaning the projectile is about
one-half inch in diameter. Opponents of this legislation note that this definition was very broad
and would have likely covered .50 caliber rifles that would not be considered “long-range” or
“sniper” rifles. The .50 BMG caliber round, on the other hand, is an exceptionally large cartridge
(projectile and casing), which was once used almost exclusively as a heavy machine gun round.
Representative Moran also offered an amendment to the FY2006 Department of Commerce
appropriations bill (H.R. 2862) that would have prohibited the use of funding provided under that
bill to process licenses to export .50 caliber rifles, but that amendment was not adopted by the
House.
329 For further information, see CRS Report RS22151, Long-Range Fifty Caliber Rifles: Should They Be More Strictly
Regulated?, by William J. Krouse.
330 26 U.S.C., Chapter 53, §5801 et seq.
331 18 U.S.C., Chapter 44, §921 et seq.
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Appendix A. Legislation in the 111th Congress
The 111th Congress revisited several issues previously considered in the 110th Congress. For
example, Congress considered amendments to DC voting rights bills that would have further
overturned DC gun laws (S. 160 and H.R. 157). In addition, Congress passed several other gun-
related provisions included in enacted legislation that address
• carrying firearms on public lands (P.L. 111-24),
• transporting firearms in passenger luggage on Amtrak trains (P.L. 111-117),
• widening law enforcement off-duty concealed carry privileges (P.L. 111-272),
• prohibiting higher health care premiums for gun owners (P.L. 111-148), and
• prohibiting the Department of Defense (DOD) from regulating firearms privately
owned but lawfully held by service members, DOD civilian personnel, and their
family members off-base (P.L. 111-383).
The 111th Congress also reconsidered or newly considered several other provisions that were not
enacted:
• gun rights restoration for veterans previously deemed to be mentally incompetent
(S. 669 and H.R. 6132),
• interstate reciprocity of concealed carry privileges (S. 1390 and S. 845),
• firearms possession in public housing (H.R. 3045 and H.R. 4868), and
• the treatment of firearms under bankruptcy proceedings (H.R. 5827/S. 3654).
Constitutionality of DC Handgun Ban and Related Legislation
On June 26, 2008, the Supreme Court issued its decision in District of Columbia v. Heller on the
constitutionality of a DC law that banned handguns for 32 years, among other things. Passed by
the DC Council on June 26, 1976, the DC handgun ban required that all firearms within the
District be registered and all owners be licensed, and it prohibited the registration of handguns
after September 24, 1976. In a 5-4 decision, the Supreme Court found the handgun ban to be
unconstitutional because it violated an individual’s right under the Second Amendment to possess
a handgun in his home for lawful purposes such as self-defense.332
DC Council Passes Emergency Law
On July 15, 2008, the DC Council passed a temporary, emergency law that allowed residents
through a registration/certificate process to keep a handgun in their home as long as that firearm
had a capacity of fewer than 12 rounds of ammunition and was not loadable from a magazine in
the handgrip, which in effect limited legal handguns under the temporary law to revolvers as
opposed to semiautomatic pistols. The emergency law also continued to require that handguns be
332 For legal analysis, see CRS Report R41750, The Second Amendment: An Overview of District of Columbia v. Heller
and McDonald v. City of Chicago, by Vivian S. Chu.
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kept unloaded and disassembled, or trigger locked, unless an attack in a home was imminent or
underway. Pro-gun groups immediately criticized the council’s emergency law for not being in
the “spirit” of the Supreme Court’s decision because it continued to ban semiautomatic pistols
and did not fully roll back the trigger lock requirement. Since the initial emergency law was
passed, the DC Council has passed several other pieces of similar temporary, emergency laws
related to the Heller decision. These laws include new firearms-related provisions that were also
included in permanent legislation passed by the DC Council that is described below.
Legislation Related to DC Gun Laws333
Several Members of Congress were dissatisfied with the DC Council’s temporary law. On July
24, 2008, Representative Mike Ross filed a motion to discharge the Rules Committee from
consideration of H.Res. 1331, a resolution that would have provided for the consideration of a bill
to restore Second Amendment rights in the District of Columbia (H.R. 1399).334 This bill was
similar to previous bills introduced by Representative Mark Souder and Senators Kay Bailey
Hutchison and Orrin Hatch in previous congresses. Representative Ross introduced H.R. 1399 in
the 110th Congress for himself and Representative Souder on March 27, 2007, and Senator
Hutchison introduced a companion measure (S. 1001) on March 28, 2007.
In the 110th Congress, Representative Travis Childers introduced a similar bill (H.R. 6691) on
July 31, 2008. All three bills would have amended the DC Code to
• limit the Council’s authority to regulate firearms;
• remove semiautomatic firearms that can fire more than 12 rounds without
manually reloading from the definition of “machine gun”;
• amend the registration requirements so that they do not apply to handguns, but
only to sawed-off shotguns, machine guns, and short-barreled rifles;
• remove restrictions on ammunition possession;
• repeal requirements that DC residents keep firearms in their possession unloaded
and disassembled, or bound by a trigger lock;
• repeal firearms registration requirements generally; and
• repeal certain criminal penalties for possessing or carrying unregistered firearms.
Representatives John Dingell, John Tanner, and Mike Ross reportedly negotiated an agreement
with the House leadership to consider H.R. 6691 in early September.335 H.R. 6691 included
language that stated as a congressional finding that DC officials “have indicated their intention to
333 Foreshadowing the contentiousness of the DC gun ban issue, Representative Lamar Smith had previously scuttled
the District of Columbia House Voting Rights Act of 2007 (H.R. 1433) on March 22, 2007, when he offered a motion
to recommit the bill to the House Oversight and Government Reform Committee for consideration of an amendment to
repeal portions of the DC handgun ban. Rather than vote on the motion, debate on H.R. 1433 was postponed
indefinitely. Jonathan Allen, “Gun-Rights Gambit Sidetracks D.C. House Vote,” CQ Today, March 22, 2007; and for
further information on H.R. 1433, see CRS Report RL33830, District of Columbia Voting Representation in Congress:
An Analysis of Legislative Proposals, by Eugene Boyd.
334 Under the Home Rule Act (P.L. 93-198), Congress has reserved for itself the authority to legislate for the District.
335 Keith Perine and Seth Stern, “House Democrats Plan Vote To Roll Back D.C. Gun Laws,” CQ Today Online News,
August 5, 2008.
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continue to unduly restrict lawful firearm possession and use by citizens of the District.” H.R.
6691 also included a provision that would have allowed DC residents to purchase firearms from
federally licensed gun dealers in Virginia and Maryland.
On September 9, 2008, the House Oversight and Government Reform Committee held a hearing
on the possible effects H.R. 6691 might have on the District. On the same day, Representative
Eleanor Holmes Norton introduced H.R. 6842, a bill that would have required the DC mayor and
Council to ensure that regulations were promulgated that would have been consistent with the
Heller decision. On September 15, 2008, the House Oversight and Government Reform
Committee reported H.R. 6842 (H.Rept. 110-843). On September 17, 2008, however, the House
amended H.R. 6842 with the text of H.R. 6691 and passed the Childers’ bill.
