LOOPHOLES ARE LETHAL (PART II)
Who can buy a gun? Indeed, just what is a gun? Um, let’s pretend!
For Police Issues by Julius (Jay) Wachtel. Part I began with the bitter laments of Houston Police Chief Art Acevedo, who denounced politicians of the Red persuasion for assiduously protecting a loophole that allows domestic abusers – including an eventual cop-killer – to skirt Federal firearms regulations.
Sometimes, though, the aggrieved party is also Red-tinged. Like, say, Florida Governor Ron DeSantis. Here’s what he said two days after a foreign military student unleashed a barrage of handgun fire at a Pensacola naval station, killing three airmen and wounding eight: “That’s a federal loophole that he took advantage of. I’m a big supporter of the Second Amendment, but the Second Amendment applies so that we the American people can keep and bear arms. It does not apply to Saudi Arabians.”
DeSantis sports an “A” rating from the NRA, which endorsed him in the Governor’s race. He’s also a former Republican member of the House, thus presumably no fan of gun control. Yet it was precisely the loosening of such laws – done at the behest of his former colleagues, no less – that would one day let a Saudi trainee legally waltz into a gun store and buy the lethal .45 caliber Glock he used in the massacre.
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In June 1968 “The Omnibus Crime Control and Safe Streets Act” was passed. Among its provisions was a law (Title VII, sec. 1202[a]) prohibiting illegal aliens, meaning persons unlawfully in the U.S., from acquiring or possessing firearms. Several months later, the 1968 Gun Control Act would go on to forbid gun dealers and private individuals from transferring handguns to non-residents, meaning persons who lived in other states (18 USC sec. 922[b]. Long guns can go to residents of adjoining, “contiguous” States.) Lawfully present non-immigrant aliens (i.e., visitors) weren’t mentioned. To keep them from being excluded as potential gun customers, a regulation was then enacted stipulating that those who had been present in the same state for ninety consecutive days were “residents” for the purpose of buying a gun.
Then something really bad took place. On February 23, 1997 a Palestinian visitor opened fire on the observation deck of the Empire State Building, killing one and wounding six before committing suicide. Ali Hassan Abu Kamal had been in the U.S. about two months. He had spent all his time in New York except for a brief detour to Florida, a gun-friendly state notorious for helping the Big Apple’s residents circumvent their state’s restrictive firearms laws. Listing a motel room as his residence, Abu Kamal quickly secured a Florida I.D. card, then promptly used the document to buy a Beretta pistol in a Florida store.
Alas, at the time the only required “proof” that an alien had lived in a State for ninety days was their word. In reaction to the shooting, ATF promptly implemented a regulatory fix requiring that aliens buying guns provide documentary proof of their ninety-day tenure using utility bills, etc. A few months later Federal law was amended (July 21, 1998, pg. 16,493) to specify that aliens who were not “representatives of foreign governments” or “foreign law enforcement officers” could only acquire guns if they had been “admitted to the United States for lawful hunting or sporting purposes” or if they presented “a hunting license or permit lawfully issued in the United States” (18 USC 922[d] and [y]. The regulation imposing a ninety-day residence rule remained in effect.)
Considering what had happened, allowing any non-immigrants to acquire guns for any reason might seem excessively obliging. But legislators on the “Red” side of the aisle were concerned about barring potential customers from the gun marketplace. Here’s how the bill’s “Blue” author, Senator Dick Durbin (D-Ill) balanced it all out:
We tried to imagine the exceptions of those coming…on nonimmigrant visas who might need to own a gun for very real and legal purposes. Here are the exceptions…if you are someone who has come to the United States for lawful hunting…that person is exempt. That person may purchase a gun while here for that purpose….
Senator Larry Craig (R-Idaho) was pleased by the accommodation:
…I appreciate the willingness of the Senator from Illinois to modify his amendment. I think it is necessary and appropriate, and certainly the public understands that hunting is a lawful right and opportunity in this country. Certainly, foreign citizens that are here and go through the legal and necessary steps should be allowed that opportunity and to acquire a gun for that purpose while here is necessary and fitting.
In time, memory of the Empire State tragedy faded. In June 2012, a few months before Governor DeSantis was first elected to the House, Attorney General Eric Holder (he, of the very “Blue” persuasion) abolished the ninety-day residence test for legal aliens who wished to buy guns. Henceforth, “an alien lawfully present in the United States acquiring a firearm will be subject to the same residency and proof of residency requirements that apply to U.S. citizens.” His reasoning, “that the State of residence requirement…cannot [legally] have two different constructions—one that applies to U.S. citizens and another that applies to lawfully present aliens” supposedly reflected the best legal judgment. That it might have also signaled political concerns – it was, after all, an election year – we’ll leave for others to assess.
