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The ATF Doesn’t Need an Activist Director

Kevin D. Williamson - Nation Review  | Published on 10/5/2021

The Senate should reject Joe Biden’s nomination of David Chipman to lead the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

If it does so, as seems likely, then, good riddance.

Chipman is an activist, but the ATF needs an administrator. Chipman would raise the temperature of the gun-control debate, when precisely the opposite is needed. Chipman has shown poor judgment — from engaging in racially tinged office politics to allowing himself to be used as an instrument of public relations by a Beijing-run propaganda program — and the ATF, of all federal agencies, has had more than enough of poor judgment over the years.

Much has been made of Chipman’s views on gun control, which lean to the left and tend to the extreme. His views are a legitimate reason to tank his nomination insofar as the ATF is a policy-making body. But it would be even better to establish, or to reestablish, the fact that the ATF is not properly a policy-making body, or, rather, that such policy-making as the ATF must necessarily conduct should take place only within the narrow bounds of its duty to execute the laws of the United States. Put another way: The ATF should not be a player in the gun-control debate or in gun-control policy as such, and attempting to use it as a pressure point to win policy victories that cannot be achieved in Congress or in the courts, as the Biden administration clearly hopes to do, is both wrong and counterproductive.

The content of firearms regulation at the federal level is a matter for Congress — not the president, not the ATF — and the limit of such regulation is established by the Second Amendment. The Second Amendment recognizes the “right of the people to keep and bear arms,” not for hunting or other recreational purposes but for militia action. This is why the plan of activists such as Chipman to prohibit the possession of certain semiautomatic rifles and other “military style” firearms is incompatible with the Bill of Rights, which emphatically was not written to defend the weekend hobbies of country gentlemen.

President Biden and others may roll their eyes at that 18th-century notion of a yeoman infantry armed against enemies foreign and domestic, although you’d think that the commander-in-chief of a government that has just surrendered to a half-organized rabble of Afghan heroin traffickers after 20 years of failure to achieve victory would be a bit more modest about his military’s prowess. But, in any case, we wrote down the Bill of Rights for a reason. If the Democrats want to repeal the Second Amendment, then there is a process for that. Good luck.

Until such a time as that might come to pass, the agenda of the gun-control movement is mostly off the table thanks to the Bill of Rights. And installing a gun-control activist in an administrative position in order to try to warp the bureaucracy into pursuing political goals that are either politically impossible for Congress or impermissible under the Bill of Rights is very bad governance.

The ATF is, at root, a revenue agency, and its agents, for all their risible cowboy swagger, are tax collectors.  The National Firearms Act is a revenue bill, imposing an excise tax on the transfer and sale of firearms; the ATF was, for most of its history, part of the Treasury Department, and as the Alcohol and Tobacco Tax Division it was a department within the IRS; its role in the alcohol and tobacco industries was principally that of a tax office until the post-9/11 reorganization of the federal government, when those duties were handed over to a new agency within the Treasury Department. And, like the IRS, the ATF is infamous for its abusiveness and incompetence.

There is, in fact, very little need for anything beyond a modest minimum of firearms regulation at the federal level. The states and cities are perfectly capable of regulating firearms sales, conducting background checks, etc., subject to the limitations of the Second Amendment. We already have a system in which firearms regulations, like environmental regulations, digital-privacy standards, public education, and much else, vary significantly from state to state. That federalist diversity is good and proper: Preserving it is, in fact, why we have 50 states instead of a single, unitary national state. And while the Bill of Rights establishes certain bounds that must be respected, there is no reason that Manhattan has to have the same firearms regulations as rural Wyoming, or even that the rules on the Las Vegas Strip have to be precisely the same as, say, those 15 miles away in unincorporated Sloan, Nev.

The federal role in the firearms trade, properly understood, is not trivial but limited. The federal government has a legitimate role to play in the import and export of firearms, in interstate commerce in firearms and ammunition, and, perhaps most important, in policing and prosecuting interstate criminal enterprises involved in the illegal trafficking of firearms. With the exception of that last issue, the ATF’s business should be almost exclusively a matter of ensuring, for health-and-safety purposes, that commercially available firearms and ammunition subject to ATF jurisdiction meet minimum quality standards, that ammunition is manufactured to the proper technical specification, etc. The agency should not be policing the design of firearms based on assumptions about the behavior of gun owners. To the extent that that is legitimate, it is a statutory matter rather than a regulatory one. The issue for the ATF should be whether the product functions as it is designed to, not whether the ATF approves or disapproves of that design on political grounds.

To the extent that there are law-enforcement functions for the ATF to serve, it should carry out those duties rigorously and consistently. Unfortunately, the ATF currently fails to do that.

For example, every year some number, likely thousands, of firearms sales are wrongly approved because of deficiencies in the background-check system. The troubles in that system are not the ATF’s fault — it does not administer the system, which is handled, and mishandled, by the FBI. The share of buyers rejected by the background-check system is relatively small (less than 1 percent), in part because convicted felons and other prohibited purchasers generally know not to try to purchase firearms from licensed dealers and instead choose to acquire them on the black market or with the help of straw buyers. But there are some prohibited buyers who try a licensed dealer, in some cases because they do not know that they are prohibited buyers, as sometimes is the case with parties who are subject to certain court orders (generally related to domestic violence), but who have not been charged with or convicted of a crime.

Of the ineligible buyers who purchase from a licensed dealer (and hence are subject to a background check), a small number are wrongly approved — usually because the background check didn’t occur with the statutory limit of three business days, after which the sale can legally proceed. It doesn’t have to proceed, and many licensed firearms dealers will not hand over a weapon to a buyer until there is a positive federal approval. But many will complete the transaction, and, in some of those cases, the government will decide after the fact that the sale should have been denied. After which, the government does . . . nothing, most of the time. The government will spend days or weeks researching a potential buyer, but, even when federal officials know that a prohibited buyer has been approved, the ATF — with its 5,100 agents, its 25 field offices, and its $1 billion-plus annual budget — will almost never take the relatively simple step of recovering those firearms.

Three-quarters of federal firearms prosecutions are on a single charge: unlawful possession by a felon or transfer to a felon. These cases typically result from a felon’s being arrested or searched on unrelated grounds by local authorities. The overwhelming majority of them have very little to do with federal policework; they could be just as easily brought to trial if there were no such thing as the ATF.

On the important matter of illegal firearms trafficking, the ATF is not what you would call energetic. There are about 150 prosecutions a year for unlawfully engaging in the business of firearms. There are a handful of ammunition cases — maybe one or two a year, though they got really froggy in 2009 and managed . . . three.

By way of comparison, there are about 20,000 federal drug prosecutions a year.

After trafficking, the most common federal firearms case is the charge of making a false statement on your background-check paperwork: In 2007, there were only 201 of these cases, and that was the high-water mark. In many years, there are fewer than 100.

Though its roots are in revenue, the ATF produces no appreciable income for the federal government. As a law-enforcement agency, it is a complacent bureaucracy that does relatively little effective investigatory work while expending a great deal of time and effort on the regulation and oversight of lawful businesses with federal licenses, fixed addresses, regular hours of operation, vast and detailed documentation, and other attributes that make them attractive to the bureaucratic temperament.

The proper application of the Second Amendment is not something that should be litigated in the ATF’s executive suite. The agency and its management should be as kept as far away from activists like Chipman as possible — and activists like Chipman should be kept as far away from the agency as Senate Republicans can manage. That being said, we do have interstate and international gun-trafficking problems that need seeing to, we do need to collect guns that we know to be in the wrong hands, and we do need to improve the administration of the ATF. If the Chipman nomination fails, as expected, Biden should look outside of the activist community and find a nominee who might be expected to improve the ATF operationally and administratively. Someone such as recently bounced Democratic senator Heidi Heitkamp of North Dakota, currently employed in the fruitless task of trying to sell the Democratic Party to rural voters, would be a good choice.

In any case, what the ATF needs is an administrator more interested in enforcing the law than in rewriting it.