DC Council Passes Permanent Legislation
On December 16, 2008, the DC Council passed the Firearms Control Amendment Act of 2008
(FCAA; B17-0843) and the Inoperable Pistol Amendment Act of 2008 (IPAA; B17-0593).336
Mayor Adrian Fenty signed the FCAA into law on January 28, 2009 (L17-0372). This bill was
transmitted to Congress on February 10, 2009. From the day of transmittal, Congress had 30
legislative days to review this bill under the DC Home Rule Act (according to the District of
Columbia). Among other things, this law amends the DC Code to
• adopt the federal definition of “machine gun,” which does not include
semiautomatic pistols;
• prohibit the possession and registration of “assault weapons” and rifles capable
of firing .50 caliber Browning Machine Gun (BMG) rounds; and
• require that all firearms made after January 1, 2011, be microstamped.337
Many provisions of this law, including the assault weapons ban and the microstamping
provisions, were modeled after California state law.
Mayor Fenty signed IPAA into law on January 16, 2009 (L17-0388). It was transmitted to
Congress on February 4, 2009. Because the bill includes penalty provisions, Congress had 60
legislative days to review this bill under the DC Home Rule Act. Among other things, this
permanent legislation amends the DC Code to
• criminalize the possession of inoperable firearms;
• criminalize the discharge of firearms;
• prohibit carrying a rifle or shotgun;
• allow for the transportation of firearms under the same conditions as permitted
under federal law; and
336 For further information on these bills, as well as the Ensign amendment, see CRS Report R40474, DC Gun Laws
and Proposed Amendments, by Vivian S. Chu.
337 Microstamping is an emerging technology by which a firearm’s serial number is engraved microscopically with a
laser onto the breech face or firing pin of a firearm. When the firearm is fired, the serial number is “stamped” upon the
cartridge casing. If a microstamped cartridge is subsequently recovered at a crime scene, the firearm’s serial number
could potentially yield additional leads for law enforcement.
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• change the waiting period to purchase a firearm from 48 hours to 10 days.
DC Voting Rights and Gun Laws in the 111th Congress
On February 26, 2009, Senator John Ensign successfully amended (S.Amdt. 576) the District of
Columbia House Voting Rights Act of 2009 (S. 160) by a yea-nay vote of 62-36 (Record Vote
Number 72) with language that would have overturned certain DC guns laws and prevent the
District from legislating in these areas in the future. The Senate passed this bill on the same day
by a yea-nay vote of 61-37 (Record Vote Number 73).338 This bill was tabled while the House
leadership attempted to negotiate an end to the impasse over the DC gun laws and bring its
version of the DC voting rights bill (H.R. 157) to the floor.339 In April 2010, efforts were made to
revive the voting rights bill, but some Members prepared amendments to overturn the city’s gun
laws. Consequently, Members managing the DC voting rights bill postponed further consideration
rather than risk passage of amendments that would overturn the city’s gun laws.340 Senator John
McCain and Representative Travis Childers introduced their amendments as stand-alone bills, the
Second Amendment Enforcement Act (S. 3265/H.R. 5162). In the 112th Congress, Representative
Mike Ross has introduced a proposal to restore Second Amendment rights in the District of
Columbia (H.R. 645).
Constitutionality of the Chicago Handgun Ban
On June 28, 2010, the Supreme Court issued its 5-4 decision in McDonald v. City of Chicago and
found that the individual right to lawfully possess a firearm for the purposes of self-defense under
the Second Amendment applied to the states by way of the Fourteenth Amendment.341 Although
the McDonald decision arguably nullified the Chicago handgun ban by limiting a state, city, or
local government’s ability to prohibit handguns outright, it does not delineate what would
constitute permissible gun control laws under the Second Amendment. Indeed, the Supreme Court
remanded the Chicago handgun ban back to the Seventh Circuit Court of Appeals for a rehearing.
Consequently, the delineation of permissible gun laws will likely be developed in future cases.
Nevertheless, the city of Chicago has reportedly adopted handgun regulations that are similar to
those adopted by the District of Columbia. These regulations allow eligible residents to register
one operable handgun per household, but in most cases that handgun must be locked and rendered
inoperable, and it cannot be carried outside of the home.342
Public Lands and Firearms Possession and Use
In the 111th Congress, Senator Tom Coburn successfully amended the Credit CARD Act of 2009
(H.R. 627) with a provision (S.Amdt. 1067) that allows private persons to carry firearms in
national parks and wildlife refuges (effective February 22, 2010). This amendment passed by a
338 For more information, see CRS Report R40474, DC Gun Laws and Proposed Amendments, by Vivian S. Chu.
339 Edward Epstein and Michael Teitelbaum, “Hoyer Expresses Optimism About Chance D.C. Vote Bill Will Come to
Floor,” CQ Today, March 24, 2009.
340 Ann E. Marimow and Ben Pershing, “District Voting Rights Scuttled: ‘The Price Was Too High’ Amendment
Would Have Repealed D.C. Gun Laws,” Washington Post, April 21, 2010, p. B01.
341 For legal analysis, see CRS Report R41750, The Second Amendment: An Overview of District of Columbia v. Heller
and McDonald v. City of Chicago, by Vivian S. Chu.
342 Dave Workman, “Chicago Adopts New Gun Regs, Lawsuit Filed,” New Gun Week, August 1, 2010, p. 1.
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vote of 67 to 29 (Record Vote Number 188) on May 12, 2009. Under H.Res. 456, the House voted
on the Coburn amendment as a separate measure and passed it by a vote of 279 to 147. President
Barack Obama signed H.R. 627 into law on May 22, 2009 (P.L. 111-24).
Previously, in the 110th Congress during consideration of a public land bill (S. 2483), Senator
Coburn offered but later withdrew an amendment (S.Amdt. 3967) that would have overturned
federal regulations that prohibit visitors to parks and wildlife refuges managed by the National
Park Service (NPS)343 and Fish and Wildlife Service (FWS)344 from possessing operable and
loaded firearms. While these regulations were last revised substantively in 1981 and 1983, similar
firearms restrictions were promulgated in the 1930s in an effort to curb poaching and other illegal
activities. There are exceptions for hunting and marksmanship under current law. Since the 1980s,
however, many states have passed laws that allow persons to carry concealed handguns for
personal protection. Although 48 states have “concealed carry” laws, only 24 of those states
reportedly allow concealed handguns to be carried in state parks.345
On April 30, 2008, in part at the urging of some Members of Congress, the Department of the
Interior (DOI) published proposed regulations that would authorize the possession of loaded and
concealed firearms, as long as carrying those firearms in that fashion would be legal under the
laws of the states where the public lands are located.346 While the initial comment period was
scheduled to end on June 30, 2008, it was extended until August 8, 2008.347 DOI reported
receiving approximately 90,000 comments on those proposed regulations. Final regulations were
issued on December 10, 2008.348 Those regulations took effect on January 9, 2009. However, on
March 19, a U.S. District Judge issued a preliminary injunction on the regulations in a lawsuit
brought by three groups: the Brady Campaign to Prevent Gun Violence, the National Parks
Conservation Association, and the Coalition of National Park Service Retirees.349 On March 20,
the NRA filed a notice to appeal in Federal District Court in opposition to the preliminary
injunction.
