Biden Pushes ATF Rule Change to Promote Ineffective Weapon Tracing

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U.S.A. –-(– On 11 April 2022, the Biden administration released the final version of a proposed rule which changes the definition of what is a firearm. The rule was signed by Attorney General Merrick Garland on April 10th. The final rule published in the Federal Register will be the definitive copy.

In the last days of the Johnson administration, in 1968, President Johnson managed to push through an unpopular, ineffective, and costly bill: the Gun Control Act of 1968 (GCA 1968). Johnson’s legendary ability to twist arms and manage votes, supported by an all-out onslaught in the media, used the assassination of Robert Kennedy as the crisis needed to pass the bill.

President Johnson was disappointed the bill did not include national registration of all guns and a national carry permit system. From presidency.uscb, quoting Johnson in his public remarks on GCA 1968:

Congress adopted most of our recommendations. But this bill–as big as this bill is–still falls short, because we just could not get the Congress to carry out the requests we made of them. I asked for the national registration of all guns and the licensing of those who carry those guns. For the fact of life is that there are over 160 million guns in this country–more firearms than families. If guns are to be kept out of the hands of the criminal, out of the hands of the insane, and out of the hands of the irresponsible, then we just must have licensing. If the criminal with a gun is to be tracked down quickly, then we must have registration in this country.

In the late 1960s, it was thought gun registration and licensing would reduce violent crime. The definitive studies of English gun control failure had yet to be published, or the failures of Canadian or Michigan handgun registration to solve violent crimes.

Gun registration was a bridge too far for American politicians.

The 1968 bill was an obvious prelude to a national gun registration system. It put in place a gun tracing system that had virtually no effect on crime, yet was costly and intrusive. After GCA 1968 went into effect, homicide and homicide with guns, continued to climb for 25 years. It only started to decline after the number of guns in the United States had doubled and states started to remove legal constraints on carrying guns.

Gun tracing in the United States has been a costly failure. The system was mandated in the 1968 bill. Instead of expanding the system, it should be eliminated. Bureaucracies focus primarily on their survival and expansion. It is not surprising the ATF paints gun tracing as important and useful. From the

As discussed in the NPRM, tracing is an integral tool for Federal, State, local, and international law enforecement agencies to utilize in their criminal investigations, and the proliferation of untraceable firearms severely undermines this process.

What is missing, is any serious analysis showing firearms tracing is effective in stopping the misuse of firearms or is in any way cost-effective. Virtually all gun tracing occurs after the fact.  Privately Made Firearms (PMF) in the ATF document, do not kill people any better than guns manufactured in regular factories. Once a gun is stolen or enters the black market, tracing it to the original retail sale does nothing to stop crime. There have always been millions of untraceable guns in the United States. Gun tracing is an exceedingly expensive and ineffective tool. Few firearm traces result in criminal prosecutions.  It is less effective than gun registration. Gun registration is exceptionally ineffective, expensive, and intrusive. It does not reduce violent crime.

If the resources used to collect and trace firearms data were instead used to investigate and prosecute actual violent crimes, the money would be much better spent.

The point of the ATF rule change is to make it harder for individuals to make their own guns, without the gun having a serial number.  One of the key differences is the possession of tools and jigs to make a firearm are now considered to be part of whether or not a “kit” is a firearm.

Never before have tools to make a firearm been banned because they allow someone to make a firearm more easily.  The idea seems to be that tools make it easier to make a firearm, therefore they make it easier to “convert” a piece of metal or plastic into a firearm. This, it appears, is meant to mean the plastic or metal piece is then “easily convertible”.

The theory appears to be the simple, discredited idea: More guns, more illicit violence.

There is no good evidence to show this is true.

Making it more difficult for private individuals to make their own firearms is a purpose without any benefit.  From page 132 of the document:

This rule is necessary to insure the continuing fulfillment of the congressional intent to mark and allow for tracing of all firearms.

The congressional intent is contested. Millions of firearms were grandfathered without serial numbers. There never was  a requirement that privately manufactured pistols, rifles or shotguns have a serial number. It was always known not all firearms, not even close to all firearms, would be marked to allow for tracing.

The intent to avoid a national registration system was clear.

This correspondent had to dig to determine whether AR15 upper receivers will be the part required to have a serial number when and if this rule goes into effect. It appears that it will.  From page 135 of the document:

For this reason, ATF is finalizing this rule to require placement of an individual serial number on a single frame or receiver of a given firearm. 

The statement appears to indicate the serial number will be on either the upper receiver or the lower receiver (where it is now), but not both. Then on pages 324-325:

(2) The term “receiver” means the part of a rifle, shotgun, or projectile weapon other than a handgun or variants thereof, that provides housing or structure for the primary component designed to block or seal the breach prior to initiation of the firing sequence (i.e., bolt, breechblock, or equivalent), even if pins or other attachments are required to connect such component to the housing or structure.

The above statement indicates the serial number would be on the upper receiver, not the lower receiver.

On page 331, it is clear the existing stock of AR15-type firearms will be grandfathered in with the serial number on the lower receiver.

The new rule adds considerable complexity to the existing regulatory system. It is inspired, in part, by court cases highlighting the difficulties with the previous rule.

The ATF, as expected, shrugs off any claims they are exceeding their authority under the non-delegation doctrine of the Constitution or the Administrative Procedures Act.

There are numerous other changes listed in the document. The actual proposed rule is stated in the last 45 pages. The ATF response to critiques on pages 62 – 280 is primarily about comments received in the rule-making process. They offer an excellent education in the critique of the rule and the ways ATF justifies itself.

Other major changes include restricting the location of markings on silencers; requiring multiple serial numbers on receivers that can be assembled from multiple parts; requiring maintenance of FFL records forever, instead of ending at 20 years; and serious uncertainty of what a firearm receiver or kit is. Essentially, ATF would retain the ability to determine such on a case-by-case basis.

Never before was the ownership or purchase of tools to make a firearm considered part of the equation of whether a firearm was possessed or not.

The rule will be challenged in the courts. It is scheduled to go into effect 120 days after publication.

It is likely the demand for uppers to build AR15-type rifles and pistols will increase during that period.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten