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Colorado gun control debate highlights NRA's ATF obstruction

The Bureau of Alcohol, Tobacco, Firearms and Explosives has been hobbled for too long.
Photo illustration of a red layer being removed off a badge against a black dusty background . The badge reads,\"Department of Justice ATP U.S. Special Agent. A seal on it reads, \"Bureau of Alcohol, Tobacco, Firearms and Explosives, 1972\".
The NRA spent years hobbling ATF. It's time to reverse that trend.Anjali Nair / MSNBC; ATF

President Joe Biden on Tuesday took part in one of the most enduring traditions for presidents. Ten people are dead in Boulder, Colorado. They were killed Monday while grocery shopping, when a man with a gun designed to kill people shot lead into their bodies. With the Atlanta-area shootings just a week ago, the number of mass public shootings this year has already equaled the number during all of 2020.

In his statement on Tuesday, the president called for Congress to tighten gun control laws. If he and congressional Democrats really want to use all the tools the federal government has to bring down the number of people killed with guns each year, unfettering the Justice Department's Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF, has to be part of the solution.

Back in 2013, Mother Jones published a piece in which freelance writer Alan Berlow laid out how the National Rifle Association had systematically weakened ATF with the support of congressional Republicans. It has stuck with me through the years, as the bureau's impotence has continued to be on full display.

The restrictions have all focused on the bureau's mandated tasks: issuing licenses for federal firearm licensees, which then have to use the FBI's National Instant Criminal Background Check System when making sales; inspecting gun dealers for compliance with the law; and cracking down on illegal gun sales.

Those would be challenging enough, but ATF has to rely on a patchwork of laws to prevent illegal gun trafficking, since there's no comprehensive federal law against gun trafficking. And as Berlow's piece explained, over the years Congress has included a number of "riders," or "bits of permanent law tacked onto an appropriations bill," to the ATF's funding.

Some of the most restrictive are the Tiahrt Amendments, which seem perfectly tailored to keep ATF small and ineffective. These riders block ATF from centralizing records it gets from licensed gun dealers, keep ATF from disclosing to anyone the contents of a federal database that tracks guns that authorities recover from crime scenes, make it illegal for ATF to require gun dealers to create a paper trail of how many guns they have in inventory and require the FBI to have a way to destroy any identifying information in a background check within 24 hours of clearing a gun sale.

These provisions can be undone only with an affirmative act of Congress. And don't think about trying to transfer anything that ATF should be doing to another government body — there are riders blocking any funding for that, too. As things stand, ATF is so weak that it can't even strip licenses from gun dealers effectively, even after multiple infractions:

For gun dealers to lose their licenses, the A.T.F. must prove they “willfully” violated the Gun Control Act. Violating the law is not enough to justify the loss of a license; inspectors must prove that store owners knew they were acting illegally.

“Other regulatory statutes don’t have that,” said Adam Winkler, an expert on constitutional law and gun policy. “This is part of a larger pattern in the federal gun laws that make it hard for A.T.F. to enforce.”

Aside from passing laws to hamstring the bureau, Congress has also ensured that there has been a Senate-confirmed ATF director for only two of the last 15 years. The job began needing Senate approval only in 2006, at the urging of the NRA and other gun lobby groups. Almost every nominee has been met with a filibuster ever since, leading to a string of acting directors.

Meanwhile, ATF has been unable to enforce background check laws on unfinished gun frames, which must be registered and tracked. The current law is so weak that CNN reported in 2019 that the feds dropped a case against a seller for fear that a judge's ruling would make it legal for even convicted felons to acquire all the parts needed to put together an AR-15-style gun and other weapons.

None of the restrictions came in the aftermath of the "Fast and Furious" scandal, a misguided scheme to trace the flow of illegal weapons into Mexico, which Republicans have hammered Democrats with for years. But that didn't help reverse years of vilification of the bureau by gun dealers and lobbyists.

Normally, days after the Boulder shooting, the NRA would dependably begin its lobbying efforts to discourage any new laws, But the group is on its heels, and Democrats need to take advantage. The NRA faces numerous expensive legal challenges, and it has lost allies over its lavish spending on executives. It also spent only $28.5 million on the 2020 election — that's about nearly half what it spent in 2016 and only about $7 million more than gun reform group Everytown for Gun Safety spent.

As Biden noted Wednesday, two recently passed House bills await Senate approval. But these barebones efforts to expand background checks need more behind them to actually have an impact on the epidemic of gun violence.

Congress, which is to say Democrats, needs to heed Biden's call to reissue the assault rifles ban, as he helped to do when he was in the Senate. Beyond that, Congress should also move to strip out the riders limiting ATF's ability to track guns and to make gun store owners keep track of the weapons they have in their possession, while also making it clear that gun frames should be kept out of the hands of people barred from legally owning completed guns.

Lawmakers also need to finally carry out the Obama administration's recommendations to hire more agents to conduct investigations and inspect gun dealers to increase compliance with the laws already on the books.

Meanwhile, the Biden administration needs to nominate a new permanent head of ATF yesterday — the role can't be filibustered any longer, so he only has to persuade Senate Democrats. During the Trump administration, prosecutions of federal weapons violations went up — but those were mostly directed at the people in possession of the guns. Attorney General Merrick Garland needs to direct prosecutors to go more aggressively after gun dealers who violate the laws; then he and the ATF director must work to enforce current laws and get Congress to give him more money to do it.

The Boulder shooting won't be the last mass shooting of 2021. It might not even be the last mass shooting of March. We can't keep going like this.CORRECTION (March 23, 2021, 11:15 a.m.): A previous version of this article misstated when Biden spoke on the Boulder shooting. It was on Tuesday, not Wednesday.