Senator Coburn also introduced a bill, the Protecting Americans from Violent Crime Act of 2008
(S. 2619), that was very similar to his proposed amendment and DOI’s proposed regulations.
Supporters of those proposals pointed to a reported rise in illegal activities and violent crime on
public lands. Opponents argued that the risk of a violent crime encounter in National Parks and
Wildlife Refuges was negligible.350 They further argued that allowing others to carry loaded and
concealed handguns on their person would make them less safe. In the 111th Congress, similar
343 36 C.F.R. Part 2.
344 50 C.F.R. Part 27.
345 Warren Richey, “Bid to Allow Guns in National Parks,” Christian Science Monitor, August 19, 2008, p. 3.
346 73 Federal Register 23388.
347 73 Federal Register 39272.
348 Department of the Interior, National Park Service, “General Regulations for Areas Administered by the National
Park Service and the Fish and Wildlife Service,” 73 Federal Register 74966-74972, December 10, 2008.
349 Juliet Eilperin and Del Quentin Wilber, “Judge Blocks Rule Permitting Concealed Guns in U.S. Parks,” Washington
Post, March 20, 2009, p. A09.
350 CRS compilation of FBI Uniform Crime Reports data show that from 2002 through 2006, there were 15 murders
and non-negligent homicides reported by the FWS and 48 reported by the NPS. However, FWS reports all crimes
encountered by its agents, whether or not they occurred on refuge land. It is difficult to determine how many of the 15
murders occurred on refuges.
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measures were introduced by Representative Doc Hastings and Senator Mike Crapo (H.R.
1684/S. 816).
Amtrak Passengers and Firearms
On September 16, 2010, Senator Roger Wicker amended the FY2010 Transportation-HUD
appropriations bill (H.R. 3288) with language to authorize private persons to carry firearms and
ammunition in their checked luggage on Amtrak trains. The Wicker amendment (S.Amdt. 2366)
passed by a yea-nay vote, 68-30 (Record Vote Number 279). On September 17, 2009, the Senate
passed this bill. Later, H.R. 3288 became the vehicle for the Consolidated Appropriations Act,
2010. Conferees retained the Wicker language in the conference agreement (H.Rept. 111-366),
and the President signed H.R. 3288 into law (P.L. 111-117) on December 16, 2009. Section 159 of
the act requires Amtrak, with the Transportation Security Administration, to report to Congress
(within six months of enactment—June 16, 2010) on proposed guidance and procedures to
implement a “checked firearms program.” The reported guidance and procedures are to be
implemented within one year of enactment. The act further requires that checked firearms be
placed in a locked, hard-sided container, and that passengers planning to carry firearms in their
luggage declare their intentions to Amtrak at the time they make their reservations or within 24
hours of departure. Similar requirements are set out for placing ammunition in checked luggage.
Law Enforcement Officers Safety Act Amendments
The 111th Congress passed amendments to clarify and expand eligibility under the Law
Enforcement Officers Safety Act (LEOSA; P.L. 108-277). This law authorizes certain qualified
active-duty and retired law enforcement officers to carry concealed firearms across state lines,
while off duty. Senator Leahy, the Judiciary Committee chair, introduced the amendments as a
stand-alone bill (S. 1132). In the House, Representative J. Randy Forbes introduced a similar
measure (H.R. 3752). The Senate Judiciary Committee approved S. 1132 on March 11, 2010, and
the Senate passed the bill on May 13, 2010. The Senate Judiciary Committee filed a report on this
bill on July 27, 2010 (S.Rept. 111-233). The House passed S. 1132 on September 29, 2010. The
President signed S. 1132 into law on October 12, 2010 (P.L. 111-272). The 2010 LEOSA
amendments (1) clarify that certain Amtrak and executive branch law enforcement officers are
eligible for concealed carry privileges under P.L. 108-277, (2) reduce the length of service
criterion for eligibility under that law from 15 to 10 years, and (3) clarify other provisions of the
law related to certification and credentialing.
Previously, in the 110th Congress, the Senate Judiciary Committee reported a similar bill (S. 376;
S.Rept. 110-150) on September 5, 2007. This bill was also introduced by Senator Leahy.
Representative Forbes introduced a similar bill (H.R. 2726). The language of S. 376 was
incorporated into S. 2084, the School Safety and Law Enforcement Improvement Act of 2007,
when that bill was reported on September 21, 2007 (S.Rept. 110-183). In the 109th Congress, the
Senate amended H.R. 1751, the Court Security Improvement Act of 2006, with similar LEOSA
provisions and passed that measure.
Patient Protection and Affordable Care Act and Firearms
The 111th Congress included language in the Patient Protection and Affordable Care Act (PPACA;
P.L. 111-148) that prohibits data collection on gun ownership or higher premiums for gun owners
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under wellness program provisions. The catalyst for this language was an “action alert” that Gun
Owners of America (GOA) sent out, urging its membership to oppose a Senate health care reform
proposal released on November 18, 2009. The GOA argued that the Senate proposal, along with
other enacted provisions of law, would have required doctors to provide “gun-related health data”
to a computerized national health information network.351 With such information, the GOA
maintained that the federal government would deny individuals the ability to obtain a firearm or
firearms permit. Of particular concern for the GOA were mental health records. Another concern
raised by the GOA was the possibility that insurance providers under the Senate proposal would
have been required or prompted to raise premiums for persons who exhibited arguably “unhealthy
behaviors,” such as firearms ownership.
Although the Senate proposal included provisions to amend the Health Insurance Portability and
Accountability Act (HIPAA) that addressed electronic data transaction standards for national
health information sharing purposes to facilitate eligibility determinations and health care plan
enrollments, it did not include any provisions that would have directly required the national
collection of “gun-related health data.” Without a clear directive, it is debatable whether the
Department of Health and Human Services (HHS) would have undertaken such data collection on
firearms ownership and possession given other provisions in current law, albeit in different
statutory contexts, that prohibit the establishment of a registry of privately held firearms or
firearms owners.352 Dr. David Blumenthal, the National Coordinator for Health Information
Technology at HHS, said that the current system does not include a database into which such
information could be fed, nor are there plans to create one.353 Blumenthal added that “we don’t
want to do it and it’s not authorized.”354
Nor did the Senate proposal include any provisions that would have required or prompted
insurance providers to raise premiums on gun owners. On the other hand, the Senate legislation
did include provisions that would have codified and amended HIPAA wellness program
provisions that would have addressed employer-based incentives for healthy behavior to reduce
health care costs. Arguably, these provisions would not have precluded the Secretary of Health
and Human Services from promulgating regulations that addressed risks associated with firearms
ownership, possession, use, and storage. However, such regulations, if proposed, would have
likely been tested in administrative and judicial review as to their impact on Second Amendment
rights. Nonetheless, Senate legislators included new language in their Patient Protection and
Affordable Care proposal, which the Senate passed as an amendment to H.R. 3590 on December
24, 2009.355
The Senate language, which was included in P.L. 111-148, prohibits any wellness and health
promotion activity sponsored under the act’s HIPAA amendments from requiring the disclosure or
collection of any information about the presence or storage of a lawfully possessed firearm or
351 Shalaigh Murray, “Public Option at Center of Debate; Democratic Dissent Reid Must Find Compromise to Pass
Health-Care Bill,” Washington Post, November 23, 2009, p. A01.