And that wasn’t the end of it. Holder’s move was followed by an ATF ruling that a hunting license “does not have to be from the State where the nonimmigrant alien is purchasing the firearm.” Ergo, another loophole. It seems that Governor DeSantis was wrong. The Second Amendment indeed applies to everyone, legal aliens included. (For another example of the unintended consequences of liberalizing gun acquisition by visitors to the U.S., click here.)
For another, even more tangible of how loopholes reproduce let’s turn to…ghosts. Guns, that is. Assembled from parts available online and the secondary market, so-called “ghost guns” cannot be readily traced. Increasingly common – as many as thirty percent of firearms seized by ATF in California are reportedly “ghosts” – they are of special appeal to criminals and those who want weapons such as assault-style rifles and machineguns that may be illegal under State or Federal law.
How did the problem of ghost guns come about? Blame a loophole. According to ATF and Federal law, the core of a firearm is its “frame or receiver.” Exactly what these are was left for a regulation to specify. Here’s how 27 CFR 478.11 responded to the challenge:
Firearm. Any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon….
Firearm frame or receiver. That part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.
Apparently, these definitions were too broad to satisfy the politicos. Perhaps they would have discouraged hobbyists and tinkerers. So ATF stepped in. Over time it settled on what’s been called the “eighty-percent rule,” meaning eight-tenths of the way to a fully operational firearm. An ATF website graphically suggests what it takes to hit that threshold. We filched two pictures. On the left, lacking “holes or dimples for the selector, trigger, or hammer pins,” is a non-gun. On the right is a “partially machined” version, which ATF classifies as a firearm.
Hobbyists and felons can legally buy “blanks” such as the one on the left online and by mail-order, no problem. These items aren’t subject to the controls imposed by Federal law until they’ve been tweaked. Let’s be honest and call this for what it is: a purposely crafted loophole. Alas, it’s enabling urban gangs to build up their arsenals of pistols and rifles in California, a state with some of the strictest gun control laws in the nation. And the consequences have been all too predictable. Consider, for example, the gunning down earlier this year of a California Highway Patrol officer (two colleagues were wounded) by a convicted felon using an AR-15 style rifle that was built from a legal blank and legally-available parts.
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Remember those loopholes from Part I? Say, about domestic abusers? In our polarized, politically-fraught land, when it comes to guns, pretending to regulate is the over-arching rule. Houston Police Chief Art Acevedo, Florida Governor DeSantis, and friends and family members of the late CHP officer Andre Moye would likely agree.
7/7/21 Declaring a “gun violence emergency” that particularly besets “poor, Black and Latino communities,” New York Governor Mario Cuomo pledged $139 million to fund jobs and deploy violence interrupters in inner-city neighborhoods. Ditto Los Angeles, where most of the burden also falls on poor neighborhoods. “There too many guns in too many hands,” says LAPD Cpt. Stacy Spell. “Ghost guns,” he noted, are proliferating. As of June officers have seized 661. That’s close to last year’s total haul of 813.
5/7/21 To combat the plague of unserialized, untraceable “ghost guns” ATF is seeking to do away with the “eighty-percent” rule. A proposed regulation would redefine a firearm “frame or receiver” to include “any externally visible housing or holding structure” for a “fire control component” such as the hammer or bolt. Any such housing that “has reached a stage in manufacture where it may readily be completed, assembled, converted, or restored to a functional state” would require manufacturer markings and a serial number and be subject to all the controls normally imposed on firearms.
4/29/21 Posting complete designs online for 3-D printed “ghost guns” is once again legal. An injunction that prohibited it because of the risk that such weapons might be used for terrorism was challenged by a 3D company, and their position was upheld by a panel of judges from the Federal 9th. Circuit.
4/27/21 Following Arizona’s lead, Montana enacted a law that prohibits State or local employees from assisting in the enforcement of any present or future Federal ban on firearms, magazines, or ammunition. Arizona law Montana law
4/10/21 Attorney General Merrick B. Garland announced four initiatives to fight the increase of gun violence: (1) An updated ATF study of firearms trafficking that addresses new technologies, such as 3D printers, that allow persons to make guns at home; (2) a regulatory fix that imposes background check and other requirements on the sale of kits that consumers use to assemble unserialized “ghost guns”; (3) another regulatory fix that essentially prohibits the use of commercially-available “braces” to transform pistols into short-barreled rifles; (4) crafting of model protective order legislation to encourage more States to adopt Red Flag laws.
4/9/21 President Biden announced a regulatory initiative that would expand the definition of a firearm to include kits that presently allow persons to assemble unserialized “ghost guns.” Regulations would also keep manufacturers from transforming rifles into so-called “pistols,” such as the gun recently used in the Boulder massacre, by the expedient of replacing stocks with “braces.” But other gun-control moves, such as a ban on importing assault weapons, would require legislation, and in this political environment enacting new Federal gun laws seems a reach.
3/27/21 In a recent meeting with firearms industry representatives, ATF suggested expanding its regulatory definition of a firearm to cut back on the proliferation of readily assembled, unserialized “ghost guns,” which are being used in violent crime. The reception was unenthusiastic. In December ATF agents searched the premises of Polymer80, a purveyor of “80 percent” pistol and assault rifle kits. ATF reportedly considered its handgun kits to be guns. But Polymer80 remains in business.