352 In the Brady Handgun Violence Prevention Act (P.L. 103-159, November 30, 1993, 107 Stat. 1542), Congress
included a provision (§103(i)) that prohibits any department, agency, officer, or employee of the United States from
establishing a registration system with respect to firearms, firearms owners, or firearms transactions/dispositions that
would use records generated by the National Instant Criminal Background Check System (NICS).
353 Peter Overby, “A Vote For Health Care, A Vote Against Gun Rights?,” National Public Radio, November 25, 2009.
354 Ibid.
355 See proposed §2717 as included in §1001 and amended by §10101 in the Senate-passed H.R. 3590.
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ammunition in the residence or on the property of an individual, or the lawful use, possession, or
storage of a firearm or ammunition by an individual. The language also states that nothing in the
bill would be construed to authorize any data collection on the lawful ownership, possession, use,
or storage of firearms or ammunition, or to maintain records on individual ownership or
possession of a firearm or ammunition. In addition, with regard to any health insurance to be
provided under the act, this provision prohibits providers from increasing premium rates; denying
coverage; or reducing or withholding discounts, rebates, or rewards for participation in a wellness
program because of an individual’s lawful ownership, possession, use, or storage of a firearm or
ammunition. Finally, under the data collection activities authorized under the act, the language
states that no individual would be required to disclose any information relating to the lawful
ownership, possession, use, or storage of a firearm or ammunition.
Guns Held Off-Base and Surplus Ammunition and Shell Casings
In addition, two firearms-related provisions were included in the Ike Skelton National Defense
Authorization Act for Fiscal Year 2011 (P.L. 111-383). One provision (§1062), sponsored by
Senator Jim Inhofe, prohibits the Secretary of Defense, and by implication base commanders,
from collecting any information on privately owned firearms kept by military personnel,
Department of Defense civilian employees, and their family members off-base. Another provision
(§346) sponsored by Senators Jon Tester and Max Baucus addresses the demilitarization of small
arms ammunition of several types and calibers, including spent shell casings, which is commonly
sold as military surplus.
NICS Improvement Amendments Act of 2007356
In the wake of the Virginia Tech tragedy,357 the 110th Congress passed legislation to improve
firearms-related background checks. The Senate amended and passed the NICS Improvement
Amendments Act of 2007 (H.R. 2640) following lengthy negotiations, as did the House, on
December 19, 2007, clearing that bill for the President’s signature. President Bush signed the bill
into law on January 8, 2008 (P.L. 110-180). This law amends and strengthens a provision of the
Brady Handgun Violence Prevention Act (Brady Act; P.L. 103-159) that requires federal agencies
to provide, and the Attorney General to secure, any government records with information relevant
to determining the eligibility of a person to receive a firearm for inclusion in databases queried by
NICS.
The act also includes provisions designed to encourage states, tribes, and territories (states) to
make available to the Attorney General certain records related to persons who are disqualified
from acquiring a firearm, particularly records related to domestic violence misdemeanor
convictions and restraining orders, as well as mental health adjudications. To accomplish this, the
act establishes a framework of incentives and disincentives, whereby the Attorney General is
authorized to either waive a grant match requirement or reduce a law enforcement assistance
356 As described in greater detail above, the National Instant Criminal Background Check System (NICS) is
administered by the FBI, so that federally licensed gun dealers can process a background check to determine a
customer’s eligibility to possess a firearm before proceeding with a transaction.
357 On April 16, 2007, a student at Virginia Polytechnic Institute and State University shot 32 people to death and
wounded many others.
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grant depending upon a state’s compliance with the act’s goals of bringing firearms-related
disqualifying records online.
The original proposal (H.R. 2640) was introduced by Representative McCarthy and co-sponsored
by Representative John Dingell. As passed by the House by a voice vote on June 13, 2007, H.R.
2640 reportedly reflected a compromise between groups favoring and opposing greater gun
control.358 The Senate Judiciary Committee approved similar, but not identical, NICS
improvement amendments as part of the School Safety and Law Enforcement Improvement Act
of 2004 on August 2, 2007, and reported this bill on September 21, 2007 (S. 2084; S.Rept. 110-
183). The Senate Judiciary Committee included five other measures in S. 2084. With some
modification, those measures included the School Safety Improvements Act (S. 1217), the Equity
in Law Enforcement Act (S. 1448), the PRECAUTION Act (S. 1521), the Terrorist Hoax
Improvements Act (S. 735), and the Law Enforcement Officers Safety Act of 2007 (LEOSA; S.
376). Support for the NICS improvement and the LEOSA amendments (described below) in S.
2084 was reportedly divided and uneven, however.359 Citing privacy and cost issues related to the
NICS amendments, Senator Coburn reportedly placed a hold on that legislation.360
In addition, some opposition to NICS improvement amendments had coalesced around an
assertion made by Larry Pratt of Gun Owners of America that, under these amendments, any
veteran who was or had been diagnosed with Posttraumatic Stress Disorder (PTSD)361 and was
found to be a “danger to himself or others would have his gun rights taken away ... forever.”362
Under current law, however, any veteran or other VA beneficiary who is adjudicated or
determined to be a mental defective, because he poses a danger to himself or others, or is
incapable of conducting his day-to-day affairs, is ineligible to possess a firearm. A diagnosis of
PTSD in and of itself is not a disqualifying factor for the purposes of gun control under the NICS
improvement amendments or previous law. Under the enacted NICS improvement amendments,
VA beneficiaries who have been determined to be mental defectives could appeal for
administrative relief and possibly have their gun rights restored if they could demonstrate that
they were no longer afflicted by a disqualifying condition.
Veterans, Mental Incompetency, and Firearms Eligibility
In the 110th Congress, Senator Burr successfully amended the Veterans’ Medical Personnel
Recruitment and Retention Act of 2008 (S. 2969) in full committee markup on June 26, 2008.
The language of the Burr amendment would have provided that “a veteran, surviving spouse, or
child who is mentally incapacitated, deemed mentally incompetent, or experiencing an extended
358 Jonathan Weisman, “Democrats, NRA Reach Deal on Background-Check Bill,” Washington Post, June 10, 2007, p.
A02.
359 David Rogers, “Democrats Stall on Gun-Records Bill: Despite Support, Background-Check Measure Staggers in
Senate Amid Infighting,” Wall Street Journal, September 21, 2007, p. A6.
360 Seth Stern, “Coburn Blocks Gun Background-Check Bill, Citing Concerns About Privacy, Spending,” CQ Today,
September 25, 2007.
361 PTSD is an anxiety disorder that can occur after one has been through a traumatic event. Symptoms may manifest
soon after the trauma, or may be delayed. For further information, see U.S. Department of Veterans Affairs, National
Center for Posttraumatic Stress Disorder, Fact Sheet, http://www.ncptsd.va.gov/ncmain/ncdocs/fact_shts/
fs_what_is_ptsd.html.
362 Larry Pratt, “Veterans Disarmament Act To Bar Vets From Owning Guns,” September 23, 2007,
http://www.prisonplanet.com/articles/september2007/230907Disarmament.htm.
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loss of consciousness shall not be considered adjudicated as a mental defective” for purposes of
the Gun Control Act, “without the order or finding of a judge, magistrate, or other judicial
authority of competent jurisdiction that such veteran, surviving spouse, or child is a danger to him
or herself or others.” Senator Burr introduced a bill, the Veterans’ 2nd Amendment Protection Act
(S. 3167), that would have achieved the same ends as his amendment to S. 2969.
In the 111th Congress, Senator Burr reintroduced his bill as S. 669, and the Senate Committee on
Veterans’ Affairs reported this bill (S.Rept. 111-27) on June 16, 2009. Representative Jerry Moran
introduced a similar bill (H.R. 2547). The House Veterans’ Affairs Committee considered and
approved a similar provision that Representative John Boozman offered as an amendment to a
draft bill in full committee markup on September 15, 2010. This provision was included in the
reported version of the bill (H.R. 6132; H.Rept. 111-630). However, when the House considered
H.R. 6132 under suspension of the rules, an amended version of H.R. 6132 was called up that did
not include the Boozman provision.
Mental Defective Adjudications
Under 27 C.F.R. Section 478.11, the term “adjudicated as a mental defective” includes a
determination by a court, board, commission, or other lawful authority that a person, as a result of
marked subnormal intelligence or a mental illness, incompetency, condition, or disease, (1) is a
danger to himself or others, or (2) lacks the mental capacity to manage his own affairs. The term
also includes (1) a finding of insanity by a court in a criminal case and (2) those persons found
incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant
to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. Sections 850a, 876(b).
This definition of “mental defective” was promulgated by the ATF in a final rule published on
June 27, 1997.363 In the final rule, the ATF noted that the VA had commented on the “proposed
rulemaking” and had correctly interpreted that “adjudicated as a mental defective” includes a
person who is found to be “mentally incompetent” by the Veterans Benefit Administration
(VBA). Under veterans law, an individual is considered “mentally incompetent” if he or she lacks
the mental capacity to contract or manage his or her own affairs for reasons related to injury or
disease (under 38 CFR §3.353).364 In a proposed rulemaking, the ATF opined that the inclusion of
“mentally incompetent” in the definition of “mental defective” was wholly consistent with the
legislative history of the 1968 Gun Control Act.365 Reportedly, the VA could have been the only
federal agency that had promulgated a definition like “mentally incompetent” that overlapped
with the term “mental defective.”366
VA Referrals to the FBI
In November 1998, the VBA provided the FBI with disqualifying records on 88,898 VA
beneficiaries. VA rating specialists had determined based upon medical evidence that these
363 Federal Register, vol. 62, no. 124, June 27, 1997, p. 34634.
364 Federal Register, vol. 61, no. 174, September 6, 1996, p. 47095.
365 Ibid.
366 Personal communication with Compensation and Pension Program staff, Department of Veterans Affairs, July 9,
2008.
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beneficiaries were unable to manage their own financial affairs.367 The VA appointed a fiduciary
for purposes of receiving and managing each beneficiary’s VA benefits. According to the VA,
during the determination process beneficiaries were notified that VA proposed to rate them
“incompetent” and that they were able to request a hearing and submit evidence to the contrary if
they wished. VA also advised these beneficiaries regarding their right to appeal any final rating
regarding their ability to receive and manage their own VA benefits. Despite the resultant NICS
referral, however, the VA did not necessarily inform the beneficiary that he would lose his gun
rights as a consequence of this determination. As described above, under the P.L. 110-180 the VA
is required to inform the beneficiary of this outcome.
Interestingly, the Veterans Medical Administration has not submitted any disqualifying records on
VA medical care recipients to the FBI for inclusion in NICS for any medical/psychiatric reason
(like PTSD). While veterans with PTSD or any other condition, who have been involuntarily
committed under a state court order to a VA medical facility because they posed a danger to
themselves or others, are ineligible to ship, transport, receive, or possess a firearm or ammunition
under federal law, the Veterans Medical Administration would not make a related referral about
that ineligibility to the FBI. Instead, the state in which the court resides would submit the
disqualifying record to the FBI, if such a submission would be appropriate and permissible under
state law.368
Nevertheless, the decision by the VA to submit VBA records on “mentally incompetent” veterans
to the FBI for inclusion in the NICS mental defective file generated some degree of controversy
in 1999 and 2000.369 Critics of this policy underscored that veterans routinely consented to
“mentally incompetent” determinations so that a fiduciary (designated payee) could be appointed
for them. Those critics contended that to take away a veteran’s Second Amendment rights without
his foreknowledge was improper. They also pointed out that no other federal agencies were
providing similar disqualifying records to the FBI. This controversy subsided, but it re-emerged
when Congress considered the NICS improvement amendments (described above).
According to the Bureau of Justice Statistics, as of May 1, 2011, there were 130,886 files in the
NICS mental defective file, which had been referred to the FBI by the VA. Those VA files
accounted for 99.2% of mental defective files (131,979) referred to the FBI by any federal
department or agency. In the view of some Members of Congress, it may be incongruous that
other federal agencies, such as the Social Security Administration, that provide similar disability
and income maintenance benefits to persons who are mentally incapacitated refer relatively few,
if any, firearms-related disqualifying records about beneficiaries whom they serve to the FBI.
Moreover, there are other individuals in the U.S. population who are similarly incapacitated due
to their age-related infirmities or mental disabilities, but in many cases there are no mechanisms
for state or local authorities to make similar referrals to the FBI. As a consequence, even with the
changes put in place by P.L. 110-180, those Members of Congress may view the VA’s continued
referral of firearms-related disqualifying records on veterans who have had a fiduciary appointed
367 Personal communication with the Office of Congressional Affairs staff, Department of Veterans Affairs, February
10, 2012.
368 For further information on the treatment of mental illness and substance abuse for the purposes of gun control, see
Donna M. Norris, M.D. et al., “Firearm Laws, Patients, and the Roles of Psychiatrists,” American Journal of
Psychiatry, August 2006, pp. 1392-1396.
369 John Dougherty, “VA Give FBI Health Secrets: Veterans’ Records Could Block Firearms Purchases,” WorldNet
Daily.com, June 22, 2000; and “VA Defends Vets’ Records Transfers to NICS System,” New Gun Week, vol. 35, issue
1650, July 10, 2000, p. 1.