3/12/21 In 2015 Dylan Roof murdered nine church parishioners in South Carolina with a gun he bought at retail. Although he was Federally prohibited from acquiring firearms because he was a drug user, the FBI did not discover his drug arrest within the three days allotted for background checks. So Roof automatically got his gun. A flood of gun sales has also burdened the “Insta-Check” system, leading to “more than 4,800” gun transfers in 2018 to prohibited buyers. On March 11 the House passed a bill that would extend background checks to seven days, require them for transactions at gun shows and between private parties, and ban the manufacture and transfer of unserialized “ghost guns.”
2/24/21 State criminal history checks are required for sales by gun dealers. However, Federal law (18 USC 922[t]) allows transfers to proceed after three days should a check remains incomplete. Gun crimes have been committed by prohibited persons who took advantage of such delays. President Biden will reportedly sponsor regulations to correct this loophole and, as well, require criminal checks of persons who wish to assemble unserialized “ghost guns” from parts.
2/19/21 Baltimore police report that during 2020 officers recovered “more than three times” the number of untraceable “ghost guns” that were seized in 2019, when 119 were confiscated. A revision to Maryland law to bar persons from assembling their own guns has been proposed.
12/28/20 ATF rulings that to be legally defined as a firearm gun parts must be altered so the results equal “80 percent” of a working gun are being criticized in a Federal lawsuit filed by seventeen state attorney generals. They claim that fully operational “Ghost Guns” are easily assembled and constitute a ready source of unserialized, unregulated guns for criminals. Many are being recovered in homicides. Click here for a plaintiff's analysis of the controversy.
11/12/20 One year ago a 16-year old Southern California high school student shot and killed two classmates with an unregulated, unserialized .45 cal. pistol that was built from an “80-percent” frame. He then shot himself in the head. A recent lawsuit filed by the Giffords law Center, the victims’ parents and the State of California demands that ATF revise its definition of “firearm” to include these parts.
5/18/20 A.G. William Barr revealed that after Apple refused to help, the FBI eventually managed to unlock the iPhones possessed by Mohammed Alshamrani, the Saudi military student who opened fire at Pensacola. According to Barr, Alshamrani joined the Saudi air force “to carry out a ‘special operation’” for al-Qaida and used end-to-end encryption to communicate with his handlers. Barr stated that “our national security cannot remain in the hands of big corporations who put dollars over lawful access and public safety” and that a “legislative solution” is necessary. A.G. Barr’s prepared remarks
4/17/20 In testimony before the President’s Commission on Law Enforcement, a high-ranking ATF official identified “privately made firearms” as an important and “increasingly more common” gun source for criminals. Other sources mentioned included theft and straw purchase.
3/12/20 “Ghost gun” kits were banned by law in the District of Columbia. According to authorities, untraceable guns assembled from “eighty percent” kits were used in four recent D.C. homicides and the attempted murder of two police reserve officers.
3/2/20 Citing the use of untraceable “ghost guns” in local murders, including one this year, the District of Columbia’s mayor and police chief pressed for a law to ban the possession of gun parts kits in the District. They spoke by a table displaying homebuilt handguns seized by authorities.
3/1/20 On February 26 Anthony Ferrill, 51, an electrician, opened fire at the Milwaukee brewery where he was employed, killing five coworkers and himself. Ferrill had been in long-running disputes at work. Ferrill used two handguns, one reportedly equipped with a silencer. According to a neighbor, Ferrill was a hobbyist who assembled his own guns. He was twice charged with assault in the past, and had once allegedly pointed a gun at a vehicle.
2/1/20 Loopholes aren’t just about guns. Nicotine-hooked teens are continuing to get their preferred, tasty fix by substituting one-time use flavored vapes for banned Juuls. An obscure “footnote” in FDA rules that ostensibly limit flavoring to menthol allows disposable units offering a full range of flavors to keep being sold.
1/24/20 Concerned about the acquisition of untraceable “ghost” guns by criminals and terrorists, twenty States and D.C. are suing to prevent the Federal government from taking steps to reverse rules that, as presently interpreted, forbid posting plans for 3-D printed guns on the Internet.
1/17/20 Federal agents arrested reputed Maryland white supremacists Brian Lemley Jr. and Garfield Bilbrough IV, both from Maryland, and Patrik Mathews, an illegal immigrant from Canada on conspiracy and gun charges. According to a Federal criminal complaint, Lemley obtained an assault rifle upper receiver by mail order. He and Mathews then used this item and other gun parts to make a machine gun, which they fired at a range. They also allegedly acquired body armor and 1,500 rounds of ammunition. All three had intended to attend a rally in Virginia to protest its gun laws.
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Loopholes are Lethal (Part I) Where do They Come From?