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on their behalf but have not behaved in a threatening or dangerous manner to be an unjustified
indignity placed on individuals who have served their country honorably in the Armed Forces.
Other Members of Congress would maintain that the VA has faithfully complied with the law and
that public safety is enhanced by making those referrals to the FBI. They might also argue that
opposition to the VA policy waned between November 1998 and the 2007 congressional debate,
demonstrating that veterans who were “adjudicated mental defective,” rarely, if ever, sought to
acquire and were subsequently denied firearms in a manner that could be described as an
injustice. Those Members would likely underscore that, in their view, the VA’s current policy does
not diminish national recognition of those veterans’ honorable service. Rather, the VA’s policy has
been implemented to protect those veterans and others from the harm that might result if they
acquired a firearm and used it improperly due to reasons possibly related to their mental
incompetency.
Public Housing and Firearms Possession and Use
In the 110th Congress, the House passed a bill (H.R. 6216) on July 9, 2008, that would have made
changes related to the administration of the public housing program administered by the
Department of Housing and Urban Development (HUD) through local public housing authorities
(PHAs). The bill includes a provision that would have prohibited the HUD Secretary from
accepting as reasonable any management or related fees charged by a PHA for enforcing any
provision of a lease agreement that requires tenants to register firearms that are otherwise legally
possessed, or that prohibits their possession outright. On the other hand, the bill would have
allowed PHAs to terminate the lease of any tenant who was found to be illegally using a firearm.
The gun-related provision in H.R. 6216 reportedly reflected a compromise.370 The original
language restricting fees for enforcing gun restrictions was included in a motion to recommit
offered during floor debate on a similar public housing bill (H.R. 3521). That bill was not
approved by the House, but was sent back to the House Financial Services Committee for further
consideration. A new version of the public housing bill (H.R. 5829) was introduced that included
language from the motion to recommit, but it did not include the lease termination proviso, and
the bill received no further consideration.
In the 111th Congress, the Financial Services Committee reported the Section 8 Voucher Reform
Act of 2009 (H.R. 3045; H.Rept. 111-277) on July 23, 2009. In committee markup,
Representative Price successfully amended the bill on July 9, 2009, with language that would
have prevented authorities from prohibiting firearms in public housing. The committee approved
another housing bill that included a similar provision (H.R. 4868) on July 27, 2010.
Concealed Carry and Reciprocity (Thune Amendment)
On July 22, 2009, the Senate considered an amendment (S.Amdt. 1618) offered by Senator Thune
to the FY2010 Defense Authorization Act (S. 1390) that would have arguably provided for
national reciprocity between states regarding the concealed carry of firearms. By agreement, the
amendment needed 60 votes to pass, but it was narrowly defeated by a recorded vote, 58-39.
370 Seth Stern, “House to Try Again on Public Housing Bill,” CQ Today, July 8, 2008.
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Senator Thune introduced a similar bill, the Respecting States Rights and Concealed Carry
Reciprocity Act of 2009 (S. 845).
As background, the issue of concealed carry under state law can be divided into four categories:
(1) no permit required, (2) mandatory or “shall issue,” (3) discretionary or “may issue,” and (4)
no concealed carry permitted. In Alaska and Vermont, state law allowed concealed carry without
a permit (no permit required), as is the case today. When the Thune amendment was debated, 35
states had “shall issue” laws, in that the state issues the permit as long as the applicant meets the
eligibility criteria.371 Eleven states were “may issue” states, in that the state had discretion in
whether to issue a permit.372 And, Wisconsin and Illinois state law prohibited the concealed carry
of firearms by civilians under any circumstances.
Many states with concealed carry laws have extended concealed carry privileges, or reciprocity,
to the residents of other states. According to the NRA, however, those concealed carry laws are
often very technical and subject to change. Moreover, there are no national eligibility criteria, or
training standards regarding concealed carry. Although the Thune amendment did not address the
issue of national standards, it arguably would have required “may issue” states to honor the
permits issued by “shall issue” states. By extension, it would also have required “shall issue” and
“may issue” states to honor the eligibility of all residents of Alaska and Vermont to carry
concealed firearms in their states, as long as those persons were not otherwise prohibited from
possessing firearms.
Bankruptcy and Firearms
Representative John A. Boccieri and Senator Leahy introduced the Protecting Gun Owners in
Bankruptcy Act of 2010 (H.R. 5827/S. 3654). This proposal would have amended federal
bankruptcy law to permit an individual to exempt from the property of his estate a single rifle,
shotgun, or pistol, or any combination thereof, as long as the total value of the exemption did not
exceed $3,000. On July 28, 2010, the House passed H.R. 5827 by a roll call vote (two-thirds
required) of 307-113 (Roll no. 479). In the 112th Congress, Representative Tim Griffin has
introduced a similar measure (H.R. 1181).
ATF Appropriations and Southwest Border Gun Trafficking
The 111th Congress considered legislation to either fund ATF or authorize increased
appropriations for the agency. The ATF enforces federal criminal law related to the manufacture,
importation, and distribution of alcohol, tobacco, firearms, and explosives. ATF works both
independently and through partnerships with industry groups; international, state, and local
governments; and other federal agencies to investigate and reduce crime involving firearms and
explosives, acts of arson, and illegal trafficking of alcohol and tobacco products.
371 At the time of the Thune amendment, “shall issue” states included Alaska, Arizona, Arkansas, Colorado, Florida,
Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana,
Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon,
Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and
Wyoming.
372 “May issue” states included Alabama, Connecticut, and Iowa. The following states are restrictive may issue states:
California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island.
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ATF Appropriations for FY2011373
The President’s FY2011 budget request included $1.163 billion for ATF, an increase of $42.2
million, or 3.8%, compared to the FY2010-enacted appropriation. Proposed increases (over base)
included $11.8 million for Project Gunrunner374 and $1.2 million for Emergency Support
Function #13 (ESF-13), the Public Safety and Security Annex to the National Response
Framework (NRF).375 The NRF sets broad responsibilities and lines of authority for federal
agencies in the event of a national emergency or major disaster. Under the NRF, the Attorney
General is responsible for ESF-13, which entails all hazards law enforcement planning and
coordination for the entire United States and its territories. The Attorney General, in turn, has
delegated his responsibility for ESF-13’s implementation to the ATF. On July 22, 2010, the
Senate Appropriations Committee reported an FY2011 CJS appropriations bill (S. 3636; S.Rept.
111-229). This measure would have provided ATF with $1.163 billion for FY2011, matching the
Administration’s request. On July 22, 2010, the Senate Appropriations Committee marked up and
reported the FY2011 Commerce, Justice, Science, and Related Agencies (CJS) appropriations bill
(S. 3636). The Senate bill would have matched the Administration’s request. In the absence of an
enacted CJS appropriations bill, Congress passed several continuing resolutions.376 As described
above, the 112th Congress finalized the FY2011 ATF appropriation and provided the agency with
$1.113 billion.
ATF Appropriations for FY2010377
For FY2010, the Administration requested $1.121 billion and 5,025 full-time equivalent (FTE)
positions for ATF, or $66.6 million and 68 FTE positions more than the amounts appropriated for
FY2009 ($1.054 billion and 4,957). Of the difference, $23.6 million and 22 FTE positions were
base adjustments. For Southwest border enforcement, the FY2010 request included a budget
enhancement of $18 million to support Project Gunrunner and $25 million for the new National
Center for Explosives Training and Research Center (NCETR). Compared to the enacted FY2009
level of funding, the FY2010 request would have provided a 4.9% increase.
For ATF, Congress appropriated $1.121 billion in the Consolidated Appropriations Act, 2010
(H.R. 3288). The President signed this bill into law on December 16, 2009 (P.L. 111-117).378 The
act provided an amount that was equal to the Administration’s request. This amount was $52.5
million more than the final FY2009-enacted amount, or an increase of 4.9%. Conference report
language (H.Rept. 111-366) indicated that the act included $18 million for Project Gunrunner, the
373 For further information, see CRS Report R41206, The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF):
Budget and Operations for FY2011, by William J. Krouse.
374 For further information on Operation Gunrunner, see CRS Report R40733, Gun Trafficking and the Southwest
Border, by Vivian S. Chu and William J. Krouse.
375 For more information, see CRS Report RL34758, The National Response Framework: Overview and Possible
Issues for Congress, by Bruce R. Lindsay.
376 For further information, see CRS Report RL30343, Continuing Resolutions: Latest Action and Brief Overview of
Recent Practices, by Sandy Streeter.
377 For further information, see CRS Report RL34514, The Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF): Budget and Operations for FY2008, FY2009, and FY2010, by William J. Krouse.
378 The conference report on the bill includes provisions for six of the seven FY2010 appropriations: Transportation-
HUD; Commerce-Justice-Science; Financial Services; Labor-HHS; Military Construction-VA; and State-Foreign
Operations. The Defense appropriations bill, H.R. 3326, was passed separately.
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same amount requested by the Administration. In addition, the act also included $10 million to
increase the Violent Crime Impact Team program, $6 million for construction (phase two) of the
NCETR, and $1.5 million to complete ATF headquarters construction projects.
On July 28, 2010, the House passed an FY2010 supplemental appropriations bill (H.R. 5875) that
included $39.1 million for ATF to increase Southwest border gun trafficking investigations. On
August 5, 2010, the Senate passed its version of H.R. 5875, which included $37.5 million for
ATF. On August 9, the House introduced a new border security supplemental bill (H.R. 6080),
which was subsequently passed by the House on August 10. This bill contained language
identical to Senate-passed H.R. 5875. Reportedly, the House took up the bill with a new number
to avoid a dispute related to its constitutional obligation to originate all revenue measures.379 This
dispute arose with the addition of funding provisions in Senate-passed H.R. 5875 that were not
included in the House-passed version. On August 12, the Senate passed H.R. 6080. On August 13,
the President signed H.R. 6080 into law (P.L. 111-230). It provides ATF with an additional $37.5
million for Project Gunrunner.
Southwest Border Gun Trafficking
On the Southwest border with Mexico, firearms violence has spiked sharply in recent years as
drug trafficking organizations have reportedly vied for control of key smuggling corridors into the
United States. In March 2008, President Felipe Calderón called on the United States to increase
its efforts to suppress gun trafficking from the United States into Mexico. In the 110th Congress,
the House passed a bill (H.R. 6028) that would authorize a total of $73.5 million to be
appropriated over three years, for FY2008 through FY2010, to increase ATF resources dedicated
to stemming illegal gun trafficking into Mexico as part of the Mérida Initiative.380 Similar
authorizations were included in S. 2867, H.R. 5863, and H.R. 5869. In the 111th Congress, similar
authorizations were included in several bills (S. 205, H.R. 495, H.R. 1448, and H.R. 1867).
Tiahrt Amendment and Firearms Trace Data Limitations
Representative Todd Tiahrt offered an amendment that placed several funding restrictions and
conditions on ATF and the FBI during full committee markup of the FY2004 DOJ appropriations
bill (H.R. 2799). While modified, those restrictions were included in the Consolidated
Appropriations Act, 2004 (P.L. 108-199). Amended to the ATF appropriations every year since
(FY2005-FY2012), the Tiahrt restrictions
• prohibit the use of any funding appropriated for ATF to disclose firearms trace or
multiple handgun sales report data for any purpose other than supporting “bona
fide” criminal investigation or agency licensing proceedings,
• prohibit the use of any funding appropriated for ATF to issue new regulations that
would require licensed dealers to conduct physical inventories of their
businesses,
379 Theo Emery and Edward Epstein, “Border Security Bill Passes in House,” CQ Today, August 10, 2010, online
edition.
380 For further information, see CRS Report RS22837, Mérida Initiative: U.S. Anticrime and Counterdrug Assistance
for Mexico and Central America, by Clare Ribando Seelke.
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• require the next-day destruction of approved Brady background check records,
and
• require ATF to include certain data disclaimers with any firearms tracing study it
releases.
Of these limitations, the first, dealing with disclosure of firearms trace or multiple handgun sales
report data, probably was and is the most contentious. A coalition of U.S. mayors, including New
York City Mayor Michael Bloomberg, maintain that they should have access to such data in order
to identify out-of-state federally licensed gun dealers who wittingly or unwittingly sell large
numbers of firearms to illegal gun traffickers.
For FY2008, the Tiahrt limitation on firearms trace and multiple handgun sales report data was
the source of debate when the Senate CJS Appropriations Subcommittee did not include this
limitation in its draft bill. Senator Richard Shelby amended the FY2008 CJS appropriations bill
(which became S. 1745) with similar, but modified, limitations in full committee markup. Similar
language was included in the House-passed CJS appropriations bill (H.R. 3093), and was
included in the Consolidated Appropriations Act, 2008 (P.L. 110-161; H.R. 2764), into which the
CJS appropriations were folded.381 The modified FY2008 limitation included new language that
authorizes ATF to
• share firearms trace data with tribal and foreign law enforcement agencies and
federal agencies for national intelligence purposes;
• share firearms trace data with law enforcement agencies and prosecutors to
exchange among themselves; and
• release aggregate statistics on firearms traffickers and trafficking channels, or
firearms misuse, felons, and trafficking investigations.
The FY2008 limitation, however, continued to prohibit the release of firearms trace data for the
purposes of suing gun manufacturers and dealers. Moreover, the limitation includes the phrase “in
fiscal year 2008 and thereafter,” which made it permanent law according to the Government
Accountability Office (GAO).382 Despite the futurity language, Congress has modified the
limitation’s language and included it (with futurity language) in the FY2009, FY2010, FY2011,
and FY2012 Commerce, Justice, Science (CJS), and Related Agencies Appropriations Acts (P.L.
111-8, P.L. 111-117, P.L. 112-10, and P.L. 112-55).
381 For further information, see CRS Report RS22458, Gun Control: Statutory Disclosure Limitations on ATF Firearms
Trace Data and Multiple Handgun Sales Reports, by William J. Krouse.
382 U.S. Government Accountability Office, “Bureau of Alcohol, Tobacco, Firearms, and Explosives—Prohibition in
the 2008 Consolidated Appropriations Act,” July 15, 2008, http://www.gao.gov/decisions/appro/316510.pdf.
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Appendix B. Major Federal Firearms and
Related Statutes
The following principal changes to the Gun Control Act have been enacted since 1968.
• The Firearms Owners’ Protection Act, McClure-Volkmer Amendments (P.L. 99-
308, 1986), eases certain interstate transfer and shipment requirements for long
guns, defines the term “engaged in the business,” eliminates some recordkeeping
requirements, and bans the private possession of machine guns not legally owned
prior to 1986.
• The Armor Piercing Ammunition Ban (P.L. 99-408, 1986, amended in P.L. 103-
322, 1994) prohibits the manufacture, importation, and delivery of handgun
ammunition composed of certain metal substances and certain full-jacketed
ammunition.
• The Federal Energy Management Improvement Act of 1988 (P.L. 100-615)
requires that all toys or firearm look-a-likes have a blazed orange plug in the
barrel, denoting that it is a non-lethal imitation.
• The Undetectable Firearms Act (P.L. 100-649, 1988, amended by P.L. 108-174,
2003), also known as the “plastic gun” legislation, bans the manufacture, import,
possession, and transfer of firearms not detectable by security devices.
• The Gun-Free School Zone Act of 1990 (P.L. 101-647), as originally enacted,
was ruled unconstitutional by the U.S. Supreme Court (United States v. Lopez,
514 U.S. 549 (1995), April 26, 1995). The act prohibited possession of a firearm
in a school zone (on the campus of a public or private school or within 1,000 feet
of the grounds). In response to the Court’s finding that the act exceeded
Congress’s authority to regulate commerce, the 104th Congress included a
provision in P.L. 104-208 that amended the act to require federal prosecutors to
include evidence that the firearms “moved in” or affected interstate commerce.
• The Brady Handgun Violence Prevention Act, 1993 (P.L. 103-159), requires that
background checks be completed on all non-licensed persons seeking to obtain
firearms from federal firearms licensees.
• The Violent Crime Control and Law Enforcement Act of 1994 (P.L. 103-322)
prohibited the manufacture or importation of semiautomatic assault weapons and
large-capacity ammunition feeding devices for 10 years. The act also bans the
sale or transfer of handguns and handgun ammunition to, or possession of
handguns and handgun ammunition by, juveniles (younger than 18 years old)
without prior written consent from the juvenile’s parent or legal guardian;
exceptions related to employment, ranching, farming, target practice, and hunting
are provided. In addition, the act disqualifies persons under court orders related
to domestic abuse from receiving a firearm from any person or possessing a
firearm. It also increased penalties for the criminal use of firearms. The assault
weapons ban expired on September 13, 2004.
• The Federal Domestic Violence Gun Ban (the Lautenberg Amendment, in the
Omnibus Consolidated Appropriations Act for FY1997, P.L. 104-208) prohibits
persons convicted of misdemeanor crimes of domestic violence from possessing
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firearms and ammunition. The ban applies regardless of when the offense was
adjudicated: prior to, or following enactment. It has been challenged in the
federal courts, but these challenges have been defeated.383
• The Omnibus Consolidated and Emergency Appropriations Act, 1999 (P.L. 105-
277), requires all federal firearms licensees to offer for sale gun storage and
safety devices. It also bans firearms transfers to, or possession by, most non-
immigrants and those non-immigrants who have overstayed the terms of their
temporary visa.
• The Treasury, Postal and General Government Appropriations Act (P.L. 106-58)
requires that background checks be conducted when former firearms owners seek
to reacquire a firearm that they sold to a pawnshop.
• The Homeland Security Act of 2002 (P.L. 107-296) establishes a Bureau of
Alcohol, Tobacco, Firearms and Explosives by transferring the law enforcement
functions, but not the revenue functions, of the former Bureau of Alcohol,
Tobacco and Firearms from the Department of the Treasury to the Department of
Justice.
• The Law Enforcement Officers Safety Act of 2004 (P.L. 108-277) provides that
qualified active and retired law enforcement officers may carry a concealed
firearm. This act supersedes state level prohibitions on concealed carry that
would otherwise apply to law enforcement officers, but it does not override any
federal laws. Nor does the act supersede or limit state laws that permit private
persons or entities to prohibit or restrict the possession of concealed firearms on
their property or prohibit or restrict the possession of firearms on any state or
local government property, installation, building, base, or park.
• The Protection of Lawful Commerce in Arms Act (P.L. 109-92) prohibits certain
types of lawsuits against firearms manufacturers and dealers to recover damages
related to the criminal or unlawful use of their products (firearms and
ammunition) by other persons.384 This law also includes provisions that (1)
increase penalties for using armor-piercing handgun ammunition in the
commission of a crime of violence or drug trafficking, (2) require the Attorney
General to submit a report (within two years of enactment) on “armor-piercing”
ammunition based on certain performance characteristics, including barrel length
and amount of propellant (gun powder), and (3) prohibits federally licensed gun
dealers from transferring a handgun to an unlicensed person without also
providing a secure storage or safety device.
• The Violence Against Women and Department of Justice Reauthorization Act of
2005 (P.L. 109-162) authorized to be appropriated for ATF the following
amounts: $924 million for FY2006, $961 million for FY2007, $999 million for
FY2008, and $1.039 billion for FY2009.
383 See CRS Report RL31143, Firearms Prohibitions and Domestic Violence Convictions: The Lautenberg
Amendment, by T. J. Halstead.
384 For further information, see CRS Report RS22074, Limiting Tort Liability of Gun Manufacturers and Gun Sellers:
Legal Analysis of P.L. 109-92 (2005), by Henry Cohen.
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• The USA PATRIOT Improvement and Reauthorization Act of 2005 (P.L. 109-
177) includes a provision that requires that the ATF Director be appointed by the
President with the advice and consent of the Senate.
• The Disaster Recovery Personal Protection Act of 2006, which was included in
the Department of Homeland Security Appropriations Act, 2007 (P.L. 109-295),
amended the Robert T. Stafford Disaster Relief and Emergency Assistance Act
(42 U.S.C. §5207) to prohibit federal officials from seizing or authorizing the
seizure of any firearm from private persons during a major disaster or emergency
if possession of that firearm was not already prohibited under federal or state law.
It also forbids the same officials from prohibiting the possession of any firearm
that is not otherwise prohibited. Also, the law bans any prohibition on carrying
firearms by persons who are otherwise permitted to legally carry such firearms
because those persons are working under a federal agency, or under the control of
an agency, providing disaster or emergency relief.
Author Contact Information
William J. Krouse
Specialist in Domestic Security and Crime Policy
wkrouse@crs.loc.gov, 7-2225
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